The saga of Sergeant Bowe Bergdahl has inspired much discussion among lawyers and laypersons alike. This blog has covered the Bergdahl case’s development assiduously. A particularly animated discussion has developed around the question of whether the President’s commentary regarding the case has impermissibly tainted the military justice system’s ability to afford Sergeant Bergdahl a fair trial.

In an effort to reassure the public that the military justice system is made of sterner and more independent stuff than its critics might suppose, the White House recently issued a missive declaring:

The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations.

This blog characterized that press release as being a “predictable statement of the obvious.”

A recent article by University of New Mexico Law Professor Joshua Kastenberg offers a vantage point from which to observe the unfolding controversy. His article in the Southwestern Law Review is entitled Command Responsibility in the Twenty First Century: The United States Basic Framework and Future Military (and Quasi-Military) Operations, 46 Sw. L. Rev 379 (2017). The article describes the character of Presidential command authority, the obligations that come with it, and the means of making a President accountable for it.

The President is constitutionally obligated to “take Care that the Laws be faithfully executed.”  U.S. Const. art. II, Sec. 3, cl. 5. Professor Kastenburg posits that “it must be assumed that this provision covers all laws.” Command Responsibility at 395. That would, presumably, include the duty to see the UCMJ faithfully – read impartially – executed.

The means to enforce a President’s duty of faithful execution are few – indeed, there may be only one. “[E]ven while serving in the capacity as commander in chief, [the President] is not amenable to the UCMJ’s jurisdiction.”  Command Responsibility at 394. Whether a sitting President can be criminally prosecuted at all, even for civil crimes and in the civil courts, “is an unknown, based on several constitutional ramifications.” Command Responsibility at 395, fn. 89. Even civil liability is not a certainty. In a motion to dismiss a civil suit in a State of New York court concerning conduct which allegedly occurred prior to the President assuming office, the President’s lawyers recently asserted:

[T]his Court lacks the authority pursuant to the Supremacy Clause of the Constitution to exercise jurisdiction in this case because a state court cannot control President Trump – who uniquely embodies the Executive Branch – or interfere with his ability to perform his duties.

Memo. Of Law in Support of Motion to Dismiss and Srike Complaint, Zervos v. Trump (N.Y. Sup. Ct. 7 Jul 2017).

All of that aside, a President is subject to impeachment proceedings.  Command Responsibility at 395. Indeed, impeachment proceedings were launched against President Johnson after the Civil War because Congress believed he had abused his authority as commander in chief. Specifically, the President had disregarded Congress’ Command of the Army Act, which forbade him from exercising direct command over military forces. That alleged wrong  was among the impeachment allegations passed by the House of Representatives to the Senate in 1868. That historical example might lead a person to argue that even patently unconstitutional laws constraining the President’s exercise of command authority can form the basis of proper impeachment proceedings. As Professor Kastenberg explains, “the liability of a president under either the Constitution’s impeachment process, or other avenues of accountability is not only a legal question, it also presents a political question.” Command Responsibility at 395.

All in all, Professor Kastenberg’s article led at least this reader to wonder whether, even if it were determined that the President’s commentary regarding the Bergdahl case somehow ran afoul of his obligation to take care to faithfully (and impartially) execute the UCMJ, the remedy is to be found in the halls of Congress, not a courtroom. If a remedy must be fashioned, Congress’ power of impeachment is likely the only tool available.  Whether the alleged misstatements of this President regarding the case of an admitted deserter warrants the use of that draconian tool is a non-justiciable political question.

