Outside the Beltway

Bergdahl’s Sentence Could be Reduced Because of Trump Comments

Can the commander-in-chief's tweets be unlawful command influence?

James Joyner · Tuesday, July 2, 2019 · 6 comments

President Trump wanted former Army Sergeant Bowe Bergdahl shot for desertion. Those comments may reduce his sentence or even overturn his conviction.

The Bowe Bergdahl case went back to court on Thursday, when the Army heard an appeal arguing that President Donald Trump’s comments about a conviction and prison time for the former soldier amounted to undue command influence and interfered with his right to a fair trial.

The Army Court of Criminal Appeals convened a three-judge panel to hear the case, according to the court docket.

“The president has tainted everything,” Eugene Fidell, a Yale Law School lecturer and former Coast Guard judge advocate who represented Berdahl, told the panel, Military.com reported on Friday.

Bergdahl, then a sergeant, pleaded guilty to desertion and misbehavior before the enemy in 2017, for deserting his post in 2009 while deployed to Observation Post Mest-Malak in Afghanistan’s Paktika province, with 4th Brigade Combat Team, 25th Infantry Division.

He was quickly captured by insurgents and held hostage until 2014, when the Obama administration negotiated his return in exchange for five Guantanamo Bay detainees.

The judge in his case did not sentence him to prison, instead ordering him busted down to private, a fine of $10,000 and a dishonorable discharge.

Trump weighed in multiple times over the proceedings, tweeting and making public comments that favored his execution.

“In the old days when we were strong and wise, we [would] shoot a guy like that,” he said in 2015, as he campaigned for president.

At the time of the trial, Bergdahl’s legal team argued that Trump’s comments had tainted the trial. The judge, Army Col. Jeffrey Nance, declared them mitigating evidence, which can reduce punishment in sentencing.

Still, Fidell filed for an appeal. Officially, the appeals panel considered whether the president had an influence on court proceedings even if he doesn’t preside over them, whether that influence placed “an intolerable strain on the public’s perception of the military justice system” and whether the average person — with all the facts of the case in front of them ― would have doubts about the fairness of the trial.

Though Trump let up on the rhetoric once he took office, he did not withdraw nor double down on his comments during an October 2017 press conference in the White House Rose Garden.

“I think people have heard my comments in the past,” he said.
An attorney for the government argued that unlawful command influence doesn’t apply to Trump in this case, because if a president is subject to the Uniform Code of Military Justice in this instance, they should be subject to it entirely.

—Meghann Myers , Army Times, “The Army is considering overturning Bowe Bergdahl’s sentence“

The government’s argument here is absurd. No, the President isn’t subject to the UCMJ. But, as the commander-in-chief, he’s absolutely capable of committing unlawful command influence.

I’ve written about UCI many times before, even going so far as to argue that we should remove most offenses that would be felonies in civilian courts from the military justice system. That’s because, while UCI has traditionally been about local commanders pressuring their subordinates to convict and/or harshly sentence soldiers they themselves have recommended for prosecution, we’re increasingly seeing high-level political pressure brought to bear.

In particular, we’ve seen senior civilian officials and uniformed service chiefs arguing that we need to show no tolerance for those accused of sexual assault because victims almost never lie. Senior officials have a dual role: they’re both running the day-to-day force but also shaping policy. That latter role is vital and often done with the best of intentions but can nonetheless create an environment that makes it difficult for a particular defendant to get a fair trial. Indeed, it can essentially reverse the burden of proof and presumption of innocence.

In this particular case, however, Trump was speaking as a private citizen presenting himself as a candidate for the presidency. It’s hard to argue that someone not in command can have unlawful command influence. While he didn’t disavow those comments once he became Commander-in-Chief—and, indeed, hinted that he still believed what he said then—it’s hard to believe he had much, if any, influence on the disposition of Bergdahl’s case.

Further, Bergdahl pled guilty and his sentence was decided by a judge, not a jury of his fellow soldiers. While military judges are of course members of the military and subordinate to the President, they’re simply much less likely to be influenced by Twitter rants than an ordinary young solider untrained in the law.

UPDATE: See Doug Mataconis’ February 2017 post, “Judge In Bergdahl Court Martial Calls Trump’s Comments About Case ‘Disturbing’” for an alternative take. Obviously, the ruling went the other way at the time but Bergdahl is getting a second bite at the UCI apple.