National Security & Defense

On Bergdahl, Maybe Trump Could Try Saying ‘No Comment’

Bowe Bergdahl outside a courthouse at Fort Bragg, N.C., in 2015. (Reuters photo: Jonathan Drake)
The president’s reckless commentary on investigations catches up with him.

Ardent Trump fans find their man’s shoot-from-the-hip style to be a refreshing break with politics as we know (knew?) it, confirmation of the real-estate mogul’s authenticity as the voice of the everyman. Those who suggest the president might try being more, well, presidential, quickly find themselves the target of Trumpist venom.

Yet it is a stubborn fact that when the president of the United States says something, it matters. Assuming he thinks about them at all, Donald Trump may intend his more provocative digs and tweets to be mere campaign-style red meat to keep the flock energized. But he is President Trump now. Especially in the legal arena, his mindless and occasionally obnoxious banter is significant. It can undermine the enforcement efforts of the police, prosecutors, military, and border-patrol agents whom he so enthusiastically champions.

Now, it may undermine the court-martial of Bowe Bergdahl.

On a few occasions (see, e.g., here), I have explained why presidential commentary can compromise criminal investigations to the great advantage of the guilty. The president is the head of the executive branch. Federal prosecutors are his subordinates, as are federal investigators. When he spouts that someone should be prosecuted or sent to jail, the courts do not slough off such commentary as mere opinion or political hyperbole — even if, as in Trump’s case, the president is a non-lawyer. If charges are eventually brought against the person subjected to a presidential outburst, that defendant will move to have the case dismissed on due-process grounds. The argument is that the president’s statements were an implicit directive to his underlings to file an indictment regardless of whether there was sufficient evidence, and that this abusive exploitation of the bully pulpit inflamed the public against the defendant. Thus, the argument goes, the proceedings are incurably tainted.

Such motions are usually denied. There are precautions courts can take, short of tossing out the indictment, to ensure that the defendant gets a fair trial. But there is always a risk that the motion will be granted — and even if it is not, the job of the prosecution becomes much harder. The judge is apt to be hostile after having to deal with a complication caused by gratuitous executive-branch misconduct. Throughout the remainder of the proceedings, the court’s motivation is to dispel any suggestion of taint by siding with the defense on every close call.

The problems posed by presidential commentary are considerably worse in military prosecutions.

In the civilian justice system, the independent judiciary — a branch that is the executive’s peer, not subordinate — is a sufficient check on executive excess. Even if there is taint, we can be confident that a defendant got a fair trial — i.e., that any unfair prejudice caused by abusive presidential commentary was adequately cured. Owing no allegiance to the prosecutor, the court — by the careful way the jury is chosen, by the judge’s instructions to the jury, by admonitions to the prosecutor, and by the judge’s rulings — is able to ensure that the defendant’s rights are adequately protected. Moreover, if the trial judge errs, appellate courts, also independent of the executive, are there to correct any infirmities.

The problems posed by presidential commentary are considerably worse in military prosecutions.

By contrast, military justice is a unilateral executive-branch system. Even the appellate courts, including the U.S. Court of Appeals for the Armed Forces, lack structural independence. No matter how scrupulously the military courts conduct the proceedings, there can still be a perception that a conviction was rigged. Furthermore, while the U.S. Supreme Court — the Constitution’s ultimate, independent judicial authority — has the power to review military cases, its jurisdiction is discretionary. It need not review any military cases and only rarely accepts such appeals. 

You might figure this means that a soldier targeted by presidential commentary is sure to be railroaded. In reality, the tendency runs in the opposite direction. The military takes great pride in its first-rate justice system. In word and deed, that system communicates to those who enlist in our armed forces that an American soldier’s rights will be zealously safeguarded. Military courts bend over backwards to refute any notions that their proceedings have been infected by improper influence from the upper ranks.

Presumably, I am not the only current or former prosecutor to have made these observations. The president is surrounded by Grade-A legal help at the Justice Department, the FBI, the White House Counsel’s Office, and the Defense Department (to name just four of the many executive-branch components with very fine lawyers). Yet he can’t seem to help himself. This character flaw may have caught up with him in Bergdahl’s case.

Bergdahl, of course, is the soldier who deserted his unit in Afghanistan. He was captured by (or perhaps handed himself willingly over to) enemy forces and was held for five years. His unexplained disappearance naturally led to efforts by American troops to locate and rescue him, during which some soldiers were wounded — including one who is paralyzed from being shot in the head.