17 Responses to “Scholarship Saturday: The deserter and his outspoken commander in chief”

  1. Concerned Defender says:

    On this particular case we know BB committed the crimes.  Everyone involved knows it.  The evidence is air tight.  There is no defense on the merits.  And in fact he has now PLED to it.  
    Obama’s admin handled the bulk of where we are today.  Candidate Trump’s statements had zero UCI impact.  POTUS Trump’s statements have had no impact, given that MJ’s have ruled that a POTUS doesn’t commit UCI with such statements.
    So the rest of this UCI discussion strikes me as disingenious.  It is simply the “never Trumpers” and their viseral hatred for Trump and endless pursuit to impeach him for any reason they can muster.  It’s really quite pathetic.  
    Our last Commander in Chief committed real crimes.  You want a list?  Okay.  He/his admin directly interfered with the 2016 election by refusing to indict Hillary in the face of confirmed FELONIES and serious FED CRIMES.  Probably about a dozen infractions among all those bad actors with Obama running the circus.  Paying illegal laundered pallets of money to Iran without Congress consent.  This BB illegal trade.  NSA spying on Americans and lying under oath.  IRS targeting Americans who were political opponents.  Obama lying to the Americans about key terms in passing Obamacare, and about key terms in the Iran nuke deal.  Illegal gun running that got at least one American killed.  Dealing arms to our enemy, Al Queda, in Syria!  I could go on…
    Not to attack Professor Kastenberg but if he wasn’t MORE critical of Obama, then he should be entirely disregarded as an unhinged non-critical thinker in the never-Trumper crowd who couldn’t power a LED bulb with his critical thinking.

  2. Concerned Defender says:

    I wanted to add that I’d be curious if Professor Kastenberg and his mental prowess called for impeachment of Obama, when Obama made far more broad statements on prosecuting and convicting and handing out DDs to every person accused of sex assault, while he was CiC, and that directly led to Army Directive 2013-21 signed by SecArmy McHugh, that mandated administrative (or punitive) measures taken against any service member, even retroactively, with sex assault allegations.   There was tangible harm to many, including at least one of my clients (a case I will note that I won and he was retained and allowed to retire). 

  3. Shawn says:

    Another outstanding post, Isaac, like so many of yours before.  I would like to see all of them collated into a book.  Zack knows someone who can do that, if you don’t.
    So, “remedy is to be found in the Halls of Congress” and “even patently unconstitutional laws constraining the President’s exercise of command authority can form the basis of proper impeachment proceedings.”  Similarly, any one individual judge (probably sitting in Hawaii) can block any presidential executive order on a whim.  Where does that leave the executive branch?  Alas, we live in interesting times.

  4. Retmojag says:

    “Concerned defender”  In US v Mobley, (then) Judge Kastenberg specifically found that the CiC and Secdef committed UCI.  The date of the case is 2013 so do the math and figure out who the president was.  The Air Force Court overturned his decision in an unpublished case. (1)  Read the article and discover that it has nothing to do with UCI, but is an ops law article that never mentions the current president (2) it seems concerned with not giving commanders direction to take control over foreign forces and contractors who violate laws.  Oh – and he did defend the current president in an article in the San Fran Chron involving the strike in Syria, the only prof to do so. 

  5. Vulture says:

    Isaac.  It would not do well to contend with the insight of J. Kastenberg.  Further, placed in the vein of defining command influence as lawful, see here, the devices against UCI have been much maligned.  The Air Force article above even quotes then Major Rosenblatt.  So maybe this whole discussion is a dead letter.
    Yet looking at the article it also leaves the sense of having gone full circle.  It mentions the Hague Conventions and the  Geneva Conventions.  We all know that those do not apply to the American legal system.  No part of American law requires that its prisoners live in similar conditions as those of a prisoner of war of in the hands of lawful combatants.  In fact, Bill Richardson of New Mexico turned against the death penalty when seeing the conditions in his states prisons.  And the Hague and Geneva Conventions certainly did not apply to Bowie Bergdahl when he was getting tortured by the Taliban.
    All this talk that we have about mitigation really being aggravation sits well with saying that the Commander in Chief can’t be held to commit UCI.  It’s the positively Orwellian compounding to the Vaudevillian.  It’s blazingly contradictory terms allying to panty shows in the Supremacy of leadership positions.   If we can’t enjoy the trappings of higher minds such as Joshua Kastenberg, we need not suffer the lower ones.  So I would argue that the lawful influence would be to a DD, a fine, and no confinement.

  6. Joseph Wilkinson says:

    If a remedy must be fashioned, Congress’ power of impeachment is likely the only tool available.  Whether the alleged misstatements of this President regarding the case of an admitted deserter warrants the use of that draconian tool is a non-justiciable political question.
    The Constitution says the President can be impeached for “high crimes and misdemeanors.”  UCI is neither.
    The Andrew Johnson articles of impeachment are here.  They mainly involve violations of the 1867 Tenure of Office Act. As you can see, Section 5 of that act makes it a “high misdemeanor” to accept any office in violation of that act–so that part of Johnson’s alleged offenses were “conspiracies” to violate this act, which is at least partly criminal in nature.   The UCI statute (Article 37 UCMJ) isn’t criminal.

