Plenty of ink has already been spilled on the extent to which statements by President Trump and his advisers can and should be used as evidence of illicit motive in the context of the travel ban Executive Orders. And earlier this week, a Kentucky district judge denied a motion to dismiss a civil suit claiming that then-Candidate Trump incited violence at a rally during the 2016 campaign. But perhaps one of the most important and troubling examples of legal difficulties arising out of… unadvised… statements by the 45th President involves Bowe Bergdahl, the Army sergeant whose court-martial on charges of desertion and misbehavior before the enemy is scheduled for later this year.
During the 2016 election cycle, then-Candidate Trump repeatedly suggested loosening the laws on treason while ominously promising to review Bergdahl’s case; he asserted that Bergdahl had defected to the enemy, saying “he went to the other side” and “negotiated with terrorists;” he described him as a “dirty rotten traitor,” called him “the worst,” “no good,” “this bum,” a “whack job,” “this piece of garbage,” and a “son of a bitch.” He referred to Bergdahl as “a very bad person who killed six people”–variously five, six, or either five or six in number (the number shifted from rally to rally)–who died searching for Bergdahl. He repeatedly observed that deserters used to be shot, implying and at times saying outright that Bergdahl should meet a similar fate (with or without a trial). And, as the above picture demonstrates, he repeatedly pantomimed executions of Bergdahl by rifle, complete with sound effects, to the same apparently anticipated end.
There are at least two problems with all of these statements: First, essentially all of the factual claims are materially false. Second, even if they’re not–and, again, they are–they very well may constitute “unlawful command influence” (UCI), since Bergdahl is set to be tried in a proceeding in which virtually all of the lawyers, judges, and jury are uniformed servicemembers ultimately and directly answerable to President Trump. This post introduces the law of UCI, describes why it’s so important to the integrity of the military justice system, and explains why the questions raised by Trump’s statements vis-a-vis Bergdahl are so important not only for the future of this one court-martial, but for military justice during the Trump presidency more generally.
I. Unlawful Command Influence
As the highest court in the court-martial system–the Court of Appeals for the Armed Forces (CAAF)–has repeatedly observed,
Unlawful command influence has often been referred to as “the mortal enemy of military justice.” Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2000), provides, in relevant part: “No person subject to this chapter may attempt to coerce or . . . influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case . . . .” Even the mere appearance of unlawful command influence may be “as devastating to the military justice system as the actual manipulation of any given trial.”
UCI is such a central issue to the military justice system because of those courts’ unique structure–in which virtually all of the key players in a criminal trial, from the lawyers to the witnesses to the members of the jury to the judge, are uniformed servicemembers who could have both legal and professional reasons not to act against the wishes of those above them in the chain of command. Even the specter that commanders might exercise such influence is a sufficient threat to the public perception of the fairness of courts-martial that unlawful command influence raises both statutory problems under the UCMJ and constitutional concerns under the Fifth Amendment’s Due Process Clause. After all, as then-Judge Baker wrote in 2010, “[i]f allowed in practice, unlawful command influence will have a corroding effect that could prove deadly to the confidence members of the Armed Forces and the public have in the military justice system.”
Thus, for example, in June 2013, a Navy judge found that general comments made by President Obama constituted “unlawful command influence” insofar as he had alluded to the specific “consequences” he saw fit for members of the military convicted of sexual assault–even though Obama’s comments were not directed at any specific case. As a remedy, the judge ruled in two sexual assault cases that the ultimate punishment could not include discharge. Other examples of UCI are legion.
II. President Trump and UCI
Against that backdrop. President Trump’s statements are, to say the least, very troubling. Not only did he refer to Bergdahl on dozens of occasions as a “traitor,” someone who should be “executed,” and (falsely, as) someone who was directly responsible for the death of five (or six) servicemembers. He also promised to review Bergdahl’s case specifically–and to consider relaxing the laws on treason, with a not-so-subtle insinuation that such relaxation might also be directed at Bergdahl. [The website maintained by Bergdahl’s lawyers includes detailed documentation of the statements and a 28-minute video compilation.]
In the context of a civilian criminal prosecution, such comments would be a serious breach of protocol, implicating the kind of interference with the Justice Department for which previous Presidents have gotten into a fair amount of (political) hot water. In the context of the military justice system, especially with a President who seems disinterested in respecting established norms and protocols for institutional independence, they raise an incredibly serious UCI issue.
