Having pleaded guilty last week without the benefit of a pretrial agreement, Sergeant Bergdahl was scheduled to be sentenced by a general court-martial composed of a military judge alone today. But the sentencing is continued until Wednesday as the military judge – Army Colonel Jeffrey Nance – considers a last-minute defense motion to dismiss. The Associated press reports here that:
The judge deciding Army Sgt. Bowe Bergdahl’s punishment said Monday he is concerned that President Donald Trump’s comments about the case could impact the public’s perception of the military justice system.
Sentencing was set to begin Monday for Bergdahl on charges that he endangered comrades by walking off his post in Afghanistan in 2009. But the judge, Army Col. Jeffery R. Nance, instead heard last-minute arguments by defense attorneys that recent comments by Trump are preventing a fair proceeding. Bergdahl faces a maximum sentence of life in prison.
Nance allowed the attorneys to question him about whether he was swayed by Trump’s comments. Nance said he wasn’t aware of the comments beyond what was in the legal motions. Nance said he plans to retire as a colonel in about a year and isn’t motivated by pleasing commanders to win a future promotion.
“I don’t have any doubt whatsoever that I can be fair and impartial in the sentencing in this matter,” Nance said.
The AP report also notes that “sentencing was set to resume Wednesday because a defense attorney wasn’t available Tuesday, the judge said.”
Colonel Nance’s confidence that he can be fair and impartial, the objective evidence supporting that conclusion (including his record and his impending retirement), Bergdahl’s guilty pleas, and the enormous publicity surrounding this case, provide plenty of reasons to reject the defense motion to dismiss that is based on the President’s recent brief reference to his prior comments in the case.
But in case that’s not enough, The Hill published this analysis by Kyndra Rotunda – a professor of Military & International Law at Chapman University and former Army judge advocate – that compares President Trump’s comments about this case to President Obama’s comments about sexual assault cases and observes:
Looking at recent cases puts this one in context. In 2013, a military judge in Hawaii found that President Obama committed unlawful command influence when he commented about sexual assault cases then underway. His remarks were specific and he was the commander-in-chief when he made them. He said, “I have no tolerance for this … I expect consequences” and called for people engaged in sexual assault to be “prosecuted, stripped of positions, courts-martialed, fired and receive a dishonorable discharge.”
The laundry list of penalties he demanded reads like a direct order. It’s specific. It’s detailed. It’s directive. To cure the problem, the judge insulated defendants from receiving the penalties listed out by President Obama.
In this case, the curative instruction would involve removing the death penalty as an option. But, prosecutors have already done that, all on their own. Their failure to seek the death penalty renders President’s Trump’s comments inapplicable. He’s called for execution. But, the death penalty is not even on the table — and hasn’t been from the get-go.
Furthermore, this is not a jury trial. It’s a bench trial, and the decision rests entirely with one judge. It is true that the law protects judges from unlawful command influence too. But, in this case, the judge has already decided that President Trump’s campaign-era remarks don’t amount to unlawful command influence. If he reverses himself, based on Trump’s recent remarks, the case boils down to whether the judge was prejudiced by Trump’s comments.
But, in any event, the proper remedy is not dismissal — it is recusal. If the judge decides he cannot be fair, he could reasonably recuse himself and step aside, instead of letting Bergdahl off scot-free.
Another notable factor is that Bergdahl’s guilty pleas give the Army options other than a court-martial if, somehow, Colonel Nance finds that dismissal is warranted and that ruling isn’t reversed on appeal.
Last year I wrote that The Army has no choice: Bergdahl must face a court-martial. That post was based on the fact that Army regulations guarantee an honorable discharge to a soldier discharged at the end of an enlistment, and the practical reality that Bergdahl’s alleged misconduct was too serious to support an automatic honorable discharge. But I also wrote that the Army could administratively determine that Bergdahl’s capture was an unauthorized absence caused by his own misconduct (see Army Regulation 600-8-4), and therefore his enlistment obligation was tolled during his absence (see 10 U.S.C. § 972), making it possible to administratively separate him for misconduct this many years later and give him something less than an honorable discharge.
Making such a determination back then would have required finding that Bergdahl did commit serious misconduct (likely depriving him of significant veterans’ benefits) without affording him the protections of a trial. Now that Begdahl pleaded guilty, however, such a determination is far less controversial.