  7. Joseph Wilkinson says:

    P.S. – I see that Bergdahl is unhappy that Army leaders aren’t violating Article 13 by threatening him overtly.  Says he:
    “At least the Taliban were honest enough to say, ‘I’m the guy who’s gonna cut your throat’….Here, it could be the guy I pass in the corridor who’s going to sign the paper that sends me away for life…We may as well go back to kangaroo courts and lynch mobs.”
    …but I didn’t register with the London Sunday Times to read the full interview.

  8. Concerned Defender says:

    @Retmojag, please re-study US v. Mosbey.
    Your interpretation is unique and is not the ruling of the lower court or the reason it was overturned.  The MJ in the trial case ironically failed to find UCI (with the CiC or SecDef) when in my view the UCI was so apparent on sex crime preferrals that it should have been found in many cases.  But for political reasons the services would have been gutted on Military Justice so could not find UCI by and large.  Instead, the MJ found problems with the referral and Convening Authority.   The MJ granted Defense’s motion to dismiss and refused Government a Reconsideration Motion.  In Mosbey, this is the relevant text (very poorly worded I will add):

    After hearing argument, the military judge found that certain statements of the Air Force Chief of Staff and the President – in the context of the current political climate surrounding sexual assault in the military – presented some evidence of UCI. He then found the preferring commander’s affidavit sufficiently demonstrated beyond a reasonable doubt that the preferral of charges was not tainted by UCI.  
    With regard to referral, however, he found Maj Gen Bender’s memorandum did not demonstrate beyond a reasonable doubt that either actual or apparent UCI was absent. 

    From there, the AF Appellate Court reviewed the UCI and denial of the Motion for Reconsideration for abuse of discretion.

    The military judge found UCI only with regard to the referral of charges. The military judge based his ruling in large part on the sparcity of information in the GCMCA’s affidavit and the fact the convening authority did not testify at the hearing. …the military judge was satisfied that the preferring commander’s affidavit overcame the defense counsel’s assertion of UCI,…
    This Court reviews a military judge’s ruling on a motion to dismiss for an abuse of discretion….We review a military judge’s findings of fact as to UCI “‘under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law [we] review de novo.’”  At the appellate level, we evaluate UCI in the context of a completed trial using the following factors: “[T]he defense must (1) show facts which, if true, constitute [UCI]; (2) show that the proceedings were unfair; and (3) show that the [UCI] was the cause of the unfairness.” …“The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” …
    We find the military judge abused his discretion in denying the Government’s motion for reconsideration. …

    It does raise the interesting question about who safeguards appellate Judges from UCI when the CiC says what Obama said… I digress. 
    These days it’s hard to take anyone serious when the terms “Trump” and “Impeachment” are uttered for such nonsense like this  UCI.  The entire opinion just goes in the the recycle bin.  So I just read the blog and went no further.  Having seen some extremely political and absurd rulings handed out by “Judges” in my day, I am thoroughly unimpressed by the title.  If it’s the good “Professor” Kastenberg’s opinion alleged UCI  is an impeachable offense, I’d suggest he lose his tenure as a law professor.  Or at least bone up on the law.  If that’s not his position, then I stand corrected.  Perhaps his writings are worth the effort to read.  But if he’s equating impeachment with statements Candidate Trump made it’s a waste of time.
    To that end, Great posts J. Wilkinson, I’ve had this discussion on other forums about the “high crimes and misdemeanors” requirements to impeach.  It’s become comically absurd the “shotgun” approach to desperately calling for impeachment even before Mr. Trump took office on all things from allegations of stealing the election, to groping allegations, to racist allegations, to being a Nazi sympathizer, and now alleged UCI.  The lunatics are clawing to retake the asylum… and it’s pretty entertaining.  

