U.S. judge chides Trump, tosses Bowe Bergdahl desertion conviction
A federal judge on Tuesday voided the court-martial conviction of former Army sergeant Bowe Bergdahl, who in 2009 walked off a U.S. military outpost in eastern Afghanistan and spent the next five years in enemy captivity.
U.S. District Judge Reggie B. Walton finalized a March order granting summary judgment in favor of Bergdahl, who was convicted in October 2017 of desertion and misbehavior before the enemy.
Walton wrote that Bergdahl was denied a fair trial because the military judge who presided over the case did not disclose that while the matter was pending he applied for a job as an immigration judge with the Justice Department, which acted as prosecutor.
The judge rejected Bergdahl’s claim that President Donald Trump exercised unlawful influence as the military’s commander in chief by vilifying him during the case as a “dirty rotten traitor” deserving of execution.
In 2015, Sen. John McCain (R-Ariz.), then the chairman of the Senate Armed Services Committee, called Bergdahl “clearly a deserter” and offered to hold a committee hearing if he was not punished.
Without referring to either Trump or McCain by name, the judge bluntly chided political officeholders and candidates who “express their desired verdict and punishment of individuals merely accused of committing criminal offenses,” saying doing so violates the principle that the accused are innocent until proved guilty.
“Otherwise, the system will become subject to widespread condemnation by the public it serves. And that applies equally to our military justice system,” Walton wrote.
The ruling is not the first time Walton, a 2001 George W. Bush appointee to the federal bench, has criticized Trump. After a trial involving a Jan. 6, 2021, Capitol riot defendant last year, Walton described Trump as a “charlatan” who “doesn’t, in my view, really care about democracy but only about power. And as a result of that, it’s tearing this country apart.”
Both sides can appeal Walton’s ruling. A Pentagon spokesperson declined to comment. Justice Department spokesman Terrence Clark said that “the department will be declining to comment on ongoing litigation at this time.” The office of the former Army colonel who imposed the sentence and a spokesman for the immigration courts, which are part of the Justice Department, did not immediately respond to an emailed request for comment late Tuesday.
Bergdahl defense attorney Eugene Fidell said his team is closely studying the opinion but added, “The winner here is public confidence in the administration of justice.”
“This is a good day for the rule of law, and it’s a good day for the federal courts, because it shows that while they are respectful of the military justice system, they are going to provide independent judicial review,” Fidell said, adding that Walton’s admonition that public officials keep their “mouths shut” about pending litigation was “spot on.”
Bergdahl was sentenced in 2017 to a dishonorable discharge, reduction in rank and forfeiture of $10,000 in pay after becoming the sole U.S. service member to be captured in Afghanistan shortly after he left his post in June 2009. His case became politicized after President Barack Obama held a Rose Garden ceremony to celebrate Bergdahl’s return from five years of imprisonment and intermittent torture in exchange for five Taliban militants, as details of his voluntary abandonment had begun to circulate.
Other U.S. service members suffered life-altering injuries and important battlefield assets were diverted during missions to recover Bergdahl, feeding a debate that challenged the military’s fundamental principle of never leaving a soldier behind. But condemnation by Trump and McCain of Bergdahl’s actions also underscored the noxious effect politics can play within the military and civilian courts.
Walton made clear in his ruling that the military courts gave “full and fair consideration” to Bergdahl’s defense, and that his court-martial, conviction and sentence were justified given his admitted conduct and guilty plea, as well as the serious casualties that resulted from his actions.
However, Walton also faulted the conduct of military judge Jeffrey Nance, then an Army colonel. In court at the time, Nance shrugged off concerns that he might interpret incendiary comments about Bergdahl by Trump as commander in chief as signals from the top to hand down a harsh sentence.
“I don’t have any doubt whatsoever I can be fair and impartial in this sentencing,” Nance said, suggesting the administration had no influence over him because “I’m what’s referred to as a terminal colonel, which means I’m not going anywhere but the retirement pastures … and that’s in almost a year from now.”
But Nance did not reveal that he had applied for a job as an immigration judge and highlighted his role as presiding judge in Bergdahl’s case by including a ruling for the government against the soldier’s “unlawful command influence” motion as his writing sample. He was appointed by the Justice Department the year after Bergdahl’s conviction.
“[T]he ultimate duty in situations of potential judicial disqualification is imposed on the judge,” Walton wrote. “… [T]he military judge here not only failed to disclose potential grounds for disqualification but also affirmatively misled the parties.”
Walton tossed out all of the military judge’s orders beginning on the day Bergdahl pleaded guilty, Oct. 16, 2017, and all related appeals. Walton made clear he was not opining that there was actual bias in the case or that Nance’s orders were not “the product of his considered and unbiased judgment,” but that the “appearance of partiality” was enough.
Depending on the final outcome of litigation, a voided conviction may allow Bergdahl to access benefits and services within the Department of Veterans Affairs, such as education resources and health care. Such benefits are unavailable to former service members with dishonorable discharges.