United States v. Bergdahl

• Court: Court of Appeals for the Armed Forces
• Decided: August 27, 2020
• Docket: 19-0406/AR
• Status: Published

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. Robert B. BERGDAHL, Sergeant United States Army, Appellant No. 19-0406 Crim. App. No. 20170582 Argued June 2, 2020—Decided August 27, 2020 Military Judges: Christopher T. Fredrikson and Jeffery R. Nance For Appellant: Eugene R. Fidell, Esq. (argued); Major Mat- thew D. Bernstein, Sean T. Bligh, Esq., Christopher L. Melendez, Esq., Stephen A. Saltzburg, Esq., and P. Sabin Willett, Esq. (on brief). For Appellee: Captain Allison L. Rowley (argued); Lieuten- ant Colonel Wayne H. Williams and Major Jonathan S. Reiner (on brief); Major Catharine M. Parnell. Amicus Curiae for Appellant: Joshua E. Kastenberg, Esq., and Rachel E. VanLandingham, Esq. (on brief). Judge OHLSON delivered the opinion for a unanimous Court with respect to Part I, and the opinion of the Court with respect to Parts II.A. and II.B., in which Chief Judge STUCKY, Judge SPARKS, and Senior Judge RYAN, joined, and the opinion of the Court with respect to Parts II.C. and III, in which Judge MAGGS and Senior Judge RYAN joined. Judge MAGGS filed an opinion concurring in part and concurring in the judgment. Chief Judge STUCKY filed an opinion concurring in part and dissent- ing in part. Judge SPARKS filed an opinion concurring in part and dissenting in part, in which Chief Judge STUCKY joined. _______________

Judge OHLSON delivered the opinion of the Court.

On June 30, 2009, in Paktika Province, Afghanistan, Ap- pellant, who was then a soldier in the United States Army, intentionally walked away without authority from his combat observation post which it was his duty to defend. Appellant’s decision to leave his post can be attributed, at least in part, to United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

the state of his mental health. See infra Part II.C. Specifi- cally, Appellant erroneously came to believe that poor leader- ship in his battalion put his platoon at risk of being sent on a suicide mission. In order to report his concern, Appellant de- cided to abandon his post and walk approximately twenty miles through hostile territory to reach an American forward operating base. Appellant correctly surmised that upon his disappearance the military would launch a massive search ef- fort. Appellant further believed that when he arrived at his destination he would be presented to the commanding general as the missing soldier for whom the military was searching, and he then would have the opportunity to discuss directly with the general the supposed plight of Appellant’s platoon. However, the actual consequences of Appellant’s desertion were far different from what he had imagined. Soon after abandoning his post, Appellant was captured by the Taliban, held captive for five years under abominable conditions, ex- changed for five members of the Taliban who were detainees at Guantanamo Bay, and prosecuted for his misconduct. At court-martial, Appellant pleaded guilty to desertion with intent to shirk hazardous duty and to misbehavior before the enemy in violation of Articles 85 and 99, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 885, 899 (2012). The military judge sentenced Appellant to a dishonorable dis- charge, reduction to the grade of E-1, and forfeiture of $1,000 per month for ten months. During his court-martial and then on appeal, Appellant argued that public comments made by President Donald Trump, both when Mr. Trump was a candidate for president and after he became Commander in Chief, and by the late Senator John McCain when he served as chairman of the Sen- ate Armed Services Committee, resulted in an appearance of unlawful command influence. An appearance of unlawful command influence arises in a case when an “intolerable strain” is placed on the public’s perception of the military jus- tice system because “an objective, disinterested observer, fully informed of all the facts and circumstances, would har- bor a significant doubt about the fairness of the proceeding.” United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (in- ternal quotation marks omitted) (quoting United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)). Appellant asks this