  9. Concerned Defender says:

    Conversely and separate from the Obama era UCI on sex crimes preferrals and referrals, where at least SOME of those Service Members pled NOT GUILTY, and the facts were often contentious and in dispute and one can argue they faced trial (or admin actions) unfairly for political reasons, in the BB case every knows he did it, the evidence is overwhelming, and he’s facing trial not for any UCI reasons, and quite critically BB has now PLED GUILTY.  So that kinda eliminates the “I shouldn’t be on trial,” argument, gutting any dismissal request. As for getting a fair sentence, what exactly is a fair sentence for facing two allegations, with a life sentence on the table, for this crime, when you dive in on a naked plea?  – KNOWING you can get a life sentence for the aggravation of doing exactly what the law attempts to prevent… creating about as aggravating of a situation as can be created.

  10. Dew_Process says:

    Just as an aside, the terms “command authority” and “command responsibility” are not necessarily co-extensive. That distinction was extensively litigated in the case of Japanese General Yamashita, see, In re Yamashita, 327 U.S. 1, 14-16 (1946). It was also litigated in the Nuremberg case against the German Generals, see, The German General Staff case.   
    Without getting involved in the debate upthread here, Prof. (and retired Army JAG) Geoff Corn, looks at :command responsibility” from another angle in an article entitled, Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct, available HERE.
    In the context of this thread, as Chief Executive and CinC, does (at least in theory) control federal prosecutions.

  11. stewie says:

    An extreme case of presidential UCI could be a high crime and misdemeanor, not in any of the cases we’ve seen so far though.

  12. Joseph Wilkinson says:

    An extreme case of presidential UCI could be a high crime and misdemeanor, not in any of the cases we’ve seen so far though.
    Certainly…if it violated a criminal law, for example if the President bribed a military judge to change his rulings. 
    But Professor Kastenberg’s article seems to want to find an impeachable offense in failing to ensure that all laws are “faithfully executed” (I’m referring to the paragraph that begins “there should be no question…” and ends with “…covers all laws”).
    This interpretation would really turn impeachment into a standard parliamentary vote of “no confidence.”  Because there’s never a time when all the laws are being enforced to everyone’s satisfaction.  (For example, if the illegal immigrant population of the U.S. is 11 million after peaking at 12 million in 2007 — and I’ve seen arguments that these numbers are way too low–that suggests the immigration laws have not been “faithfully executed” for decades.)  That’s not what impeachment is for.

  13. Retmojag says:

    JW, I’ve read the article, and I think you are taking it a bit out of context.  I agree with you that if read in isolation the paragraph would advocate for exactly what you have characterized it to be, but it doesn’t read that way in the context of the whole article.  I take it that it argues that president who refuses to comply with or enforce the laws of war could face impeachment.  This is merely an extension that the president isn’t above the law.  Nothing earth shattering there.  A president that doesn’t control the troops in the field could be an impeachable offense, just like lying under oath (Clinton), or obstructing justice (Nixon), or violating the public trust through self-enrichment with the net effect of undermining the military (Belknap – yes, this was not technically the charge, but it seems to be what Belknap had done)
    As there is nothing in the article that has anything to do with UCI or CI, I have to wonder what the issue is here.
    As for Concerned Defender’s observation/interpretation of the decision, I get that there might be some who would want a military judge to find the former president committed UCI (in Mobley the judge did), and then fashion a remedy dismissing charges.  Here the judge made an assessment that the GCMCA was not immune from the president’s UCI and ordred the charges dismissed.  Yes, there is a difference between dismissing because of UCI, and dismissing because the GCMCA was not immune from UCI based on the government’s failure to provide evidence beyond a reasonable doubt.  But, the judge did find UCI.  What the appellate decision stands for in my opinion is that the appellate judges excused the prosecution’s sloppy work and lowered the bar for the prosecution to overcome the presumption of a tainted convening authority
    As an aside, I am not sure whether a president’s – assuming he could commit UCI – words could rise to a level of an extreme case of an impeachable offense.  That would be a stretch.  I suppose a direct order to the judge to sentence BB to life might rise to this level.  But there are other remedies for this, such as the CAAF and the federal judiciary.  (Note I did not say service court)

  14. Isaac Kennen says:

    Joseph Wilkinson said:

    The Andrew Johnson articles of impeachment are here.  They mainly involve violations of the 1867 Tenure of Office Act.

