SAN DIEGO — A military judge on Monday took the rare step of removing a prosecutor accused of misconduct from the war crimes case of a decorated Navy SEAL.
Capt. Aaron Rugh ordered Cmdr. Christopher Czaplak removed from the case of Special Operations Chief Edward Gallagher after defense lawyers accused the prosecution of spying on their emails, according to the ruling.
The defense asked Rugh to dismiss the case or remove prosecutors because of a surreptitious effort to track defense emails without court approval in an effort to find the source of news leaks.
Rugh said it was not in his power to determine prosecutorial misconduct, but there was the possibility of a conflict of interest that required Czaplak to be removed, the ruling said.
Rugh has not yet ruled on whether to dismiss murder and attempted murder counts against Gallagher.
A Marine Corps lawyer, Capt. Conor McMahon, assigned to the case will not be removed, Rugh said, but it’s not clear if he will stay on the prosecution team. McMahon’s commanders ordered him to stop participating in the case last week and he didn’t appear at hearings on Thursday and Friday.
The Navy would not say if he would remain on the team.
Czaplak will be replaced with another attorney from the Navy, spokesman Brian O’Rourke said.
“Chief Petty Officer Gallagher is entitled to a fair trial, and the Navy is committed to upholding that principle,” O’Rourke said.
Last week, Rugh unexpectedly released Gallagher from custody as a remedy for interference by prosecutors.
The removal could delay the trial scheduled to start June 10.
Republicans in Congress have rallied in support of Gallagher, saying he has been mistreated. President Donald Trump, who intervened to move Gallagher to better confinement, has considered dismissing the charges.
Gallagher pleaded not guilty to murder in the death of an injured teenage militant in Iraq in 2017 and to attempted murder for picking off two civilians from a sniper’s perch.
It is extremely unusual for a military judge to remove the prosecution or dismiss a case only days before the start of a trial. The military justice system has gotten few war crime convictions and been criticized for being ineffective.
Gallagher’s lawyers condemned the prosecution for embedding tracking code in emails sent to them and a journalist to find the source of news leaks.
At hearings last week, Rugh indicated he was misled about the effort. He said investigators told him privately they planned to embed code in what he believed to be a court document to help them find the source of leaks but the judge said he didn’t have the power to authorize such a tactic and wasn’t told they planned to target emails sent to the defense lawyers or a journalist.
Evidence at the hearings showed prosecutors enlisted a Naval Criminal Investigative Service intelligence specialist to conduct criminal background checks on three civilian lawyers and a Navy Times journalist who has broken several stories based on leaked documents.
Defense attorney Tim Parlatore, who was among the three lawyers investigated, accused prosecutors of a “rogue, relentless, and unlawful cyber campaign” that may have violated attorney-client privilege and hurt his client’s ability to get a fair trial.
Czaplak downplayed the move, saying the embedded code recorded nothing more than where and when messages were opened by recipients.
Another prosecutor, Lt. Scott McDonald said the effort only gathered data, such as internet protocol addresses, and did not snoop on the content of emails or require a search warrant.
“Even if there was some intrusion” in violation of attorney client-privilege, it didn’t rise to the level to dismiss the case, McDonald said.
Czaplak said the tracking ended May 10 after he was confronted by Parlatore who discovered the code in an unusual logo of an American flag with a bald eagle perched on the scales of justice beneath the prosecutor’s signature.
Czaplak said the code was similar to what marketers use to determine when an email is opened and on what device.
Several experts testified that the code couldn’t generally be used to identify a specific person or capture content.
Parlatore confirmed the ruling, but said he couldn’t discuss the details.
Melley reported from Los Angeles.