Did Trump Just Accidentally Ruin The Case Against Bowe Bergdahl?

Analysis
Sgt. Bowe Bergdahl leaves the Fort Bragg courthouse after a sentencing hearing on Monday, Oct. 23, 2017, on Fort Bragg, N.C. Bergdahl, who walked off his base in Afghanistan in 2009 and was held by the Taliban for five years, pleaded guilty to desertion and misbehavior before the enemy.
Photo via Associated Press

Army Sgt. Bowe Bergdahl was set for sentencing on Oct. 23 after pleading guilty last week to abandoning his combat post in Afghanistan in 2009. But the punishment of the much-despised soldier has been delayed, thanks to comments by President Donald Trump — comments that, due to his authority as commander-in-chief, could end up letting Bergdahl go free.


Bergdahl’s defense team filed a last-minute motion on Oct. 23 to completely dismiss the case against him, citing past statements in which Trump had referred to the sergeant as “a no-good traitor who should have been executed” during his presidential campaign. Those comments, the defense argues, are tantamount to unlawful command influence.

Army Col. Jeffery R. Nance, the military judge overseeing Bergdahl’s case, had ruled in February that Trump’s statements as a candidate (and, therefore, a private citizen) didn’t rise to the level of undue command influence. But Nance had also assured Bergdahl’s defense team that they could raise the issue again if Trump commented publicly on the case. Last week in a press conference, Trump said he’d decline any comment on Bergdahl’s guilty plea but quickly added: “I think people have heard my comments in the past.”

Related: Bergdahl Enters Guilty Plea To Desertion, Misbehavior Charges Without Plea Deal »

That statement, delivered as commander-in-chief, casts a pall over the sentencing proceedings, Bergdahl’s lawyers say. "President Trump stands at the pinnacle of an unbroken chain of command that includes key participants in the remaining critical steps of the case," the defense argued in its motion, according to the Los Angeles Times.

On Oct. 23, Judge Nance allowed attorneys to question him regarding the impact of Trump’s statements, and he ultimately delayed the sentencing until Oct. 25 so he could thoroughly consider the defense motion, the Associated Press reports.

“I don't have any doubt whatsoever that I can be fair and impartial in the sentencing in this matter," Nance told the AP. "[But] the member of the public that we are interested in maintaining confidence in the military justice system... is going to be influenced by context.”

Army Sgt. Bowe BergdahlPhoto via DoD

This is the second time in October alone that public posturing by a politician has threatened to taint military investigations. In an Oct. 4 letter to acting Secretary of the Army Ryan McCarthy, Sen. Marco Rubio demanded the branch nullify the military commission of 2nd Lt. Spenser Rapone, the West Point graduate, Afghanistan combat veteran, and self-identified member of the Democratic Socialists of America who posted photos of himself wearing a Che Guevara shirt under his uniform and a “Communism Will Win” sign tucked into his cover on Sept. 24.

The Air Force Court of Appeals in May 2017 also reversed a conviction in the sexual assault case U.S. v. Boyce after finding that public statements by Sens. Claire McCaskill and Kirsten Gillibrand regarding the “Marines United” scandal earlier this year created “the appearance of unlawful command influence” in the case, as retired Col. Don Christensen, a former Air Force chief prosecutor and current president of the advocacy group Protect Our Defenders, told Task & Purpose at the time.

Related: Did Marco Rubio Ruin The Case Against A Communist West Point Grad? »

The court wrote in Boyce that “the appearance of unlawful command influence” exists “where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant double about the fairness of the proceeding” — a calculus evident in Nance’s own public comments on Oct. 23.

Boyce sets a very weak precedent; as Christensen told us, its influence on the Bergdahl proceedings will depend on whether judges like Nance read the brief in the first place.

But it may well be a factor in Nance’s reasoning. Given Trump’s talent for saying (and tweeting) more than previous presidents have seen fit to, it seems possible that the commander-in-chief may have inadvertently thrown a monkey wrench into Bergdahl’s sentencing — and, in turn, offered one of the most reviled figures of the Global War on Terror a get-out-of-jail-free card.

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