In 2009, Sergeant Bowe Bergdahl abandoned his post and was captured by the Taliban. Five years later, amid much controversy, President Obama swapped five Taliban detainees to secure his freedom. In March 2015, the government charged Bergdahl with desertion. Thus began the most highly publicized court-martial in recent history.
Less known is the Army’s preliminary investigation. Contrary to widespread speculation, it found no evidence that any soldiers died searching for Bergdahl. The investigation concluded that Bergdahl — influenced by an “abnormal mental state,” which had previously precipitated his discharge from the Coast Guard — had decamped in a deluded effort to inform a general of supposedly poor battalion leadership. Therefore, in October 2015, the investigating officer recommended that “neither jail time nor a punitive discharge are appropriate.”
Donald Trump insisted otherwise.
On Bergdahl’s release, Trump complained that Obama had made a “terrible deal.” Once Bergdahl was charged, Trump systematically used him as a whipping boy to inflame his audiences and advance his presidential ambitions.
Trump’s aspersions were gratuitous, inflammatory, dishonest — and relentless. From April 2015 until after securing the Republican nomination in July 2016, Trump used interviews, rallies, debates, and speeches to launch 45 separate and venomous attacks against Bergdahl, rewriting the textbook on how to prejudice a judicial proceeding.
His most repeated assaults were the most incendiary. Bergdahl was “a dirty, rotten traitor.” In Afghanistan, Bergdahl “went to the other side.” At least “six young, great people were killed going after this bum.” As for punishment, Bergdahl “should be shot” or dropped in the middle of ISIS territory “before we bomb the hell out of it.” After all, “in the good old days [ Bergdahl] would’ve been executed.” On several occasions, Trump pantomimed shooting Bergdahl with a rifle.
After the Army’s preliminary recommendation of lenience, in October 2015, Trump repeatedly complained that Bergdahl “gets no jail time,” “is not even going to get a sentence,” and “is going to get off scot-free.” On Dec. 14, Trump promised that, as president, “we will review his case,” implicitly invoking severe punishment of Bergdahl as a reason to elect him. Whatever the motive, on that same day the Army announced that it would pursue much harsher punishment, including life imprisonment.
Unsatisfied, Trump sustained his assaults on Bergdahl for eight more months. Twice, defense counsel asked him to cease his campaign of vilification; twice, Trump ignored them.
Bereft of alternatives, after Trump’s inauguration Bergdahl’s lawyers moved to dismiss all charges on the grounds of “unlawful command influence” — UCI. The result is a controversy of cardinal importance to the military justice system, in which the Army’s legal arguments seem at odds with due process and common sense.
The Uniform Code of Military Justice states: “No person subject to [the UCMJ] may attempt to coerce or, by any unauthorized means, influence the action of a court-martial . . . or any member thereof.” This provision is rooted in the constitutional guarantee of due process — it bars not only actual, but “apparent” UCI, which can be established by statements that a reasonable person would find prejudicial to the conduct of a court-martial.
Trump’s reckless demagoguery surely qualifies. Nonetheless, the Army argues, so far successfully, that UCI does not apply to a president or, if it does, to public statements made by a candidate who later becomes president — even if the court-martial occurs during his term of office.
This defies reason. The president is the commander in chief of our military, imbued with unique powers over its members and their careers, including those of senior officers indisputably capable of UCI — an irony which demolishes the Army’s disingenuous assertion. There is nothing more “apparent” than that a president’s statements of loathing for the defendant in a court-martial — in Bergdahl’s case, vehement, repeated, and insistent on the outcome — could influence the military jurors and decision-makers charged with determining his fate.
Equally, the law should not absolve Trump’s lethal preelection rhetoric at whatever cost to Bergdahl. To the contrary, Trump’s inauguration invests his slanders with the force of our highest office, creating insuperable questions about the fairness of proceedings against the man he accused of treason. Thus several retired jurists, including military judges, have filed a brief supporting Bergdahl before the US Court of Appeals for the Armed Forces.
The imperative is clear. Military justice cannot countenance a process too tainted to assure the credibility and fairness on which the rule of law depends. No president — present or future — should be licensed to degrade it.Richard North Patterson’s column appears regularly in the Globe. His latest book is “Fever Swamp.” Follow him on Twitter @RicPatterson.