In an important decision clarifying the extent to which the law of unlawful command influence applies to senior civilians, a divided CAAF affirmed the Army Court of Criminal Appeals in United States v. Bergdahl, finding that statements made by the late Senator John McCain and President Trump did not constitute apparent unlawful command influence.
In 2009, SGT Robert “Bowe” Bergdahl walked off his remote observation post in Southeastern Afghanistan. He was quickly scooped up by members of the Haqqani Network, a group affiliated with the Taliban. The Haqqani Network held Bergdahl for almost five years. In 2014, the government exchanged Bergdahl for five senior Taliban members held in Guantanamo Bay. At the time of Bergdahl’s return, this was about all that was widely known about his case. But everyone had an opinion.
Many were outraged. Bergdahl had walked away from his unit and his duties, and turned himself into a strategic liability. Enormous resources were expended in the ensuing search and some claimed that Bergdahl’s misconduct cost lives. The lopsided bargain for his return—five senior commanders for an E-5—rankled some. Among those most critical of Bergdahl’s conduct and the exchange that brought him home were the late Senator and SASC Chairman John McCain and then-presidential candidate Donald Trump. Both made statements about Bergdahl’s case that would prove troublesome for the government.
Senator McCain’s statements
Senator McCain was critical of the exchange that brought Bergdahl home. Shortly after Bergdahl’s release, McCain stated, “I would not have made this deal. I would have done everything in my power to repatriate him . . . [b]ut I would not have put the lives of American servicemen at risk in the future.” And when almost a year passed and Bergdahl hadn’t been charged with anything, McCain was keenly interested in whether Bergdahl would face prosecution. On March 23, 2015, the SASC general counsel asked the Army when it would announce charges, adding, “Trying to manage Chairman’s desire to make a statement but need info.” Two days later, the Army charged Bergdahl with desertion and misconduct before the enemy. The Army then notified the SASC.
Senator McCain was also interested in holding hearings. The Army “strongly oppose[d] any Congressional . . . hearing focused on matters related to SGT Bergdahl,” concerned that it would “create issues . . . including giving the appearance of the denial of the fair administration of justice for SGT Bergdahl.” After the Article 32 investigating officer recommended that Bergdahl face neither a punitive discharge nor confinement, Senator McCain said, “If it comes out that [Bergdahl] has no punishment, we’re going to have a hearing in the Senate Armed Services Committee,” and opined that Bergdahl was “clearly a deserter.”
President Trump’s statements
Senator McCain wasn’t the only national political figure to weigh in on Bergdahl’s case. As a candidate for president, Donald Trump made Bergdahl an object of scorn at rallies. Bergdahl’s brief to CAAF highlights the most abusive: “traitor Bergdahl” was a “dirty rotten traitor,” a “no-good traitor,” a “dirty, no-good traitor,” and a “horrible traitor;” a “son of a bitch” and “a piece of garbage;” who “went to the other side” and “negotiated with terrorists.” He pantomimed Bergdahl’s execution, pretending to hold up a rifle. Then-candidate Trump also asserted that Soldiers died searching for Bergdahl.
On the day of President Trump’s inauguration, Bergdahl moved to dismiss the case for UCI. The military judge denied the motion, reasoning that because President Trump made the statements as a candidate rather than President, Article 37(a) did not apply to him. Six months later, Bergdahl pleaded guilty without a PTA to misbehavior before the enemy and to a one-day desertion. The government failed to prove a longer period of desertion in a bench trial.
But President Trump wouldn’t make it that easy for the military judge. That same day, a reporter asked the President whether he believed his comments affected Bergdahl’s ability to receive a fair trial. President Trump seemed to demure at first, but punctuated his “no comment” by referring to his earlier statements, saying, “I think people have heard my comments in the past.” Bergdahl, of course, renewed his motion, which was denied. The military judge noted his own pending mandatory retirement and his lack of “hope or . . . ambition” for promotion as reasons for confidence in his objectivity, despite statements from the President. In spite of finding that the government had carried its burden under the Biagase burden shift applicable to UCI cases, the military judge said he would consider the President’s comments as mitigation evidence.