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Court to dismiss with prejudice the charges and specifications against him, or in the alternative, to grant other meaningful relief such as approving a sentence of no punishment.1 We decline to do so. To be sure, at sentencing Appellant submitted substantial mitigating evidence for consideration. See infra Part II.C. However, it is essential to note that the conduct Appellant engaged in, and the charges to which he pleaded guilty, were very serious offenses for which either a life sentence or the death penalty were authorized punishments. See Articles 85(c), 99(9), UCMJ. Moreover, these offenses were anathema to the military and its mission. And importantly, as a direct and foreseeable consequence of Appellant’s misconduct, other members of the armed forces were injured—some severely— while seeking to find and rescue Appellant. See infra Part II.C. In light of these facts, it is wholly unrealistic to believe there was any scenario where: (1) upon his return to the United States, Appellant would not have been held accounta- ble at a general court-martial for his offenses (to which he vol- untarily pleaded guilty); and (2) Appellant would not have re- ceived the dishonorable discharge he himself subsequently requested. Thus, simply stated, it was the totality of the circum- stances surrounding Appellant’s misconduct rather than any outside influences that foreordained the Army’s handling and disposition of this case. Therefore, an objective, disinterested observer would not harbor any significant doubts about the ultimate fairness of these court-martial proceedings. Accord- ingly, we hold that there was no appearance of unlawful com- mand influence in this case, and we affirm the decision of the United States Army Court of Criminal Appeals.

1 The granted issue is: “Whether the charges and specifications should be dismissed with prejudice or other meaningful relief granted because of apparent unlawful command influence.” United States v. Bergdahl, 79 M.J. 307 (C.A.A.F. 2020) (order granting review).

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I. Applicable Law Both Article 37, UCMJ, 10 U.S.C. § 837 (2012), and Rule for Courts-Martial (R.C.M.) 104(a), prohibit unlawful com- mand influence. Specifically, Article 37(a), UCMJ, states in pertinent part: No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence ad- judged by the court, or with respect to any other ex- ercise of its or his functions in the conduct of the pro- ceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, in- fluence the action of a court-martial . . . or any mem- ber thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts . . . .

Similarly—yet not identically—R.C.M. 104(a) provides: (1) Convening authorities and commanders. No convening authority or commander may censure, reprimand, or admonish a court-martial . . . or any member, military judge, or counsel thereof, with re- spect to the findings or sentence adjudged by the court-martial . . . , or with respect to any other exer- cise of the functions of the court-martial . . . or such persons in the conduct of the proceedings. (2) All persons subject to the code. No person sub- ject to the code may attempt to coerce or, by any un- authorized means, influence the action of a court- martial or any other military tribunal or any mem- ber thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such author- ity’s judicial acts.

There are two types of unlawful command influence that may arise in the military justice system: actual unlawful com- mand influence and apparent unlawful command influence. Here, Appellant only raises the issue of apparent unlawful command influence and thus we examine the facts of this case solely in that context.

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This Court reviews allegations of unlawful command in- fluence de novo.2 United States v. Barry, 78 M.J. 70, 77 (C.A.A.F. 2018) (citing United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013)). To make a prima facie case of apparent unlawful command influence, an accused bears the initial burden of presenting “some evidence” that unlawful com- mand influence occurred. Boyce, 76 M.J. at 249 (internal quo- tation marks omitted) (quoting United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002)). “This burden on the defense is low, but the evidence presented must consist of more than ‘mere allegation or speculation.’ ” Id. (quoting Salyer, 72 M.J. at 423). Once the accused meets the “some evidence” threshold, the burden shifts to the government to prove beyond a rea- sonable doubt that either: (a) the “predicate facts proffered by the appellant do not exist,” or (b) “the facts as presented do not constitute unlawful command influence.” Id. (citing Salyer, 72 M.J. at 423; United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999)). If the government cannot succeed at this step, it must prove beyond a reasonable doubt that the unlaw- ful command influence “did not place an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would [not] harbor a significant doubt about the fairness of the proceeding.” Id. at 249 (alter- ation in original) (internal quotation marks omitted) (citation omitted).

