Donald Trump’s Unlawful Command Influence.
Sergeant Bowe Bergdahl is not exactly a sympathetic figure. In 2009 he deserted his post and was captured by the Taliban. Numerous soldiers risked their lives searching and attempting to rescue him. While hard to pin down, it appears some soldiers were killed and seriously wounded in these efforts.
Berghdahl was not treated well in his five years with the Taliban. He was cruelly confined, tortured and beaten. He was freed in a controversial deal when the Obama Administration agreed to release 5 Guantanamo Bay prisoners in exchange.
Then Candidate Trump was highly critical of the deal, and of Bergdahl. Before cheering crowds he declared that Bergdahl “should be shot” for walking away from his post. He went on to say “in the good old days, he would have been executed.” Trump promised that if he were elected President, and Bergdahl did not receive jail time, that he would review the case. This comment typified the Trump rants:
“In the old days he’d get shot for treason. If I win, I might just have him floating right in the middle of that place and drop him, boom. Let ’em have him. … I mean, that’s cheaper than a bullet.”
This was typical of many such campaign statements made by the future Commander in Chief.
In time, Sergeant Bergdahl would be tried by Court Martial for his desertion. Early in the proceedings, in February, his defense counsel filed a Motion to Dismiss arguing that then Candidate Trump’s statements constituted “Unlawful Command Influence” as he had since been elected President. Unlawful Command Influence is a doctrine requiring that the chain of command detach itself from legal proceedings against a soldier to avoid influencing, or even the appearance of potentially influencing the judicial process. It is a fundamental right of due process. This Constitutional protection is also codified by statute at 10 U.S.C. 837(a) and Article 37 of the Uniform Code of Military Justice:
No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.
On February 24th the judge denied the defense motion to dismiss. The judge found then Candidate Trump’s words “troubling” and stated “Candidate Trump’s comments were disturbing and disappointing.”
Key to the Judge Nance’s decision rejecting the Motion to Dismiss was that “when he made the referenced comments about the accused and his alleged offenses, he was only Candidate Trump.” The judge noted, at the time, that Trump had not said anything about Bergdahl since August 2016, before the election. The judge dismissed Trump’s statements as nothing more than “inflammatory campaign rhetoric” “to enflame the passions of the voting populace against his political opponent” common to political campaigns.
To a reasonable, sober minded, or just flat out sane President, Judge Nance in that February decision was sending a clear message to President Trump to not say anything, now that he is President, that could be interpreted as unlawful command influence. Alas, this impetuous and emotionally immature President could not do it. He almost got there, but not quite.
At 1:00 pm on October 16th Bergdahl entered a guilty plea. Barely an hour later at a press conference a reporter asked Trump if Bergdahl could get a fair trial after Trump’s prior comments. Trump answered in two devastating ways. First by saying he knew he shouldn’t say anything, and then by saying something anyway:
Bergdahl’s defense immediately pounced on that last sentence. The defense argued Trump’s saying “I think people have heard my comments in the past” adopted those statements now as President. It was a reminder to all in the military, to include those hearing Bergdahl’s case, that this President wanted Bergdahl executed, and if not at least jailed this President would intervene in the case.
Judge Nance agreed and found Trump’s statement to indeed constitute Unlawful Command Influence. In the words of the Judge in his ruling:
“the plain meaning of the President’s words to any reasonable hearer could be that in spite of knowing that he should not comment on the pending sentencing in this case he wanted to make sure everyone remembered what he really thinks should happen to the accused. He is the commander in chief of all the armed forces. He has the power to fire or otherwise take adverse administrative action against any active army officer involved in the trial of this case from sentencing forward.”
Judge Nance denied the Motion to Dismiss on what I have to say are sketchy grounds. The judge argued that circumstances unique to him as a judge, who would solely impose the sentence in the case, make him immune to the President’s attempt to unlawfully influence him. Judge Nance pointed out that he has a mandatory retirement date of November 1, 2018 and has “no hope or ambition for promotion beyond my current rank” of Colonel. Declaring that his “only motivation as military judge has been to be fair and impartial and to do justice in every case” Judge Nance stated “I am completely unaffected by any opinions of President Trump may have about SGT Bergdahl.”
I think the response of the defense to this should be that justice should not be decided by the unique lack of ambitions of a particular judge. The judge ruled the unlawful command influence was there, the case should have been dismissed.
However Judge Nance in his ruling did expressly make clear he would grant a remedy to SGT Bergdahl for the the President’s Unlawful Command Influence. The judge stated “I will consider the President’s comments as mitigation evidence as I arrive at an appropriate sentence in this case.”
The judge then shocked many when he announced in sentencing that Bergdahl would receive no jail time. The sentence was limited to dishonorable discharge, a fine, and reduction in rank to private.
Berdahl’s attorneys announced they would appeal the sentence, believing Judge Nance erred in not dismissing the case earlier and that any sentence is tainted by the President’s Unlawful Command Influence. In that regards, the President quickly provided the defense more ammunition tweeting:
Remember what Judge Nance said in his decision. The President “has the power to fire or otherwise take adverse administrative action against any active army officer involved in the trial of this case from sentencing forward.” From sentencing forward includes the review of the case by the convening authority (who can reduce the sentence but not increase it) and by United States Army Court of Criminal Appeals.
The President’s tweet shortly after sentencing aggravated the very same Unlawful Command Influence that led the judge to mitigate the sentence imposed on Bergdahl. Further, the tweet tainted any appeal process with that Unlawful Command Influence. The President’s continuing Unlawful Command Influence creates the real risk that Bergdahl’s conviction could be reversed on appeal and the case against him dismissed.
If that happens the President has only himself, and his lack of self-control, to blame.