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 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.
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Rugh has not yet ruled on whether to dismiss murder and attempted murder counts against Gallagher.
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.
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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.