2 Importantly, when employing de novo review, “the appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings.” Black’s Law Diction- ary 121 (11th ed. 2019) (defining “appeal de novo”); see also, e.g., Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991) (“When de novo review is compelled, no form of appellate deference is accepta- ble.”); Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 (2d Cir. 2001) (“When we review a district court’s decision de novo, we take note of it, and study the reasoning on which it is based. However, our review is independent and plenary; as the Latin term suggests, we look at the matter anew, as though the matter had come to the courts for the first time.”).

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II. Analysis A. Ability to Commit Unlawful Command Influence As a threshold matter, based squarely on the plain lan- guage of Article 22, UCMJ, 10 U.S.C. § 822 (2012), Article 37, UCMJ, and R.C.M. 104, we hold that Senator McCain was capable of committing unlawful command influence and that a sitting president of the United States is also capable of com- mitting unlawful command influence. 1. Senator McCain Article 37(a), UCMJ, prohibits any “person subject to [the UCMJ]” from “attempt[ing] to . . . influence the action of a court-martial.” At the time of his public comments regarding Appellant’s case, Senator McCain was a retired member of the United States Navy, and thus he was subject to the UCMJ pursuant to Article 2(a)(4), UCMJ, 10 U.S.C. § 802(a)(4) (2012).3 We therefore hold that Senator McCain was capable of committing unlawful command influence. 2. A President of the United States We hold that a sitting president of the United States is also capable of committing unlawful command influence. R.C.M. 104(a)(1) provides in part: “No convening author- ity . . . may censure, reprimand, or admonish a court-mar- tial . . . .” Under the terms of Article 22(a)(1), UCMJ, a sitting president is a convening authority.4 Thus, the plain language of R.C.M. 104(a)(1) encompasses any convening authority, and unlike Article 37, UCMJ, is not limited to the individual who convened the specific court-martial at issue. In this regard, compare R.C.M. 104(a)(1) which states: “No convening authority . . . may censure, reprimand, or admonish a court-martial” (emphasis added), with Article 37(a), UCMJ, which states: “No authority convening a . . . court-martial may censure, reprimand, or admonish the

3 Article 2(a), UCMJ, reads: “The following persons are subject to this chapter: . . . (4) Retired members of a regular component of the armed forces who are entitled to pay.” 4 Article 22, UCMJ, states: “(a) General courts-martial may be convened by— (1) The President of the United States . . . .”

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court” (emphasis added).5 Far from creating ambiguity, this difference in syntax signals a difference in meaning. See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983) (“We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.”). Any suggestion that we should interpose additional lan- guage into a rule that is anything but ambiguous is the an- tithesis of textualism.6 See Black’s Law Dictionary 1779 (11th ed. 2019) (defining “textualism” as “[t]he doctrine that the words of a governing text are of paramount concern and that what they fairly convey in their context is what the text means”); Neil Gorsuch, A Republic, If You Can Keep It 132 (2019) (“The text of the statute and only the text becomes law. Not a legislator’s unexpressed intentions, not nuggets buried in the legislative history, and certainly not a judge’s personal policy preferences.”); Brett M. Kavanaugh, Book Review, Fix- ing Statutory Interpretation Judging Statutes, 129 Harv. L. Rev. 2118, 2118 (2016) (“The text of the law is the law.”); Elena Kagan, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes, at 8:28 (Nov. 17, 2015), http://today.law.harvard.edu/in-scalia-lecture-kagan-dis- cusses-statutory-interpretation (“We’re all textualists now.”). Indeed, the conclusion that the words of R.C.M. 104(a)(1) nec- essarily differ in meaning from the different words employed in Article 37, UCMJ, is wholly in line with the norm that courts adhere to the plain meaning of any text—statutory, regulatory, or otherwise. See, e.g., Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020) (explaining that courts “may not narrow a provision’s reach by inserting words Congress chose

5 R.C.M. 104(a), a regulation, see Article 36, UCMJ, 10 U.S.C. § 836 (2012), is thus more protective than the statute—Article 37, UCMJ—as it proscribes a broader swath of conduct. This is entirely permissible. See, e.g., United States v. Adcock, 65 M.J. 18, 24 (C.A.A.F. 2007) (explaining that the President has the “authority to prescribe rules and regulations implementing the UCMJ, including provision of ‘additional or greater rights’ than those provided for by Congress” (citations omitted)). 6 Cf. United States v. Bergdahl, __ M.J. __, __ (8) (C.A.A.F. 2020) (Maggs, J., concurring in part and concurring in the judgment).

