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Army Court of Criminal Appeals Rejects Defense Arguments that President Trump’s Comments Unlawfully Influenced Proceedings in Bowe Bergdahl Case

Discharge Review

Then-Private First Class Bowe Bergdahl was assigned to a combat outpost in Afghanistan in 2009 when he left the Observation Post in order to walk to a Forward Operating Post and lodge a complaint about the treatment of his platoon at the OP. Bergdahl was quickly captured by the Taliban and held captive until May of 2014 when he was returned in exchange for the release of five Taliban detainees then being held at the U.S. detention facility in Guantanamo Bay, Cuba. During those five years, the U.S. military conducting numerous operations to locate and retrieve Bergdahl, some that led to serious injuries for service members involved.

At the time of the release, Senator John McCain, then the Chairman of the Senate Armed Services Committee, made comments disagreeing with the exchange that led to Bergdahl’s return. Additionally, over the course of his campaign for President, Donald Trump made several inflammatory statements regarding the exchange, including repeatedly calling Bergdahl a traitor and stating that at least five soldiers had been killed in operations to locate and rescue Bergdahl.

At trial, Bergdahl raised the issue of Unlawful Command Influence (UCI) over the comments by Sen. McCain and President Trump. The Military Judge found that these comments were not UCI primarily because Mr. Trump was a private citizen without a role in the military justice system at the time he made them, and the trial proceeded. On 16 October 2017, Bergdahl plead guilty to desertion and to misbehavior before the enemy. That afternoon, President Trump stated that because the case was currently being tried, that he could not comment on it, but that he knew that people had “heard his comments in the past.” The defense again raised the issue of UCI, arguing that President Trump had now essentially endorsed his prior comments, but now as President. The Military Judge found that the defense had shown evidence of UCI in these new comments, but that the Government had shown beyond a reasonable doubt that the comments would not impact public perception of the fairness of Bergdahl’s trial.

In sentencing, Bergdahl requested he be awarded a dishonorable discharge. The Military Judge sentenced him to be dishonorably discharged, to be reduced to E-1, and to forfeit $1000 a month for 10 months. Immediately following the public release of the sentence, President Trump tweeted that the sentencing decision was a “total disgrace”. The defense again raised the issue of UCI for post-trial processing, asking that a new Convening Authority and Staff Judge Advocate be assigned to handle the post-trial matters. The Convening Authority declined to recuse himself and approved the findings and sentence in the case.

This summer, the Army Court of Criminal Appeals addressed the UCI issue in its appellate decision in United States v. Bergdahl. First, it agreed with the Military Judge that Senator McCain, although a military retiree therefor subject to the UCMJ’s rules against influencing courts-martial, did not attempt to influence or coerce the action of a convening authority in Bergdahl’s case. Secondly, the Court found that Mr. Trump was not subject to the UCMJ rules concerning influence over a court-martial while he was a private citizen, even while running for President.

Turning next to the comments made by President Trump referencing his earlier opinions on the case, the Court determined that the Military Judge was correct in finding that these comments would not cause an outside observer to doubt the fairness of the military justice system. The Court based this holding on the distance in time between the original comments and President Trump’s reference to them, the fact that they were not actually repeated by the President, and the Convening Authority’s, Staff Judge Advocate’s, and Military Judge’s assertions that they would not be influenced by these comments. Finally, the Court examined the impact of President Trump’s tweet regarding the sentence on the post-trial processing of Bergdahl’s court-martial. Finding that the President’s tweet did constitute UCI, the Court held that there was no indication that the tweet had impacted the Convening Authority in taking his action and that therefore, an outside observer would not question the fairness of the post-trial actions.

One of the Judges on the appellate court dissented from the opinion, finding that President Trump’s tweet on 17 October 2017 was UCI and that the Government did not meet its burden to show beyond a reasonable doubt that Bergdahl received post-trial processing free from unlawful influence.

The Army Court of Criminal Appeals therefore affirmed Bergdahl’s findings and sentence. In August, Bergdahl’s defense attorneys petitioned the Court of Appeals for the Armed Forces to hear the case.

If you or your loved one was convicted of an offense at court-martial, you need someone with experience who knows the law. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please contact Bill Cassara at (706) 445-2943 for a free consultation.

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