Bowe Bergdahl’s Conviction Overturned

The trial judge had a conflict of interest.

NYT (“Judge Vacates Bowe Bergdahl’s Conviction and Dishonorable Discharge“):

A federal judge on Tuesday wiped out the conviction and sentence of Bowe Bergdahl, the former Army sergeant who walked off a base in Afghanistan in 2009 only to be held captive by the Taliban for five years, and whose release in a prisoner swap prompted intense controversy.

In a 63-page ruling, Judge Reggie B. Walton of the Federal District Court for the District of Columbia vacated all the court-martial proceedings against Sergeant Bergdahl after October 2017. At the time, the military judge in the case, Jeffery R. Nance, then an Army colonel, applied for a job with the Justice Department under President Donald J. Trump, a step he did not disclose. Mr. Trump had repeatedly railed against the sergeant, calling him a traitor and suggesting that he be executed.

The ruling could lead to a second trial before a new judge. After Sergeant Bergdahl pleaded guilty to desertion and to endangering the American troops sent to search for him, Colonel Nance reduced his rank to private and ordered him dishonorably discharged, although he did not sentence him to prison.

Eugene R. Fidell, a lawyer for Sergeant Bergdahl, called the decision “an important victory,” but said it was not yet clear how the military or his client would proceed, including whether either side will appeal.

The defense could challenge a portion of Judge Walton’s ruling in which he rejected its argument that the entire case should be thrown out because of the comments by Mr. Trump.

Colonel Nance had earlier rejected a similar motion, and he had submitted that ruling as a writing sample with his job application at the Justice Department. Judge Walton said those circumstances raised the appearance of potential bias that required redoing the case.

The case, he said, presented “a unique situation where the military judge might be inclined to appeal to the president’s expressed interest in the plaintiff’s conviction and punishment when applying” for a job as an immigration judge.

The situation is rather bizarre but the ruling strikes me as appropriate. Nance made repeated rulings on questions of unlawful command influence that, while I agree with them, are necessarily clouded by his ambition to get a job in the Trump administration. (He was indeed appointed to a position as an immigration judge, where he has a much higher-than-average record of denying asylum applications.)

Candidate Trump had, along with the late Senator John McCain (then the chairman of the Senate Armed Services Committee), made speeches disparaging Bergdahl as a traitor and demanding justice. By the time Bergdahl was set for trial, Trump was commander-in-chief. Nance, correctly in my view, ruled that neither presidential candidates nor Members of Congress are in the chain of command and therefore unable to exercise unlawful command influence—although he did call Trump’s comments about the case “disturbing.” But, again, the fact that he was applying for a job in the administration clouds that ruling.

We’ll see whether the Army/the Biden administration decides to appeal or pursue a retrial. Bergdahl pled guilty, after all, and the case against him is incontrovertible. He doesn’t deny abandoning his post; he claims that he was going to report bad conditions in the unit. And men were wounded trying to locate him. But, since Nance rejected prosecutor demands for jail time, citing five years of torture at the hands of the Taliban, it’s not obvious how much effort the service is going to spend rehashing a stale case in order to restore Bergdahl’s reduction in rank and dishonorable discharge.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Daryl says:

    I am shocked, shocked, that DJT is somehow involved with a corrupt judge.
    The most interesting thing about this story is that Trevor Reed, the former US Marine who was wrongfully detained in Russia for nearly three years before being released in a prisoner swap negotiated by Biden, was injured while fighting in Ukraine.

  2. DrDaveT says:

    I don’t know anything about how military judges are appointed for courts martial. It seems like the vetting process in this case was wildly inadequate. How is it supposed to work, and did it work that way this time?

  3. Jay L Gischer says:

    I guess if you’re going to do things as a judge to curry favor with powerful people, you have to be on the Supreme Court. Otherwise, people can do something about it…

  4. James Joyner says:

    @DrDaveT: I don’t have deep knowledge of the process but there doesn’t strike me anything problematic about how it worked here. He was a career JAG who was a year or so away from mandatory retirement and applying for post-retirement gigs. That’s all perfectly normal. It’s just that, because Trump had made these statements about the case and he was trying to land a political appointment—and, indeed, used his rulings in this case as part of that—there’s the impression Bergdahl didn’t get a fair trial from him. But that disqualification came after the appointment, so there’s no way anyone would have had reason not to appoint him to oversee the case.

  5. steve says:

    This seems technically correct but I think the sentencing by the judge was pretty appropriate. Seems like they could have left it alone. OTOH it sure is nice to see some concern over judicial ethics.