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to omit”); Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (“If un- certainty does not exist, . . . [t]he regulation then just means what it means—and the court must give it effect, as the court would any law.”); Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017) (stating that it is a “basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written”). Consequently, the clear language of R.C.M. 104(a)(1) pro- vides that any sitting president, to include President Trump, has the ability to commit unlawful command influence. Although we hold that Senator McCain and President Trump could commit unlawful command influence, it does not necessarily follow that they did so. We must still determine whether their conduct resulted in the appearance of unlawful command influence based on the facts of this particular case. B. “Some Evidence” of Unlawful Command Influence We hold that Appellant has satisfied his low burden of pre- senting “some evidence” of unlawful command influence in this case. Boyce, 76 M.J. at 249 (internal quotation marks omitted) (citation omitted). 1. Senator McCain In October 2015 while Appellant’s case was pending a re- ferral decision, Senator McCain told a reporter: “If it comes out that [Appellant] has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee.” Senator McCain was not just a member of the Senate who was subject to the UCMJ, he was the chairman of the Senate Armed Services Committee. This leadership position gave him unique sway over the military. For example, he could de- lay or block assignments or promotions of senior military per- sonnel. See Standing Rules of the Senate, S. Doc. No. 113-18, Rule XXV, at 20 (2013). Further, Senator McCain did not make this public comment in the context of conducting con- gressional oversight of the armed forces regarding military justice issues generally, or the disposition of certain catego- ries of cases, or even the disposition of a particular case that was already final. Rather, Senator McCain made his public threat to hold a hearing in a specific case that was currently pending if the sentence imposed in that specific case was not

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to his liking. This situation is altogether different from stand- ard congressional oversight, and the quid pro quo nature of Senator McCain’s threat entitles Appellant to cite to it as “some evidence” that could cause an “objective, disinterested observer . . . [to] harbor a significant doubt about the fairness” of Appellant’s court-martial. Boyce, 76 M.J. at 248–49 (inter- nal quotation marks omitted) (citations omitted). Senator McCain’s comment was especially problematic be- cause of the timing of his remarks. He made them after learn- ing that the preliminary hearing officer in Appellant’s case recommended that the charges be referred to a special court- martial not empowered to adjudge a bad-conduct discharge, and before the general court-martial convening authority (GCMCA) made a referral decision. Thus, Senator McCain’s public threat to hold a hearing provides “some evidence” of an appearance of unlawful command influence because it had the potential to appear to “coerce or . . . influence” the out- come of Appellant’s court-martial under Article 37, UCMJ.7 Boyce, 76 M.J. at 249, 253 (internal quotation marks omitted). 2. President Trump Appellant also has presented “some evidence” of unlawful command influence with respect to President Trump. Several of the public comments made about Appellant by Mr. Trump at campaign rallies while he was a candidate for president

7 As noted by our colleague, the military judge concluded that “ ‘[t]he defense has simply failed to provide some evidence which, if true, would constitute [unlawful command influence] which would have a logical connection to this court-martial in terms of potential to cause unfairness in the proceedings.’ ” Bergdahl, __ M.J. at __ (6) (Maggs, J., concurring in part and concurring in the judgment) (sec- ond alteration in original) (italics removed). However, this is a con- clusion of law, not a finding of fact, and is reviewed de novo by this Court. United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994) (“Where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that this Court reviews de novo.”). Moreover, we underscore the point that Appellant has solely raised before this Court the issue of apparent unlawful com- mand influence, and a de novo review of the facts as applied to the apparent unlawful command influence demonstrates that Appel- lant has met his initial low burden of presenting “some evidence.”

