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Military Judge Declines To Dismiss Case Against Bowe Bergdahl Based On Trump’s Comments

Bowe Bergdahl

The military Judge hearing the court martial proceeding against Sgt. Bowe Bergdahl on desertion and other charges has ruled that pre-election comments by President Trump did not sufficiently prejudice the case against him to warrant dismissal:

A military judge in North Carolina ruled on Friday that while President Trump’s campaign-trail calls for the execution of Sgt. Bowe Bergdahl were “troubling,” his statements had not prejudiced the Army’s case against the sergeant, and that he saw no reason to dismiss the serious charges against him.

Sergeant Bergdahl, 30, faces a court-martial as soon as April on charges of desertion, which carries a potential five-year sentence, and endangering troops sent to search for him, which carries a potential life sentence. The charges came after he walked off his remote Army outpost in Afghanistan in 2009 and was held captive by the Taliban for five years, until President Obama approved a deal to swap him for five detainees from Guantánamo Bay prison.

While campaigning last year, Mr. Trump repeatedly denounced Sergeant Bergdahl as a “dirty rotten traitor,” and even mimicked the sound of a rifle as he pantomimed a firing squad executing him.

After Mr. Trump was sworn in as president, Sergeant Bergdahl’s lawyers asked the military judge handling the case, Col. Jeffery R. Nance of the Army, to dismiss the charges. They said a fair trial was now impossible given such inflammatory comments from the man who is now the military’s commander in chief.

In his ruling on Friday, Judge Nance wrote that Mr. Trump’s statements “were disturbing and disappointing,” and carried a “problematic potential” for the case.

But the judge concluded: “No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial.”

Sergeant Bergdahl’s chief defense lawyer, Eugene R. Fidell, said he would appeal the ruling to the United States Army Court of Criminal Appeals on Monday.

“The issues presented are of tremendous significance for the rule of law in the armed forces and the integrity of the military justice system,” Mr. Fidell said during a telephone interview.

Mr. Fidell had contended that Mr. Trump’s statements constituted “unlawful command influence,” which is defined in military case law as commanders or anyone with the “mantle of command authority” wrongly taking actions that influence decisions about a defendant’s fate.

Since all the officers who could play a role in deciding the outcome of Sergeant Bergdahl’s case — including the judge and jurors — now ultimately report to Mr. Trump, they cannot be impartial in deciding guilt or innocence, Mr. Fidell argued.

As I noted when I wrote about this motion a few weeks back, Trump’s attacks on Bergdahl as a candidate weren’t limited to a single instance. Usually, they were used as a proxy for an attack on President Obama and his policies in the war on terror, including policies that included the release of certain prisoners from confinement at the prison on the American base at Guantanamo Bay, Cuba. Over the course of his campaign, he referred to him at various points as a “dirty, rotten traitor,” as a “traitor” who should be executed for his crimes, although Bergdahl does not face the death penalty in the instant case against him, and he repeated those charges at various times during the campaign. So far at least, though, Trump has not made any similar comments since winning the election or since becoming President in January, and that appears to be the distinction that the Judge handling case is relying upon in his ruling.

The defense argument in this case relied on an idea called ‘undue command influence’ that is unique to the military criminal justice system and exists primarily due to the fact that due to the nature of the chain of command in the military. Essentially, it is designed to ensure against the possibility that the officers and the Judge hearing the case against Bergdahl, or any other military criminal defendant, aren’t unduly impacted by superior officers who are actively trying to influence the outcome of a criminal case one way or the other, or who appear to be doing so to the extent that the members of the jury or the Judge might feel that they are being compromised in their effort to not consider anything other than the facts, evidence, and law presented to them at trial. In its most recent application in cases that became public, the doctrine was used to dismiss sexual misconduct charges after President Obama and top military commanders had made public comments about the importance of cracking down on sexual assault cases in the military. Those generic comments were later found sufficient to warrant the dismissal of claims against a Marine and a member of the Navy.

