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Bowe Bergdahl Trial Delayed Until 2017, But Donald Trump Could Wreck The Entire Case

Bowe Bergdahl

The court martial of Bowe Bergdahl on desertion and related charges has been delayed until after the Presidential election, raising the possibility that the trial could become further complicated if Donald Trump manages to win the election:

The start of the trial of Army Sgt. Bowe Bergdahl, who faces desertion and misbehavior charges for abandoning his post in Afghanistan, has been postponed until next year to give his defense team time to sift though thousands of pages of secret documents.

The new date, Feb. 6, which may still change as a result of scheduling conflicts, was set at a brief hearing Tuesday at Fort Bragg in North Carolina, the Army said in a statement. The initial trial date had been set for Aug. 8.

The case has grown more complex as prosecutors and defense attorneys have grappled with the compilation of 1.5 million pages of documents in connection with the investigation into the capture and detention of Bergdahl.

At the hearing, defense attorneys and prosecutors met with the judge, Col. Jeffery Nance, to discuss potential trial dates and legal motions under consideration. The hearing lasted 35 minutes.

The delay means, of course, that Bergdahl will not face trial on the charges against him until after the next President has taken office. If that President his Donald Trump, there will be a voluminous record of the President having spoken out regarding his beliefs about the case against Bergdahl and what should happen to him. As early as August of last year, just two months after he entered the race, Trump was calling Bergdahl a “dirty, rotten traitor” and in October Trump referred to him as a “No good traitor” who would have been executed thirty years ago. While Trump hasn’t brought the subject of Bergdahl up on the campaign trial recently, he repeated the treason charges, and the conclusion that Bergdahl was guilty of the charges against him, several times during the race for the Republican nomination. Citing Trump’s history of comments about the case, Bergdahl’s attorneys contacted Trump’s campaign in March seeking to depose Trump regarding his comments. I could not find any definitive word via a Google search, but it does not appear that any such deposition has taken place or that Trump has responded publicly or privately in any way regarding the deposition request, although one suspects he will resist any efforts to be put under oath regarding this matter. By contrast, the only comments that Hillary Clinton appears to have made regarding the Bergdahl matter appear to be a passage in her book Hard Choices that appears to suggest that she was doubtful about negotiating directly with the Taliban as well as subsequent comments during her book tour where she said that the fact that Bergdahl might have deserted his until does not mean that the United States should not have tried to bring him home in the manner it did.

The fact that this case will not go to trial until the next President is in office means, of course, that there’s at least a possibility that Donald Trump could be President when the military is seeking to prosecute Bergdahl. If that’s the case, then Trump’s previous comments about Bergdahl’s guilt and an opinion about an appropriate sentence could become the basis for a defense that could get the case dismissed entirely. The defense would fall under a concept called “undue command influence” that is defined in Article 37 of the Uniform Code of Military Justice:

(a) 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 exercises of its or his functions in the conduct of the proceedings. 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. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

The basic concept here is that superior officers should refrain from commenting on the merits or lack thereof of criminal cases pending under the UCMJ and that, if they do, the danger that their comments may be unduly influencing the opinions of the Judge and Jury in a relevant Court Martial could result in the charges in those cases being dismissed due to the prejudicial impact on a Defendant’s right to a fair trial. In the last several years, this defense has been successfully used to result in the dismissal of charges in outstanding criminal cases under the UCMJ. In June 2014, for example, attorneys for a Marine on trial for sexual assault successfully argued that comments made by the Commandant of the Marine Corps regarding sexual assault cases in his branch of the military were sufficiently specific to constitute the kind of undue influence that ought to result in dismissal of the underlying charges. As James Joyner noted at the time, while the Commandant’s comments were not regarding the specific facts of the case against the Marine, they were sufficiently specific to constitute an admonishment to members of the jury that they should start with the assumption that claims of sexual assault are true rather than a presumption of innocence as required by law. Just a year earlier in a separate case, charges against two Navy Defendants were dismissed because of similarly generalized comments by President Obama, the Secretary of Defense, the Chief of Naval Operations, and several others below them in the chain in command earlier in 2013.

While Trump’s comments were made at a time when he was a civilian candidate for President rather than someone within the chain of command, that doesn’t appear to mean that they could not be used as the basis for a claim of undue command influence if he is elected President. For one thing, unlike the comments that led to the dismissal of the sexual assault cases noted above, these were very specific comments about a specific case. If generalized comments about sexual assault were sufficient to constitute undue influence in the sexual assault cases, it’s at least arguable that the specific comments by a newly elected and inaugurated President regarding what he thinks should happen to Bergdahl specifically could arguably be said to constitute an undue influence on the jury hearing his case. At the very least, the fact that Bergdahl’s attorneys have already sought to depose Trump would seem to suggest that they are already aware of the potential presented for raising the defense and that we can at least expect the issue to be raised at trial as well as at any appeal in Bergdahl is convicted. In other words, Donald Trump spouting his opinion on this subject could result in Bergdahl getting off scot-free.

