The sad, strange tale of Sgt. Bowe Bergdahl resurfaced in the news as the former deserter from the Afghan War pled guilty to charges of desertion and misbehavior before the enemy. That should have been the end of the saga. Instead, ahead of his sentencing hearing this week, Bergdahl’s attorneys convinced Judge Col. Jeffrey Nance to delay while they probed whether the proceedings were fair.
Why the last-minute change? As in many areas of government these days, the reason arises because of the commander-in-chief, President Donald Trump. Trump’s public comments on the desertion case during the campaign—specifically that Bergdahl was a “dirty, rotten traitor”—led defense attorneys to question the fairness of the entire trial.
No one can dispute that Trump communicates more provocatively than any recent chief executive has. But claiming that Trump’s intemperate tone voids an entire legal proceeding is ludicrous, and in doing so Bergdahl’s legal team is questioning the fundamentals of Anglo-American jurisprudence.
Campaign Slogans Don’t Change the Law
Trump said a lot of things during his presidential campaign, and his unusual rhetoric is part of what attracted many voters. It is the nature of a populist not to pull punches. To some in the legal establishment, Trump’s language is worse than a transgression of manners. They see it as actually changing the way the law is applied.
Trump has kept mum on the Bergdahl question since becoming president, for the most part, but in response to reporters’ questions last week, he said he could not comment on the case, “but I think people have heard my comments in the past.” This saying-without-saying (known as paralipsis) is a favorite rhetorical device of the president’s, and effectively the same as saying the thing he professes not to say. In this case, Bergdahl’s legal team thinks that Trump saying it is enough to overturn the whole case.
According to Bergdahl’s lead defense attorney, Eugene Fidell, Trump’s language on the subject affected the entire military justice apparatus, meaning his client could never receive a fair sentence from the judge. Although the judge had already ruled earlier this year that Trump’s statements did not constitute unlawful command influence, the implicit repetition of those comments this week brought the issue up again. As the Washington Post’s Alex Horton reported Monday, Fidell argued the effect was so extensive that Nance should not impose jail time for Bergdahl.
Because Bergdahl was tried in a military court, the defense’s argument has slightly more credibility than it appears at first blush. The judge is not a member of the Article III judiciary, appointed for life and independent of the other branches. Nance is a member of the military, and therefore of the executive branch, which Trump heads. Trump’s words would have more impact on someone who is theoretically dependent on him for promotion. Nance understood this and reassured the attorneys that he expects no further promotion and plans to retire next year as a colonel.
The attorneys further quizzed the judge on whether he was aware of the more recent Trump comments (he wasn’t, until now). Again, quoting from the Washington Post story: “Nance said he purposely avoided media reports about Bergdahl’s case, adding ‘I don’t have any doubt whatsoever I can be fair and impartial in this sentencing.’” The judge is right, and he would be right even if he had heard the president’s comments. Impartiality has never required ignorance, only a commitment to honest justice.
Is Anyone Impartial?
Fidell’s job is to give his client a vigorous defense, and one cannot completely fault him for making innovative arguments in defense of a man who is pretty clearly guilty. In the absence of any good arguments for why Bergdahl should go free, exotic defenses like this one are Fidell’s only option. In a show of admirable impartiality, Nance allowed the argument to take place and answered the attorneys’ questions on the subject for several hours. But that should really be as far as it goes.
The logical end of Fidell’s argument is that no one in the Army, or indeed in the executive branch, can possibly render an impartial judgment of the defendant. Essentially, because Trump said something about the case in 2015—a time when everyone in politics was talking about it—the entire executive branch is tainted. It is an absurd argument that ends in lawlessness and anarchy.
Trump should probably not have commented on the case since taking office, but only for propriety’s sake, not because it changes anything about the facts or the sentence an individual criminal deserves. The evidence of Bergdahl’s guilt is overwhelming and, more importantly, he already pled guilty. The accused himself admits that he committed the crimes and has submitted himself to the court for judgment, knowing that the president expressed disapproval of him in the press. Trump’s comments changed nothing about Bergdahl’s guilt, nor should they affect his sentence.
A President, Not A King
This is not the first time Trump’s opponents have tried to use his words to defeat the law. In the travel ban cases, American Civil Liberties Union lawyers argued that while the wording of the ban itself was not unconstitutional, Trump’s campaign rhetoric about Islamic terror supplied an animus that required the court to render the law void. One lawyer even went so far as to agree that had an identical ban been enacted by another president, it would not suffer any legal defect.
That is similar to what’s going on in Bergdahl’s case. The problem is not that the law is bad or that the procedures were not conducted properly; the problem is that Donald Trump is president of the United States. Some people, apparently including Fidell, cannot accept the fact of Trump’s election, and see it as a true break from everything that came before it. Their outrage at our president makes them argue—and maybe even believe—that he is so illegitimate that all of his works are illegitimate, as well.
Fidell would have us believe that Trump’s intent, not the military justice system, and not Bergdahl’s actual guilt, is the dispositive element in the trial. This idea is a refutation of the rule of law, elevating the actor over the facts and the law. Because Trump spoke out of turn, they argue, a criminal should go free. But law does not spring from the president the way it did from a medieval king. Trump is not the source of our laws, he is merely the man we have temporarily hired to execute them. However gauche the legal academy finds his pronouncements, they do not displace the rule of law.
Trump approaches the job of president in an unconventional manner, but that does not mean all of our conventions have to be rewritten. This is still a country where we are ruled by laws, not men. A president’s opinion, announced at a campaign rally, does not carry the force of law, and should not be used to let a guilty man escape justice.