    Johnson was impeached for violating two acts – the Tenure of Office Act, and the Command of the Army Act. The first 8 articles of impeachment deal with alleged violations, or conspiracies to violate, the Tenure of Office Act. The 9th article alleged a violation of:

    [T]he second section [of the Command of the Army Act], which provides, among other things, that all orders and instructions relating to military operations issued by the President and Secretary of War, shall be issued through the General of the Army, and in case of his inability, through the next in rank[.]

    The Impeachment of Andrew Johnson (1868), U.S. Senate. 
    Joseph Wilkinson also said:

    The Constitution says the President can be impeached for “high crimes and misdemeanors.”  UCI is neither.
    * * *
    [A contrary] interpretation would really turn impeachment into a standard parliamentary vote of “no confidence.”  Because there’s never a time when all the laws are being enforced to everyone’s satisfaction.  (For example, if the illegal immigrant population of the U.S. is 11 million after peaking at 12 million in 2007 — and I’ve seen arguments that these numbers are way too low–that suggests the immigration laws have not been “faithfully executed” for decades.)  That’s not what impeachment is for.

    Johnson’s 10th Article of impeachment alleged that he:

    [O]penly and publicly and before divers assemblages of citizens of the United States, convened in divers parts thereof, to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and sixty-six, and on divers other days and times, as well before as afterwards, make and declare, with a loud voice, certain intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled in hearing[.]

    Whatever “high crimes and misdemeanors” may mean to the laity, it appears that in Congress’ view, mere loud, intemperate, inflammatory, and scandalous harangues containing threats and bitter menaces will do. 
    stewie said:

    An extreme case of presidential UCI could be a high crime and misdemeanor, not in any of the cases we’ve seen so far though.

    What I took away from Professor Kastenberg’s article was, first, the President is not subject to the Code. “[E]ven while serving in the capacity as commander in chief, [the President] is not amenable to the UCMJ’s jurisdiction.”  Command Responsibility at 394. Given that he is not subject to the Code, I doubt there can be such a thing as “presidential UCI.” At least not in the statutory sense.
    The next thing I took from the Kastenberg article was that the President can, by action or inaction, fail to meet the Constitutional obligation to see that the UCMJ is faithfully – meaning fairly – executed. But, the remedy for that sort of failure is a political question which a court cannot properly address.
    But, that doesn’t leave us in a situation where the military judge is helpless to ensure the accused receives a fair trial. It just means that the analytical regime under which relief could be adjudged would need to be something other than statutory UCI or the Constitution’s faithful execution clause. Perhaps the only remaining analytical regime for relief is a substantive due process analysis. Of course, the standards applicable to such an analysis are such that only the most grievous of violations would support dismissal as a remedy. That’s the proper light, I think, for viewing Bergdahl’s motions to dismiss.

  15. Zachary D Spilman says:

    Well said Isaac Kennen.

  16. stewie says:

    I wasn’t speaking in the statutory sense, I was speaking in the sense of extreme acts that result in UCI that could lead to impeachment.  That could include:
    1. Ordering someone tried/convicted improperly (certainly the latter by itself is improper).
    2. Creating extreme bias across an entire group such that it was impossible/harder for any member of that group to get a fair trial (let’s say he decided all Muslims are really secretly infiltrating the US Military and should be considered spies/unfaithful).
    High Crimes and Misdemeanors is fairly loose term legally-speaking, so it’s really about what can be politically countenanced more than legal questions.

  17. Vulture says:

    Isaac.  Reasonable minds might disagree that there is any good way to say what you are saying.  For the military to inspire that its commander is immune to courts while other courts are saying the same thing as to the general citizenry defines a poor prognosis.  Physician heal thyself: Bowie Bergdahl is excepted to pay taxes by being in a hostile fire zone, the President is not.  If the President really wants to make it personnel BB, should file under the equal protection clause for DJ’s tax returns.  That should sit well with the birthers.
    J. Wilkerson.  Even Lindy England has expressed remorse over her actions.  Bowie Bergdahl has not, really in any form that I can detect.  He has further shown near contempt for the legal process.  That is what I am getting out of the story you reference and from asking for a pardon.  But I have done 15-6s before and conducted them to provide the Commander “all” the information, not just what he wanted to hear.  The inquires and 32 determined, not what I said about no confinement, but not a lengthy confinement.  So I’ll adjust to say that two years would not be too much.