In November 2017, the military judge sentenced Bergdahl to reduction to E-1, forfeitures, and a dishonorable discharge—a sentence similar to the one suggested by defense counsel and one the President called “a complete and total disgrace to our Country and to our Military.” More comments disparaging Bergdahl and his sentence followed during the clemency and appellate processes.
Post-trial and ACCA
Bergdahl, who was eligible for clemency up to and including disapproval of the findings, asked the SJA and convening authority to disqualify themselves. Instead, the convening authority approved the sentence.
On appeal to the Army Court of Criminal Appeals, Bergdahl argued that the President’s and Senator McCain’s statements amounted to apparent UCI.
Three years ago in United States v. Boyce, CAAF announced a two-pronged test for apparent UCI. To prevail, the appellant must show facts which, if true, would constitute UCI. Second, he must show that the UCI placed an intolerable strain on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.
As to Senator McCain’s threat to hold a hearing if Bergdahl did not receive confinement, ACCA found that “[e]ven if one concluded that [it] was an attempt to coerce or influence the action of a convening authority, we find it did not rise to the level of an ‘intolerable strain’ on the military justice system.” President Trump’s statements, however, did shift the burden to the government. But while the government was unable to bear its heavy burden to disprove facts constituting UCI, ACCA was convinced that nothing the President said caused an intolerable strain on public perception. See generally United States v. Bergdahl, 79 M.J. 512 (A. Ct. Crim. App. 2019).
Bergdahl at CAAF
CAAF granted review, asking whether the charges and specifications should be dismissed with prejudice or other meaningful relief granted because of apparent unlawful command influence.
First, CAAF had to decide whether the two senior officeholders in question were even capable, as a legal matter, of causing unlawful command influence. The appellant suggested separate theories for each: Article 37 applies directly to those subject to the UCMJ. As a retired Navy officer, this included Senator McCain. But—perhaps ironically—a presidentially promulgated rule applies Article 37’s prohibition on UCI to all convening authorities, which would include the President. Rule for Courts-Martial 104 (a) (1) prohibits convening authorities from censuring, reprimanding, or admonishing a court-martial, military judge, counsel, or member with respect to the findings or sentence of a court-martial.
CAAF found that both Senator McCain and President Trump were capable, as a matter of law, of unlawfully influencing courts-martial: Senator McCain through Article 37; President Trump through R.C.M. 104.
Having decided that both Senator McCain and President Trump could unlawfully influence a court-martial, CAAF further found that Bergdahl had met his initial burden of show some evidence of UCI—in connection with both Senator McCain’s and President Trump’s statements. Nevertheless, CAAF decided that, under the Boyce standard, the comments in question would not create, in the mind of an informed and disinterested observer, an intolerable strain on the military justice system.
The court’s analysis is fact-intensive. Writing for the court, Judge Ohlson noted that the fact that the Army referred the case to a general court-martial in the face of the preliminary hearing officer’s recommendation to the contrary made the decision a close one. Had the Army referred the case to a special court-martial not authorized to award a punitive discharge as recommended, Bergdahl could not have been awarded a dishonorable discharge. Nevertheless, CAAF noted that the PHO (I pause here to note that, while the briefs and the opinion all refer to the PHO, the date of the offenses would seem to have required an old-school IO) was unaware of any evidence that service members had been wounded or killed searching for Bergdahl. The PHO specifically stated that the absence of this evidence was the “strongest factor” in his decision to recommend the relatively low forum. CAAF found that the convening authority, on the other hand, would have known that several service members had in fact been wounded searching for Bergdahl. In this sense, the convening authority’s disposition of the charges was consistent with the PHO’s recommendation.
