I was able to listen to the oral argument recording in the Bergdahl case that was argued this morning. I offer some brief reactions.
The audio quality was quite poor. At one point Government counsel believed she was being cut off by a judge, but it was actually the echo of her own voice. The teleconference was well managed by the Chief Judge, who stuck to strict time limits (much like Chief Justice Roberts has done in recent SCOTUS phone arguments).
The argument by Eugene Fidell was quite powerful, especially the introduction. Fidell received very few hardball questions, and not a single question about Trump’s comments (I don’t believe Trump was even mentioned during this portion). There seemed to be little skepticism about a lack of prejudice, except from Judge Ryan. Judge Maggs may vote against Bergdahl, but it seems likely that this would only be due to his interpretation of the applicability of the UCI statute and regulation to the President. It seems that there is a consensus that at least Trump’s actions constituted apparent UCI (the position on McCain seems more divided).
The government counsel, CPT Allison Rowley, also gave a very good oral argument; she had an answer for everything and clearly knew the case well. However, it appears that she repeatedly (perhaps intentionally) blurred the line between apparent and actual UCI. She kept referencing the assessment of “effects,” “chilling” of actors, and communication of the comments to the relevant decisionmakers. At one point Judge Ryan explicitly called this out as a confusion of actual and apparent UCI. Chief Judge Stucky repeatedly re-focused counsel on the appearance of the conduct and its effect on the legitimacy of the system. Counsel may be forgiven a bit for this confusion, as a footnote in a prior apparent UCI case appears to invite some inquiry into prejudice/effect (Boyce n.5).
My prediction: 4-1 for Bergdahl with Judge Maggs dissenting on the issue of the regulation’s applicability. Perhaps Judge Maggs will concur, and find that the apparent UCI law covering the President comes from the Due Process Clause (Boyce n.8).