A lot of fuss over a pin

That is the Navy Special Warfare Insignia.  Known as the Trident, or as a "Budweiser" pin, we've seen it frequently in movies about the Navy's elite SEALs.  Former U.S. Senator Bob Kerry wore the Trident, along with his Medal of Honor.  So did the "Legend", Chris Kyle.  Add President Teddy Roosevelt's great-grandson, Theodore Roosevelt IV.

It doesn't come easy.  Basic Underwater The movies have given us depictions of some of the training one must successfully complete to earn a Trident.  Even those portrayals may not fully convey the difficulty of "Hell Week" during which the trainees go through five days and five nights with only four hours of sleep during that time.  Between 73% and 75% of the enlisted personnel who begin the process of becoming a Navy SEAL will not make it.  It is a 58 week program.  When you've put in that much work, it is easy to understand why that Trident is important to those who have earned it.  It is a tight-knit community.

I get why Eddie Gallagher wants to retire with his Trident on his uniform, and thanks to Donald J. Trump, he will.  Some support this decision and some oppose it.  The now former Secretary of the Navy, Richard Spencer supported the Navy admirals who wanted a review board to determine if Gallagher should lose his Trident.

Like Trump, Mr. Spencer was a businessman before he was appointed as Secretary of the Navy.  Unlike Trump, Mr. Spencer served in the military.  Five years as a Marine aviator, rising to the rank of Captain before he left the military.

If Mr. Spencer did go to the White House, proposing a back-room deal that would give the Navy's officer leadership the Review Board they desired; while allowing Gallagher to keep his Trident, that would be wrong.  It would be much worse if he did, as alleged, do this without discussing it first with Defense Secretary Mark Esper.  Mr. Esper should fire anyone who does such a thing.

That doesn't address the question, does what Eddie Gallagher was convicted by court-martial of doing warrant the removal of his Trident?  Normally, when one is convicted at court-martial and sentenced to confinement, a reduction in paygrade to E-1 (the lowest pay grade) is part of the sentence.  But based on allegations of prosecutorial misconduct, the Chief of Naval Operations (CNO) Mike Gilday overruled that requirement and allowed Gallagher to be reduced from E-7 to E-6 only.  Ultimately, Trump reversed that reduction in rank.

Little mention is made of what happened in the case of Chief Gallagher's supervisor during the time the alleged war crimes took place, LT Jacob Portier.  He was originally charged with failure to report a war crime, destroying evidence and impeding the investigation into the allegations against Chief Gallagher, as well as conducting a re-enlistment ceremony next to the corpse and encouraging his enlisted personnel to pose for photos with the body.

On August 1, 2019, then-CNO Admiral John Richardson ordered that all charges against LT Portier be dropped.  He was three weeks away from retiring and insists that this was his own decision, not that of Donald Trump.

Was there prosecutorial misconduct in the handling of Chief Gallagher's case?  That does appear to have happened.  Should that be part of the calculus of determining guilt or innocence at a court-martial?  I believe it should.  But that court-martial board found Chief Gallagher guilty of this charge.

The New York Times tells us that 154 Navy SEALs have lost their Tridents since 2011.  Since there are normally fewer than 3,000 SEALs on active duty at any time, that's over 5% of the SEALS that have served in the last 8 years.

Petty Officer 1st Class Aaron Howard was a member of the famed SEAL Team 6 when he allegedly "catfished" several women, enticing them to send him nude photos of themselves.  He is facing a court-martial in the case.  But as reported by the Navy Times, the leaders of SEAL Team 6 may have used unlawful command influence in the case.

The military's record on dealing with the specific war crime of posing for photos with dead bodies is wildly inconsistent.  In 2012 the Los Angeles Times published photos of members of the famed 82 Airborne Division posing with body parts in Afghanistan.  Those pictures were taken two years earlier.  In spite of assurances by then-President Barrack Obama that those responsible would be held accountable, there is no record of any judicial or non-judicial punishment being imposed on anyone involved.  It should be noted that while the Pentagon was highly critical of the actions of those soldiers, they did ask the LA Times to not publish the photos.

