Bowe Bergdahl's desertion conviction is voided by the appearance of bias under Trump
Updated July 26, 2023 at 5:14 PM ET
In 2017, a military judge told attorneys in Bowe Bergdahl's court-martial case that he was impervious to pressure from then-President Donald Trump — but he made a crucial omission: one week earlier, the judge had applied for a new job in the Trump administration.
That's the conclusion of U.S. District Judge Reggie Walton, who on Tuesday vacated the former soldier's court-martial conviction and sentence that were overseen by former military judge Jeffrey Nance.
"Yesterday was a very good day for the rule of law, and it was a good day for Sergeant Bergdahl," Bergdahl's attorney, Eugene Fidell, told NPR.
Bergdahl previously admitted to desertion and misbehavior before the enemy, charges related to leaving his post in Afghanistan in 2009 and being captured by the Taliban. In 2017, he received a dishonorable discharge in lieu of a prison sentence — but that punishment is now revoked.
Walton said he didn't find any sign that Nance showed "actual bias" in his handling of the case, but he said the judge "affirmatively misled" Bergdahl's lawyers when he discussed retiring from the bench rather than pursuing other posts. And under the law, Walton said, the appearance of partiality alone is enough to void Nance's rulings.
The federal court ruling gives Bergdahl "a clean slate," Fidell said.
The timing of the judge's actions are crucial
Walton vacated "all orders and rulings issued by the military judge who presided over [Bergdahl's] court-martial as of October 16, 2017, and thereafter."
That date is important for several reasons. On that one day, court records show, Bergdahl pleaded guilty; Trump evoked calls he made as a presidential candidate for Bergdahl to face stiff punishment; and Nance applied to be an immigration judge in Trump's Justice Department.
What did Trump say about Bergdahl?
Before taking office, both Trump and the late Sen. John McCain had been vocal critics of Bergdahl and the way former President Barack Obama's administration handled his rescue and prosecution, prompting Bergdahl's team to file motions alleging unlawful command influence — which, as NPR's Greg Myre explained, "means quite simply the commanders can't influence legal cases or even appear to do so."
Discussing Bergdahl during his campaign, Trump repeatedly noted that deserters used to be shot and called Bergdahl a variety of names.
Here's what then-President Trump said about Bergdahl during a Rose Garden news conference on Oct. 16, 2017:
"Well, I can't comment on on Bowe Bergdahl because he's — as you know, they're — I guess he's doing something today, as we know. And he's also — they're setting up sentencing, so I'm not going to comment on him. But I think people have heard my comments in the past."
The judge was previously asked about possible bias
Trump's remarks prompted Bergdahl's team to renew their claim of unlawful command influence, and Nance convened a voir dire session, placing himself under questions from attorneys in the case.
When prosecutors asked if, in light of the president's latest remarks, anything might prevent the military judge from being fair and impartial during the court-martial proceedings, Nance did not mention his aspiration to work in the executive branch. Instead, he said he had no hope for a promotion, stating, "I'm what's referred to as a terminal Colonel, which means I'm not going anywhere but the retirement pastures."
That was misleading, Walton ruled, because Nance had applied "to become an immigration judge seven days prior to the date when these statements were made."
Nance's application included a writing sample from the Bergdahl case
When he applied to the DOJ, the military judge used as a writing sample his order from the Bergdahl case, Walton wrote.
In the document, Nance "denied the plaintiff's unlawful-command-influence motion which was based upon former President Trump's statements, and ruled against the plaintiff — both actions that a reasonable person might view as serving the president's interests in the case and thus, 'creating the appearance of impropriety.' "
Less than a year later, Attorney General Jeff Sessions appointed Nance as an immigration judge. Bergdahl's legal team didn't realize the timing of the judge's job aspirations until later, after they submitted a Freedom of Information Act request.
In his ruling, Walton did not agree with the Bergdahl legal team's assertion that comments from Trump and McCain (who chaired the Senate Armed Services Committee) amounted to unlawful command influence.
But as in much of U.S. politics, Trump looms large in the civil case: Trump's name appears 72 times in Walton's 63-page ruling.
The dramatic reversal in the case, Walton wrote later in his opinion, shows "why individuals aspiring for public office and those achieving that objective should not express their desired verdict and punishment of individuals merely accused of committing criminal offenses."
He noted that the U.S. criminal justice system requires proving guilt beyond a reasonable doubt, and it relies on the judicial system's credibility and public perception of fairness.
The judge "affirmatively misled us," lawyer says
Nance's actions went beyond simple non-disclosure, Fidell said.
"It's affirmative concealment, because he misled us" into believing his only aspiration was to retire, Fidell said.
In November 2017, Nance issued his punishment for Bergdahl, sentencing him to a dishonorable discharge and ordering him to be reduced to the lowest enlisted pay grade and forfeit $10,000 in pay and allowances.
On Sept. 28, 2018, Sessions appointed Nance as an immigration judge.
In 2019, Bergdahl's push to throw out his military conviction got a key boost, when a military judge in another case was found to have erred when he didn't disclose that he had sought and acquired a job as an immigration judge while hearing a high-profile case involving the DOJ.
Bergdahl's lawyers were "shocked," Fidell said, when they received a hard copy of Nance's employment application dating from when the military judge was overseeing their case.
"This case shows that things can happen that really do threaten public confidence in the administration of justice," Fidell said. "And our bulwark turns out to be the federal courts."
The next legal steps aren't yet clear
Bergdahl was a sergeant before his court-martial conviction. It's not yet clear what the Army and Justice Department will do in the wake of Walton's ruling, Fidell said, noting that they could appeal.
"They've got to do something," he added. "They've got to figure out whether they want to spend more time and effort and resources on a case where they can't get a sentence any more stringent than the one he already got, or resolve the matter somehow. And that's their call."
The Justice Department declined to comment on the case Wednesday.
Bergdahl's case has been playing out for years
Bergdahl, a native of Idaho, was freed in 2014 in a widely publicized prisoner exchange. Here's a brief recap of events around then:
- June 2009: Bergdahl is captured by the Taliban after leaving his base in southeastern Afghanistan. Almost immediately, questions arise about the circumstances of his capture.
- May 2014: Bergdahl is freed in exchange for five Taliban detainees who were being held at the military prison in Guantánamo Bay, Cuba.
- March 2015: The U.S. Army charges Bergdahl under two sections of the Uniform Code of Military Justice: Article 85 (Desertion) and Article 99 (Misbehavior before the enemy).
When then-candidate Trump discussed Bergdahl, he called him "a very bad person who killed six people" — an apparent reference to the contested narrative that soldiers died looking for the soldier.
In 2014, then-Secretary of Defense Chuck Hagel spoke about that assertion in testimony before Congress, stating, "I have seen no evidence that directly links any American combat death to the rescue or finding or search of Sergeant Bergdahl. And I have asked the question. We have all asked the question. I have seen no evidence, no facts presented to me when I asked that question."
But at least two people were apparently wounded in the effort to find Bergdahl. As Stars and Stripes reported, "[Nance] ruled that a Navy SEAL and an Army National Guard sergeant wouldn't have wound up in separate firefights that left them wounded if they hadn't been searching for Bergdahl."
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