The Bergdahl Sentence is a Travesty

Shawn Mitchell
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Posted: Nov 04, 2017 12:01 AM
The Bergdahl Sentence is a Travesty

A travesty of justice occurred on Friday. A deserter with blood on his heels will walk free, leaving dead and maimed Americans in his wake, because of a bully’s pulpit and a weak man’s bench and gavel. The miscarriage results from a president who tweets too much and a judge who discerns too little. 

Candidate Trump tweeted some harsh things about the consequences he believed deserter Bowe Bergdahl should face. Among other things, Trump called Bergdahl a “dirty rotten traitor” and a “no good traitor who should have been executed.”

Commentators expressed concern at the time about inappropriate command influence prejudicing military proceedings. Military commanders are not supposed to twist subordinate arms about military justice, not even the Commander in Chief. But, candidates are not commanders. Yet.

Still, based on Trump’s angry blasts, Bergdahl’s lawyers sought a pardon or commutation from President Obama. They also sought a dismissal or other leniency from authorities presiding over the court martial. They were turned away in both instances. The presiding judge announced that he had not been influenced by Trump’s public outbursts. In any event, Trump had no command authority when he tweeted. The case continued.

After Bergdahl pled guilty, however, reporters challenged Trump about his pre-election tweets, asking if he had fatally tainted the prosecution. As National Review’s Legal Analyst and former federal prosecutor Andrew McCarthy points out, the only reasonable response for the seated Commander in Chief to offer is “No comment.” Trump needlessly volunteered to the effect: “People heard what I said.” 

Commentators again tutted that Trump was renewing his previous efforts at interference by publicly endorsing his prior thinking. But this time, he did it as president and Commander in Chief. Therefore, he put unlawful pressure on the military and its court martial system. The New York Times reported that the JAG Corps judge was willing to take the bait: 

“I will consider the president’s comments as mitigation evidence as I arrive at an appropriate sentence,” the judge, Col. Jeffery R. Nance of the Army, said during a hearing at Fort Bragg.'”

Today Col. Nance sentenced Bergdahl to a minor fine and a dishonorable discharge. The ruling allows the man who wrote anti-American screeds, who left his post and cost valiant Americans’ their lives and health to walk free on America’s streets. No word yet on his possible book and movie deals.

Nance’s statement is an illogical disgrace and Bergdahl’s sentence is a travesty. 

Nothing in law or logic makes the president's intemperate outbursts or his subsequent mention of them “mitigation” for the crimes of Bergdahl. They are external noise that should have no bearing on the proceeding or Nance’s judgment. They provide no information to suggest Berdahl’s betrayal is less treacherous to his nation or less dangerous for his comrades. They do not shed light on Bergdahl’s mental or physical health, or provide any basis to excuse his actions.

The president’s ill-advised words don’t mitigate in favor of Berdahl. They weigh against continuing the case. They run the risk of tainting the prosecution by undue influence. The case then, should either be deemed compromised and dismissed, or the statements excluded and ignored, and justice administered by the book. They provide no factual, legal, or moral justification to alter a just sentence in Bergdahl’s favor.

This is especially true in a case where the relevant decision maker is a judge and not a jury. Federal rules of evidence allow the exclusion of evidence that may be more prejudicial than relevant or probative. But the concern is primarily about improperly influencing lay jurors. Col. Nance is not an impressionable member of a jury who needs to be protected from sensational headlines. He is a sworn and trained officer and jurist. His appropriate comment should have been: "I will disregard the president's irrelevant and inadmissible commentary. "

He should not have said, and then acted, on the suggestion that he would actually use the president’s comments as a thumb on the scale to benefit the defendant. 

Nance might have meant his ruling as a defiant middle finger aimed at President Trump (which, itself would indicate he was not influenced by unlawful pressure). But, the ruling did not produce a gesture at the president. It was much bigger. It fully, offensively spoke to the men and women who serve and sacrifice, their families, and millions of informed Americans who bear witness. 

May God please comfort the families and rest the souls of the men who died searching to find and rescue the deserter. And may Karma please visit Barack Obama and Susan Rice in their thoughts and dreams and torment them for the lies they knowingly told the nation about former Private Bergdahl.