Months before the LA Times published those photos, video of four Marines urinating on the corpses of Taliban fighters surfaced.  Two of those Marines were court-martialed.  SSGT Joseph Chamblin was convicted and sentenced to 30 days confinement and a reduction from E-6 to E-5.  His conviction was later overturned by a military appeals court, with unlawful command influence once again rearing its ugly head.  SSGT Edward Deptola pleaded guilty and under a pre-trial agreement, the sentence was limited to a reduction from E-6 to E-5.  The judge hearing the case wanted to impose a sentence of six months confinement, a reduction from E-6 to E-1, a fine of $5,000 and a bad-conduct discharge.

Chief Gallagher is going to retire with 20 years of service.  Under the military retirement pay system in place when I served, losing one pay grade would severely impact his retirement pay.  But it would not have impacted him under the High 36 or CSB/REDUX plans that he gets to choose from.

There is a part of me that would like to see his Trident pulled for his war crime.  But there is also a part of me that is okay with him retiring with his Trident on his uniform.  I deplore the war crime.  But I respect that he did a difficult job that few are willing or capable of doing.

What I have a real problem with is that Donald Trump, a man who has had the hashtag #CadetBoneSpurs hung on him for his cowardice in dodging the draft, injecting himself into the military disciplinary system in this way.  If he wants to pardon war criminals, fine.  That's within his purview.  But his predecessors have wisely allowed their generals and admirals to run the military justice system without presidential influence.  Will the actions of Trump embolden other military personnel to commit similar transgressions?  That remains to be seen.  But I find that possibility alarming.

Trump's Tax Returns

The law is clear.  The tax returns of any individual or business are private.  That is made clear in 26 U.S. Code § 6103. Confidentiality and disclosure of returns and return information.  That is the section of the Internal Revenue Code that protects the privacy of the returns of individuals and businesses.

There are notable exceptions.  One is that state tax agencies can be given access to federal income tax returns when needed in the administration of state laws.  Another is that tax returns can be subpoenaed as part of a criminal investigation.  We will come back to that a bit later.

Buried in that portion of the Internal Revenue Code is Section 6103(f)(1) which was added to the code after the Teapot Dome Scandal.  The history of this change to the IRC is described quite well in an article by George K. Yin, Edwin S. Cohen Distinguished Professor of Law and Taxation at the University of Virginia.

But when House Ways and Means Committee Chair Richard Neal asked for six years of Trump's tax returns under the authority granted in the aforementioned section of the IRC, Treasury Secretary Steve Mnuchin denied the request.  He said that it lacked a "...legitimate legislative purpose."

There is also an attempt to obtain eight years of Trump's tax returns going on in New York, where New York County District Attorney Cyrus Vance, Jr., has subpoenaed them from the accounting firm that Trump has used for many years.  That firm has said it will comply with the subpoena, but Trump's attorneys are challenging the subpoena.

Two different attempts going on to get those tax returns, but not for the purpose of releasing them to the public.  Odds are good the public will never see Trump's tax returns, other than the few pages that were leaked in the past.

That's the legal stuff.  The question is, does a president or a presidential candidate have a moral responsibility to release their tax returns to the public?  I think they do.

* * *

Trump says we don't need his tax returns because of the financial disclosure forms he is required to file.  His 2018 filing is here.

On page 15, as part of the list of assets is item 030.  Trump National Golf Course in Jupiter, FL.  The value on this financial disclosure is listed as being more than $50,000,000.  He plays here on occasion when he is staying at his Mar a Lago home.

In January of 2018, he sued Palm Beach County, saying that their assessed value of $19.7 million is too high.

Wait a moment.  His financial disclosure form says it is worth over $50 million, but he claims in a lawsuit that it is worth less than half that amount?  Why is that not an impeachable offense?  The Ethics in Government Act allows for imposition of civil penalties for a false claim on a financial disclosure form.  It also allows for criminal penalties (including imprisonment) for "...anyone who knowingly and willfully falsifies or conceals any material fact..."

Perhaps Congress should amend the Ethics in Government Act to require the signature on financial disclosure forms to state that they are being signed under penalty of perjury.  After all, we have to sign our tax returns under penalty of perjury.