Had Trump been President when he made these comments, it’s entirely possible that the outcome of this ruling would have been different. Also, if Trump were to repeat these or similar comments while Bergdahl’s trial is pending then it is likely that his attorneys will renew their motion and that the outcome will be different given the fact that Trump is now Commander in Chief. It’s also possible that this ruling will be overturned on appeal. As things stand now, though, the case against Bergdahl will continue to move forward, although there may be a delay while the appeal of this motion is considered.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    If Obama’s comments, which did not specifically address the cases in question, were enough to call the independence of the military court into question and warrant a dismissal, I don’t see how one can claim that Trump’s comments calling for Bergdahl to be executed wouldn’t do the same — he is commander in chief now, his comments were much stronger and more specific, and there is no way to unsay the comments.

    Of course, the law isn’t about seeking consistent and just outcomes, it’s about following laws with all their warts and oddities and basically hoping that the laws were written so the inconsistent and unjust outcomes that do result are few and favor the defendant. I didn’t think Obama’s comments should have caused the sexual harassment cases to be dropped, but I can understand the outcome. Here the influence seems more problematic — a direct statement about a specific case, even if he was not yet commander in chief — but the law is the law.

    That said:

    But the judge concluded: “No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial.”

    I see Trump as a petty and vindictive man who says what he means, means what he says, and is just plain mean. I can certainly believe that he would try to retaliate against anyone who let Bergdahl walk. So, I think the judge is very wrong, or possibly intimidated.

    On an unrelated note, what is the “endangering soldiers sent to rescue him” charge about? Does it require a deliberate action to endanger anyone, or just being somewhere dangerous? If he were in a rocky crevice surrounded by mountain lions, rather than captured by the taliban, would that count?

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  2. @Gustopher:

    I haven’t seen or read the opinion in this case so I don’t know for sure, but from the numerous descriptions of it, it appears to me that the fact that Trump made his comments as a civilian rather than as President was the operative fact behind the Judge’s decision. It’s a distinction that makes sense, I suppose.

    As I note in the post, though, if Trump repeats what he said before, or something similar, then it’s likely that this motion would be renewed and the outcome could end up being far different.

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  3. @Gustopher:

    what is the “endangering soldiers sent to rescue him” charge about? Does it require a deliberate action to endanger anyone, or just being somewhere dangerous? If he were in a rocky crevice surrounded by mountain lions, rather than captured by the taliban, would that count?

    I believe its the fact that he deliberately left his post without explanation, leaving authorities to wonder if he had been captured or simply wandered off. As a result search teams were sent into enemy territory to try to find him and bring him back, and that’s where the danger. The argument is that Bergdahlt either knew or reasonably should have known that this is how the military would respond to his desertion and that he therefore knowingly led fellow soldiers into what could have been a trap laid by the enemy. I don’t think the presence of mountain lions in the region would be treated in the same manner.

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  4. Gustopher says:

    @Doug Mataconis: well, it’s a distinction, at any rate.

    I am not really willing to give Trump the benefit of the doubt that he doesn’t mean the horrible things that he says, and I think the judge is in error to do so. The quoted part of the decision about “seeing campaign rhetoric for what it is” strongly implies that we are supposed to treat Trump’s statements as somehow not valid because they were campaign rhetoric.

    Given the number of people who will be grievously harmed or killed by the Trump administration (let’s start with the botched raid in Yemen), I don’t think Bergdahl matters that much. Even Bergdahl’s strongest defenders are of the “well, sure he’s guilty, but he suffered enough already” variety, but life being what it is some will suffer disproportionately compared to others.

    (I’m more of the “we do a grave disservice to our men in uniform by not identifying the Bergdahls and getting them out” variety. I hope his lawyers appeal, because he has been and likely will continue to be used as a political football, but he rates pretty low in the big pile of injustices in the world.)

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  5. MarkedMan says:

    I understand the distinction but suspect it is just more “conservative” justice, wherein they come up with any rationalization that lets them do what they want to do, and then abandon it when their desires change. So “conservatives” (the quotes are deliberate), who generally feel that middle aged white males are unfairly harassed by floozies over a little harmless slap and tickle, and who also resented the presidency of one young black Barack Hussein Obama, rationalized a way to let one of their own off while simultaneously embarrassing Obama. Now that they want a different outcome, they come up with a different rationale.

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  6. JohnMcC says: