Trump’s Intervention in the Golsteyn Case: Judicial Independence, Military Justice or Both?

The final two months of 2018 have been a remarkably eventful period for observers of American civil-military relations—even for the Trump administration. In just the final two months of 2018, there was the pre-midterm election deployment of troops to the southwest border in response to the supposed “invasion” of the migrant caravan. There was the abrupt announcement of “mission accomplished” against the Islamic State in Syria and the decision to withdrawal substantial forces from Afghanistan, contrary to advice from senior military commanders and to the surprise of most of Congress. There was Secretary of Defense James Mattis’s unusual resignation in protest, giving two months’ notice, followed by President Trump’s decision to relieve him effective immediately. There was Trump’s first trip to a combat zone after two years in office, during which he defied expectations and broke security protocols by filming and naming special operators, and during which he later appears to have enjoyed a “MAGA” hat-autographing political rally with uniformed troops.

Somewhat lost amidst the clutter of the headlines is still another instance of political encroachment into military affairs: Trump’s recent interest in the case of former Army Maj. Matt Golsteyn, who is accused of killing a suspected combatant in a manner that would have violated the law of war and the Uniform Code of Military Justice. The president tweeted that he was “reviewing [Golsteyn’s] case”—prompting speculation over whether Trump might derail the case by issuing a pardon. Though the Golsteyn matter may be less high-profile as a question of civil-military relations than some of Trump’s other activities, it raises a novel concern. Is the prudence of a president’s involvement in an ongoing military prosecution a question of judicial independence, as such interjections are usually framed, or is it is instead a question of civil-military relations as an issue of military justice?

The answer has become less straightforward thanks to a recent Supreme Court opinion. But whether such presidential involvement is defined as a CMR problem or a justice problem affects public expectations on at least three fronts: how a president should engage with institutions of government; the legal posture and professional interests of the military’s chain-of-command; and the individual accused servicemember. To be clear, choosing one frame over the other does not indicate a preference for presidential interest over presidential abstention. The choice is over which frame to use to interpret and judge the presidential action, whichever it might be.

The Tweet Heard ‘Round the Courtroom

On the afternoon of Dec. 16, 2018, Trump injected himself into an ongoing criminal prosecution via Twitter.

At the request of many, I will be reviewing the case of a “U.S. Military hero,” Major Matt Golsteyn, who is charged with murder. He could face the death penalty from our own government after he admitted to killing a Terrorist bomb maker while overseas. @PeteHegseth @FoxNews

— Donald J. Trump (@realDonaldTrump) December 16, 2018