As throngs of reporters and military officials filed out of the Naval Base San Diego courtroom where Navy SEAL Chief Edward R. Gallagher had just been sentenced for taking photos with a deceased combatant, another SEAL — wearing pressed whites and the shining gold Trident badge of the SEALs — waited with his attorneys to file in and take their seats.
Navy Lt. Jacob X. Portier’s legal fight with the Navy is just beginning.
Portier is charged with a number of offenses related to those Gallagher fought during his 2 1/2-week trial. Portier is charged with conduct unbecoming an officer, for allegedly conducting Gallagher’s reenlistment ceremony near a dead enemy combatant — the same fighter Gallagher was found not guilty of murdering.
Portier also is charged with dereliction of duty because, prosecutors say, he failed to supervise Gallagher that day. He’s also charged with failure to report war crimes allegations against Gallagher and with obstruction of justice for allegedly destroying evidence.
Portier denies the charges and pleaded not guilty.
A prosecution team shake-up was announced at Portier’s hearing Wednesday. Cmdr. Chris Czaplak, who was removed from the Gallagher prosecution team in May, also has been removed from Portier’s case.
Czaplak, in coordination with the Naval Criminal Investigative Service, was caught embedding tracking links into emails he sent to defense attorneys for Gallagher and for Portier.
Lt. Scott McDonald, who helped prosecute Gallagher, has taken the lead in Portier’s case. Lt. Frank Santamaria is the other prosecutor.
In another shake-up in Portier’s case this week, the judge, Navy Capt. Jonathan Stephens, made his last appearance. He is transferring to another command. It’s unclear who will take over for Stephens, but he said from the bench that it would likely be Navy Capt. Aaron Rugh.
Rugh, who was the judge in Gallagher’s trial, was in the courtroom during Portier’s hearing. He told The San Diego Union-Tribune he could not comment on whether he would be taking over the case because he had not officially been assigned to it.
Portier’s lead civilian defense attorney, Jeremiah Sullivan, told the Union-Tribune on Tuesday, after Gallagher was found not guilty on most of the charges against him, that he did not see why the service was continuing to prosecute his client.
“Despite the acquittal of Chief Gallagher, the Navy is going ahead with its prosecution of Lt. Portier,” Sullivan said outside the courtroom. “The pursuit of Portier is a vendetta.”
Portier’s trial is scheduled for Sept. 3.
Portier’s role loomed large in Gallagher’s trial. Many members of Gallagher’s platoon said Portier was aware of the allegations against Gallagher long before the platoon returned from its Iraq deployment in September 2017.
Portier’s commander in Iraq, Lt. Cmdr. Robert Breisch, testified under a grant of immunity that he ordered Portier to have photos that the SEALs took with the deceased combatant deleted while the platoon was still in Iraq.
On Tuesday, Gallagher was found not guilty of six of the seven counts against him, including premeditated murder and attempted murder. He was found guilty of posing for photos with a dead enemy fighter. He was sentenced to four months’ confinement, loss of two-thirds of his basic pay for four months, and had a reduction in rank to E-6.
Gallagher served more than six months in pretrial confinement after his arrest Sept. 11, so he will likely be credited for time served.
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