President Obama infamously orchestrated a prisoner exchange in which five top Taliban commanders in U.S. custody were traded for Bergdahl. Underscoring the lengths to which the military justice system goes to demonstrate its integrity, Berghdahl was investigated and ultimately charged with desertion. He thus faces a potential sentence of life imprisonment, notwithstanding shameful White House commentary following the prisoner exchange about his supposed heroism. Susan Rice, Obama’s ever-dependable sheister and at the time his national-security adviser, insulted the nation’s intelligence (yet again) with assertions that Bergdahl had “served the United States with honor and distinction.” In fact, he was a deserter who has now admitted his guilt in a court-martial.

During the 2016 campaign, Trump took to riling up his rallies by referring to Bergdahl as a “dirty, rotten traitor.” As the New York Times reported, “he even mimicked the sound of a rifle shot as he pantomimed a firing squad executing” Bergdahl. Of course, Trump was not the commander in chief then.

He is now, and last week, at a White House press conference, he was asked whether his previous attacks on Bergdahl had unfairly prejudiced the court-martial against the defendant. There is only one proper answer to that question or, indeed, to any question to the president about the pending case: No comment.

Alas, that answer does not seem to be in the Trump repertoire. While the president declined to opine on what effect his comments may have had, he couldn’t just leave it there. Instead, he compulsively added, “But I think people have heard my comments in the past.”

Obviously, there was no need for Trump to remind anyone that people had heard his Bergdahl comments; that’s why the press was asking him about them. Hence, his latest comment can be interpreted only one way: He wanted to make clear that he stands by his prior condemnatory remarks — as if he were making them again.

“So what?” you say. After all, you figure Bergdahl probably is a dirty, rotten traitor; plus, there is no shortage of Americans besides Trump who would see a firing squad as justice in his case. But the thing is, you and I and the rest of the peanut gallery are not the commander in chief. We are not the official to whom the military officers processing Bergdahl’s case ultimately answer. We do not get to weigh in on matters such as military promotions, assignments, and career track. Those officers have no reason to care what we think, but they have a great deal of reason to care what the president thinks. They have a motive to please him — to make sure that what the commander in chief says should be done is done.

So, when Trump pops off — when he suggests that Bergdahl is actually guilty of treason, an offense even more heinous than the serious desertion offense actually levied against him — it poses a formal threat to the integrity of the proceedings. But it gets worse. Here, Trump reaffirmed as president his Bergdahl riffs from campaign rallies despite being on notice that his comments had already jeopardized the prosecution.

Shortly after Trump was sworn in, Bergdahl’s lawyer, Yale’s Eugene Fidell, began arguing that the case against his client should be thrown out on the theory that Trump’s remarks constituted “unlawful command influence.” That rule of military justice forbids any official with the mantle of command authority from taking any action (including making any statement) that could influence a military tribunal that is considering a soldier’s case.

As I explained at the time, this motion to dismiss was meritless because candidate Trump was a civilian wholly outside the military chain of command when he made his remarks. In February, after a hotly contested litigation, the judge, Army Colonel Jeffrey R. Nance, denied Bergdahl’s motion on this rationale.

All the president had to do to avoid further problems for the prosecution was to avoid further commentary about Bergdahl.

Consequently, all the president had to do to avoid further problems for the prosecution was to avoid further commentary about Bergdahl. Too much to ask, apparently.

Even though Bergdahl has pleaded guilty, the president’s foolish remark last week prompted Fidell to renew the dismissal motion. Thus, instead of focusing on the damage wrought to our troops by the deserter’s misconduct, Monday’s commencement of Bergdahl’s sentencing hearing was consumed by soundbites from Trump campaign speeches. The defense contends that, even if the guilty plea stands, Bergdahl should be sentenced to no jail time.

Colonel Nance is plainly taking this claim very seriously. Ominously, he explained that when he denied the motion to dismiss back in February, he had reasoned that the “disturbing” campaign rhetoric could be disregarded because Trump was not in a position of command influence. That rationale, he observed, “tend[s] to be eroded when the now-president of the United States adopts those past statements.” The judge indicated that he interprets Trump’s remarks last week as the equivalent of saying, “I shouldn’t comment on that, but I think everyone knows what I think on Bowe Bergdahl.”

Hard to argue with that.

To summarize, the president spoke about Bergdahl’s case when he had every reason to know that doing so could sabotage the prosecution. In so speaking, he eviscerated the court’s rationale for having earlier ruled in the government’s favor.

Colonel Nance has adjourned the sentencing proceedings until Wednesday in order to consider whether Trump’s remarks warrant granting Bergdahl’s motion for a sentence of minimal, if any, imprisonment. If the “dirty, rotten traitor” gets a pass, the president will have only himself to blame.


Bergdahl Pleads Guilty to Desertion

In 2009, Fox News Was Told to Apologize for Calling Bergdahl a Deserter

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