 

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    Trump is a private citizen. He’s not commander-in-chief. If, in some bizarro scenario, Trump becomes commander-in-chief, it wouldn’t be retroactive. So, no, it wouldn’t be UCI.

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  2. DrDaveT says:

    If that President is Donald Trump, there will be a voluminous record of the President having spoken out regarding his beliefs about the case against Bergdahl

    If that President is Donald Trump, we will have no shortage of vastly more pressing national emergencies than the fate of Bowe Bergdahl.

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  3. It does seem like a long shot of a legal argument, but of course lawyers are not adverse to making long shot arguments.

    Of course, if Trump is somehow elected and repeats comments of this type after his Inauguration, then it would be an entirely different ball game. For example, if a reporter asks him after January 20th if he still stands by the comments he made about Bergdahl during the campaign and he says that he does.

    At the very least, Bergdahl’s attorneys at least seem prepared to raise the issue in some way if Trump is elected President.

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  4. KM says:

    @Doug:

    Of course, if Trump is somehow elected and repeats comments of this type after his Inauguration, then it would be an entirely different ball game. For example, if a reporter asks him after January 20th if he still stands by the comments he made about Bergdahl during the campaign and he says that he does.

    Question from a non-lawyer: would a simple “Yes, I stand by what I said” really count? After all, Trump flip-flops on a dime and has documented diarrhea of the mouth and keyboard. He may honestly not remember what he said and give a “yeah, sure” to a journalist to make them go away/ change topic. How reliable would that be considered?

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  5. C. Clavin says:

    @DrDaveT:
    This.

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  6. @KM:

    President Obama’s comments at a press conference were deemed sufficient to constitute UCI in one of the cases I noted above.

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  7. Tyrell says:

    I remember the flap years ago regarding comments that President Richard M. Nixon made concerning Charles Manson.
    I also remember a lot of people saying things like “who gives a ________ about Manson ?!

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  8. gVOR08 says:

    Certainly fails to give me a warm fuzzy over Trump’s likely discretion after he receives his upcoming classified intelligence briefings from the CIA.

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  9. Neil Hudelson says:

    @Tyrell:

    Don’t ever stop you doing you, man.

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  10. gVOR08 says:

    @Tyrell: Manson wasn’t tried in a court nominally under Nixon’s command.

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  11. Also, there is no equivalent in civilian criminal law to Article 37 of the UCMJ.

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  12. Jen says:

    @gVOR08: Given Trump’s proven lack of filter, this actually does worry me, a lot. He seems like the type who remembers random bits of information and throws them out indiscriminately, which could be very dangerous once he’s added to security briefings. What a d@mn nightmare of a candidate he is.

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  13. could result in Bergdahl getting off scot-free.

    Except for that whole being tortured by the Taliban for five years thing.

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  14. gVOR08 says:

    @Stormy Dragon: Bless you for that.

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  15. Paul L. says:

    @KM:

    He may honestly not remember what he said and give a “yeah, sure” to a journalist to make them go away/ change topic. How reliable would that be considered?

    .

    Same goes for Obama calling Bergdahl a hero who “served the United States with honor and distinction”.

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  16. MarkedMan says:

    @James Joyner: James, I concede that you understand the situation better than me, so I’m not arguing here. But what this means it that Obama making a general statement about needing to hold violators to account invalidates a trial, but Trump’s statements wouldn’t (were he to become CIC) despite those statements referring to a very specific case and prescribing a very specific outcome.

    It just seems to make a mockery of the whole process.

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  17. Tyrell says:

    @gVOR08: That is true, but Manson’s defense team moved for a dismissal based on their belief that it could influence some possible jury members. The judge would have nothing to do with it and dismissed their motion; but expressed concern with Nixon’s statement. It would not have made any difference anyway. Even some reindeer herder way out on the furthest edges of Siberia knew Manson was guilty.

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  18. Mu says:

    My guess is still that Obama will sneak him into the pile of last minute pardons, independent of the outcome of the election. Probably “in the interest of national security to not disclose secret details”.

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  19. Franklin says:

    @Jen: 100% agreed.

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  20. Gustopher says:

    @Mu: there is no way Bergdahl could effectively be snuck into a pile of pardons.

    I think Obama might pardon him, but there is no way that won’t be noticed and become the outrage du jour, and might even supplant Benghazi as a rallying cry for the far right, for at least a little,while.

    I don’t think Bergdahl can be given a fair trial — even a fair military trial — because his case has become too politicized, and I would support his pardon on those grounds.

    We take care of our own, or at least we should. We did Bergdahl a disservice when we deployed him to Afghanistan when he clearly wasn’t capable of the mission. We did Bergdahl’s fellow soldiers a disservice when we deployed him to Afghanistan when he clearly wasn’t capable of the mission. He screwed up spectacularly, with terrible consequences for himself and others. I don’t know that we owe him more than we owe those who died looking for him, but I would rather err on the side of mercy on what was a colossal disaster from start to finish. Maybe he deserves to be punished, I don’t know, but it won’t change anything that happened.

    If Richard Nixon’s pardon made any sense in any universe, a pardon for Bergdahl would be entirely justified. End it and move on — he doesn’t pose a danger to society at large going free, punishment would just be revenge.