Other seemingly lesser factors weighed in the balance as well. The convening authority swore in an affidavit that the comments in question did not affect his decision-making in this case. Bergdahl pleaded guilty voluntarily to offenses that, under the code at least, could have resulted in the death penalty. Judge Ohlson found that the convening authority would have determined that—given the seriousness of the offenses and their effect on the Army’s efforts in Afghanistan—unit cohesion and morale would have required a more serious disposition. In short, CAAF found that however troublesome the offending comments were, an informed member of the public would find that Bergdahl would have received the same outcome had they never been made.
Concurrence by Judge Maggs
Judge Maggs concurred in the court’s result, but disagreed much of its analysis. He agreed that Article 37(a)’s prohibition on any “person subject to [the UCMJ]” attempting to “coerce . . . the action” of a convening authority applied to Senator McCain. But he found that Senator McCain’s threat (yes, this word begs the question) to hold a hearing did not amount to coercion under Article 37. Senators are supposed to hold hearings, and Judge Maggs agreed with the military judge that Senator McCain did not attempt to influence the court-martial by unauthorized means.
As for President Trump, Judge Maggs disagreed that RCM 104 applied to the President, even though the president is a convening authority. Judge Maggs’s interpretation of “convening authority” as the term is used in RCM 104(a)(1) comprehends only the convening authority performing that function in the case at issue—not all convening authorities at all times.
Dissents by Judge Sparks and Chief Judge Stucky
In dissent, Judge Sparks agreed that both Senator McCain and President Trump were capable of causing UCI, and that the appellant had carried his initial burden. He disagreed that the government had carried its resulting burden to show that an objective, disinterested, and informed observer would not harbor a significant doubt about the fairness of the proceeding. Interestingly, Judge Sparks further found that the egregious circumstances of this case deprived Bergdahl of due process under the Fifth Amendment. Reminding the reader that the uniquely military concept of unlawful command influence has constitutional roots, Judge Sparks opined that:
"Never in the history of the modern military justice system has there been a case in which the highest level figures, including the Commander in Chief, have sought to publicly demean and defame a specific military accused. The vilification of Sergeant Bergdahl before, during, and after his court-martial was unprecedented, hostile, and pernicious in the extreme. It both placed an intolerable strain on the military justice system and denied the accused his due process right to a fair trial. I am compelled to conclude that the only appropriate remedy in this case is dismissal of the findings and sentence with prejudice."
Chief Judge Stucky joined Judge Sparks’ dissent, but found it necessary to write separately. Opening with a note of consternation, Chief Judge Stucky announced that the case “has caused me as much concern as any in the more than thirteen years I have sat on this Court.” Noting that he had previously been an apparent-UCI skeptic, he appeared to accede to the court’s current doctrine. And “if there ever were a case in which it should be applicable it is this one.” Chief Judge Stucky found that conditioning Senate hearings on Bergdahl’s receiving a sentence to no punishment was “undoubtedly meant to cause the sentencing authority and the convening authority to carefully consider the adverse personal and institutional consequences of adjudging or approving such a sentence.” As for President Trump, Chief Judge Stucky was sharply critical:
"President Trump’s vicious and demeaning remarks about the treatment he believed Appellant should receive were relayed to members of the public, some of whom would be called upon to decide Appellant’s fate. Given the reckless nature of the comments made and ratified by the President and the glare of publicity that surrounds the utterances of any president, and particularly this one, the government has a unique burden to bear in rebutting the appearance of unlawful influence. It has not done so. That being the case, I agree with Judge Sparks: the comments of Senator McCain and the President have placed an intolerable strain on the military justice system, and the only appropriate remedy is dismissal of the charges and specifications with prejudice.
One final thing needs to be said. This case is unique in modern American military jurisprudence. Let us hope that we shall not see its like again."
I, for one, have no doubt that no one wants to see a case like United States v. Bergdahl ever again.
I note that the Navy-Marine Corps Appellate Defense Division, which I direct, filed an amicus brief in this case.