The government’s response, thus far, has focused on two substantive arguments: that (1) Presidents are not “subject to the UCMJ,” and so can’t commit UCI; and (2) that, even if President Trump could commit UCI, statements made prior to taking office can’t (and shouldn’t) be relevant. Both of these arguments are at least superficially plausible–at least in part because CAAF has never considered them. But to my mind, both of these arguments are ultimately based upon an unduly cribbed understanding of what UCI actually is–and largely miss the broader purpose of the prohibition. After all, imagine if Bergdahl is ultimately acquitted. Do we really think, given his prior comments, that President Trump would not comment publicly on the proceeding, or seek to blame whomever he holds responsible for that outcome, be it the prosecutors, the trial judge, or some other actor? So long as that’s even a reasonable possibility, isn’t there at least the prospect that certain participants in the proceeding might be influenced (or might, at least, appear to be influenced) by the brooding omnipresence of such a large shadow?
III. The Bergdahl Litigation and Its Implications
With that in mind, Bergdahl filed a motion to dismiss his court-martial, or, at the very least, to limit the punishment the court-martial can impose, in light of the statutory and constitutional UCI concerns. The trial judge ruled against him, prompting a petition for a writ of mandamus to the Army Court of Criminal Appeals. That court refused to issue the writ–albeit not on the merits, and without prejudice to Bergdahl pursuing such relief on the far side of his court-martial.
Bergdahl has now filed a writ-appeal petition with the Court of Appeals for the Armed Forces, arguing that, if his court-martial really has been subject to unlawful command influence, he’s entitled to have that issue resolved sooner, rather than later. On Monday, the government responded, and I also filed an amicus brief on behalf of five former judges, taking no position on the merits of the UCI questions, but endorsing Bergdahl’s argument that Court of Appeals is the right court to resolve these issues, and that now is the right time to do so. As the brief explains, unlike the trial court or the Army Court of Criminal Appeals,
This Court, in contrast, is an Article I court of record, see 10 U.S.C. § 941, with independent judges, and with the specific authority to hold civilian leaders of the military accountable for their actions in appropriate cases. See United States v. Hutchins, 72 M.J. 294, 303 (C.A.A.F. 2013) (Ryan, J., concurring in the result). Indeed, “a prime motivation for establishing a civilian Court of Military Appeals was to erect a further bulwark against impermissible command influence.” Thomas, 22 M.J. at 393 (citing Hearings on H.R. 2498 Before a Subcomm. of the House Committee on the Armed Services, 81st Cong., 1st Sess. 608 (1949)); see also United States v. Harvey, 64 M.J. 13, 17 (C.A.A.F. 2006) (“Our responsibility to protect the military justice system against unlawful command influence comes from our statutory mandate to provide oversight of the military justice system. . . . Fulfilling this responsibility is fundamental to fostering public confidence in the actual and apparent fairness of our system of justice.”).
This Court’s especial responsibility for providing oversight of the military justice system dovetails, in this case, with the gravity of the unlawful command influence allegations, which run against the sitting President—the “commander in chief of the Army and Navy of the United States.” U.S. Const. art. II, § 2, cl. 1. It cannot be gainsaid that it is in the interests of all concerned—the Appellant, the Appellees, and the entire military justice system—for the issues presented by the Appellant to be resolved forthwith. Indeed, the Supreme Court has repeatedly suggested that claims involving the personal responsibility of the President raise unique separation-of-powers concerns that militate in favor of immediate—including interlocutory—resolution. See, e.g., Clinton v. Jones, 520 U.S. 681, 689–92 (1997); United States v. Nixon, 418 U.S. 683, 691–92 (1974); see also Nixon v. Fitzgerald, 457 U.S. 731, 743 & n.23 (1982) (noting the “special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers”). So too, here.
Whether a President can commit unlawful command influence—and whether, if so, statements prior to his inauguration can be used as proof thereof—are, for obvious reasons, questions of the utmost importance. If they are resolved against the Appellant, then that would presumably militate against claims of impropriety that might otherwise linger over the court-martial proceedings in Appellant’s case as they unfolded. If, to the contrary, they are resolved in Appellant’s favor, then he may well be entitled to relief from the entire proceeding—a right that cannot be vindicated on the far side of a court-martial, even if he is ultimately acquitted. See, e.g., Abney v. United States, 431 U.S. 651, 660–62 (1977); see also Noyd v. Bond, 395 U.S. 683, 696 n.8 (1969) (“[I]t appeared especially unfair to require exhaustion of military remedies when the complainants raised substantial arguments denying the right of the military to try them at all.”).
Although the brief didn’t make this point, it’s worth stressing that this is surely not the last time we’ll hear about UCI and President Trump. The President has never before had to be this careful about his public comments, and so far he has failed to exercise restraint in tweets and other public statements on pending judicial matters. It should not be difficult to imagine other instances in which similar statements are going to cause mischief for judicial proceedings in general, and for military proceedings, in particular–at least until someone, or some institution, makes it clear that his utterances have consequences. In the Bergdahl case, that consequence may be the very opposite result (dismissal of the charges) from the one he verbally assured voters he would secure.