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  21. CSK says:

    @Jen:

    A thousand times yes. Trump appears to lack the patience and the intellect to absorb, assimilate, and analyze complex material. As you say, he recalls bits and pieces of things, molds them to fit any preconceived notions he has, and then tosses them out as fact or what passes, in his world, for policy.

    I have read a few comments by Democrats saying they would prefer him over any other Republican candidate because he’s malleable, ill-informed, easily manipulated, and has expressed liberal ideas before, and therefore is easily led. I disagree, at least that he’d allow himself to be led in a direction Democrats might find acceptable.

    Ignorance and impatience combined with arrogance is a really lethal combination.

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  22. Margaret L says:

    With so many people against Trump ( I only know 1 person who supports him…) and people everywhere rolling their eyes about him, I can only think it is the fracturing of the Republican Party that has brought his nomination about. In fact, watching Noam Chomsky, author of Who Rules the World, speak about our current political situation, he said today’s so-called “liberal” Democrats most resemble yesterday’s mainstream moderate Republicans… that’s how far right our entire political system has moved!

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  23. Jack says:

    @Mu:

    My guess is still that Obama will sneak him into the pile of last minute pardons, independent of the outcome of the election. Probably “in the interest of national security to not disclose secret details”.

    Obama cannot pardon someone that has yet to be convicted. A president may only pardon a federal conviction. “…the President’s pardon power extends to convictions adjudicated in the Superior Court of the District of Columbia and military court-martial proceedings.”

    Now that the case has been postponed, it guarantees that Obama cannot pardon him.

    https://www.justice.gov/pardon/pardon-information-and-instructions

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  24. Margaret L says:

    @Gustopher I 100% agree… but it seems there’s “someone” up there who doesn’t… must be someone very power-full.

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  25. JKB says:

    @Doug Mataconis: Also, there is no equivalent in civilian criminal law to Article 37 of the UCMJ.

    That’s because the private citizen is not suppose to fear retribution by the hired help in Washington for doing their civic duty from time immemorial, i.e., serving on a jury.

    Well, at least until recent years.

    Trump could signal a change from that by asserting it is improper for the President to comment on on-going investigations and prosecutions. As we see it is legally improper for such when it concerns military members.

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  26. JKB says:

    @Gustopher:

    He cannot be pardoned unless he is convicted of a crime, either by evidence or confession.

    And it would definitely be an act against good military order to not prosecute someone when there is evidence to support that they are guilty of desertion.

    In fact, this decision means that the one person who might have incentive to pardon him, Obama, will not be able to issue a pardon.

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  27. randy sturdivant says:

    He caused several deaths of good men looking for him. He does not deserve to wear the uniform. Instead he should be in prison blues. And demoted to private. He is a piece of trash that tha brought dishonor to himself and his unit

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  28. Roger says:

    @Jack:

    Obama cannot pardon someone that has yet to be convicted. A president may only pardon a federal conviction.

    The internet may say that. But when the Supreme Court spoke on the issue, it said that the pardon power “may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Ex Parte Garland, 71 U.S. 333, 380 (1867). This was the authority used to justify Ford’s pardon of Nixon which was, of course, granted prior to any conviction, or even before charges were filed. Murphy v. Ford, 390 F. Supp 1372 (W.D. Mich. 1975).

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  29. Mu says:

    @Jack: Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from July (January) 20, 1969 through August 9, 1974.

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  30. JKB says:

    @Roger:

    After Ford left the White House in 1977, he privately justified his pardon of Nixon by carrying in his wallet a portion of the text of Burdick v. United States, a 1915 U.S. Supreme Court decision which stated that a pardon indicated a presumption of guilt, and that acceptance of a pardon was tantamount to a confession of that guilt. Wikipedia

    An innocent person would not accept a pardon.

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  31. Matt says:

    @JKB: It doesn’t matter as your type has already convicted him in your mind. So really your opinion is irrelevant.

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  32. Dazedandconfused says:

    @James Joyner:

    …it wouldn’t be retroactive.

    I’m willing to bet the judge will be free to make that call, but it would take a fair bit of legal research to be absolutely sure. ‘Tis risky assertion you made, at best. The larger point is there may be a price to the current level of oral incontinence from future POTUSes is worth considering.

    We appear to be on the brink of making a prophet of Mike Judge…

    http://www.imdb.com/title/tt0387808/

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  33. mike shupp says:

    @Jack:

    I have to disagree. Remember Gerald Ford’s pardoning of Richard Nixon?

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  34. David J Gill says:

    @Margaret L:
    Yes, the Trump nomination comes out of the fracturing of the Republican Party but more specifically it is the descent of that party into doctrinaire conservatism and an absolutist belief that compromise and negotiation is a political surrender that has brought us Trump. This kind of stuff brings out the crazies and when that portion of the electorate (a quarter to a third) that is prone to absurd beliefs is riled up and motivated like never before the result is not going to be good. There wasn’t one GOP candidate for the nomination that was not a total nut-bag.

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