Obtained by ABC News(WASHINGTON) — The attorney for a former Green Beret charged with murder in the death of a suspected Taliban bomb maker in Afghanistan in 2010 welcomed President Donald Trump's tweet that he will review his client's case.
But the sympathetic desire to review Maj. Mathew Golsteyn's case has military legal experts questioning whether Trump may be exerting "unlawful command influence" in the case by interfering in the legal process before Golsteyn has even had a court hearing.
Last week, Golsteyn was charged with premeditated murder in February 2010 of an Afghan man suspected of having been a Taliban bomb maker responsible for the deaths of two Marines.
On Sunday, Trump tweeted, "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."
"We are very appreciative that he's going to take a look at it and hopeful that he would take action to resolve this issue for Matt," Golsteyn's attorney Phillip Stackhouse told ABC News in a phone interview Monday.
Asked on Monday to comment about the president's tweet, the White House referred back to the social media post and declined to provide any additional comment. A spokesman told ABC News that the White House does not traditionally comment on cases that may be under consideration for clemency and pardon.
"The allegations against Maj. Matt Golsteyn are a law enforcement matter," said Col. Rob Manning, a Pentagon spokesman. "The Department of Defense will respect the integrity of this process and provide updates when appropriate."
But Trump's possible review is problematic, according to a prominent military legal expert.
"The president's tweet is extremely troubling because it's it's touching the third rail of military justice," Eugene Fidell told ABC News. "It's commonly said that unlawful command influence is the mortal enemy of military justice."
Fidell, a visiting lecturer at Yale Law School, has served as an attorney in several high-profile military cases. He was most recently an attorney for Bowe Bergdahl, a former soldier who was held by the Taliban for five years and last year pleaded guilty to desertion and misbehavior before the enemy.
Fidell described Trump's sympathetic offer to review the case as "a distortion of the administration of justice even if it's for the benefit of the accused in a particular case."
The Army has not announced any dates for the initial court hearings that will determine whether Golsteyn will face a court martial. His attorney, Stackhouse, estimates the Article 32 hearings, as they are known by the military, may not be held until next spring.
That's one reason why Fidell thinks the possibility that the president could offer Golsteyn a pardon should wait until the military justice system has had a chance to determine all the facts in his case.
"Until there's a proper, on the record, public investigation and ventilation of the facts of the case it would be very unfortunate for him to do that," said Fidell.
There are different narratives about what happened when the Afghan man died on Feb. 18, 2010. What is not in dispute is that the investigations were prompted by Golsteyn's own comments.
The Army’s initial investigation was triggered in late 2011 by Golsteyn's acknowledgement during a CIA job interview that he had killed the suspected Taliban bomb maker.
Golsteyn had told the CIA that he had killed the man out of concerns for the safety of the tribal leader and that he could have posed a future threat to U.S. troops, according to Army documents.
That investigation did not result in any charges being filed against Golsteyn, even though investigators determined he had committed murder and conspiracy.
He eventually lost his Special Forces tab and a Silver Star for heroism in a battle two days after the Afghan man's death.
Then in late 2016, a new investigation was triggered after Golsteyn admitted in a Fox News interview that he had killed the man.
The Army's narrative of events, as laid out in documents obtained by the Washington Post in 2015 under the Freedom of Information Act, is that Golsteyn and his team detained the man after finding explosive materials at his home that were similar to those used in the bomb that killed the two Marines.
Taking the man to his home after a 24-hour detention, Golsteyn allegedly killed the man there and buried him in a shallow grave, Army documents said. Later that night, Golsteyn and two other soldiers dug up the remains and brought them back to their base where they burned his remains in a burn pit.
According to Golsteyn’s lawyer, that’s not what happened. Stackhouse told ABC News that after having been released, the suspected bomb maker was not killed at his home. He said the man was killed along a road in southern Marjah, after he carried out an ambush against Golsteyn’s troops. He acknowledged that Golsteyn disposed of the body, but he could not say how.
Stackhouse claims that the initial 2011 Army Criminal Investigations Command (CID) narrative has been wrong from the start beginning with the CIA’s characterization of Golsteyn’s comments.
“It’s just that CID put the wrong information in the investigation and repeated it over and over again,” said Stackhouse.
In an interview with Fox News on Monday, his wife Julie said that her husband was cleared of wrongdoing in 2015.
"We have moved on with our lives," she said. "We moved, had a new baby, we have moved on. We are waiting for someone to do the right thing."
Golsteyn was put on "voluntary excess leave" in August 2016 which is a non-paid status used for soldiers experiencing long-term administration issues who can't be formally discharged from service.
But he reported back on active duty in early December as the Army worked to finalize the ongoing investigation.
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