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were both inaccurate and inflammatory. For example, Mr. Trump made comments such as the following: Take Sergeant Bergdahl, does anybody remember him? (Crowd boos). So, so this is the way we think. So we get a traitor named Bergdahl, a dirty, rotten traitor (crowd applauses [sic]), who by the way when he deserted, six young, beautiful people were killed trying to find him, right? And you don’t even hear about him anymore! Somebody said the other day, “Well he had some psychological problems.” You know, you know in the old days (mimics shooting a rifle), bing, bong! (Crowd cheers). When we were strong, when we were strong. So we get Bergdahl, a traitor, and they [the Taliban] get five of the people that they most wanted anywhere in the world, five killers that are right now back on the battlefield do- ing a job. That’s the kind of deals we make! That’s the kind of deals we make, right? Am I right?

Def. Appellate Ex. No. 56, Compendium of Trump Campaign Comments about Sergeant Bergdahl, at 30–31 [hereinafter Def. Appellate Ex.], and: We get a dirty, rotten, no-good traitor named Berg- dahl. Sergeant Bergdahl. And they [the Taliban] get, they get, five of the greatest people that they know. The biggest killers and believe me they’re back out there and [President Obama] says[,] “Oh they’re not back in the battle,” but believe me folks, they’re back on the battlefield and they want to kill everybody here and they want to kill everybody there. So we get this dirty, rotten, no-good traitor who 20 years ago would’ve been shot, who 40 years ago they would’ve done it within the first hour, and who now might not, maybe nothing’s going to happen. Don’t forget, with Bergdahl we lost at least five people and I watched the parents on television, I’ve seen the parents, I’ve met one of the parents, who’re devas- tated, ruined, destroyed. And they were killed going out to try and bring him back, and they lost five peo- ple, probably six, by the way. But at least five peo- ple. . . . And everybody in the platoon, everybody was saying he walked off, he’s a traitor. They said he’s a whack job but we made this deal knowing. Now I would’ve said[,] “Oh really? He’s a traitor? Pass! Let ’em [the Taliban] have him, he’s done.” Frankly, frankly, I would take that son of a bitch, I’d fly him back, I’d drop him right over the top, I’m tell- ing you. I’m telling you.

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Def. Appellate Ex., at 45. To begin with, “[t]he term ‘traitor’ is particularly odious, particularly in the military community.” United States v. Bar- razamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003). And im- portantly, the record does not support the contention that Ap- pellant was a traitor. Appellant was neither charged with nor convicted of either the federal crime of treason, 18 U.S.C. § 2381 (2012) (“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or else- where, is guilty of treason . . . .”), or the military offense of aiding the enemy, a violation of Article 104, UCMJ, 10 U.S.C. § 904 (2012) (criminalizing aiding or attempting to aid the en- emy, or knowingly harboring the enemy, giving intelligence to the enemy, or communicating with the enemy). Indeed, there is simply no evidence that Appellant sought to defect to or to otherwise aid the Taliban. Rather, throughout his cap- tivity Appellant complied with the Code of Conduct for Mem- bers of the Armed Forces of the United States8 by attempting to escape at least a dozen times. On one occasion he broke free for eight days before the Taliban recaptured him. When asked how he stayed motivated to live despite the escalating torture and abuse, Appellant testified: “Trying to find a way to es- cape, . . . trying to learn as much intel as I could so that I could get that back out if I made it out . . . . And not letting them [the Taliban]—not letting them win.” Likewise, the record does not support the assertion that six (or even five) people were killed trying to find Appellant. However, as explained in detail below, a number of military members were injured—some seriously—while searching for Appellant. In other comments he made on the campaign trail, Mr. Trump opined—prior to Appellant’s court-martial conviction—that Appellant was indeed a deserter.9 Such a

8“If I am captured . . . I will make every effort to escape.” Exec. Order No. 10,631, 3 C.F.R. 266 (1954–1958). 9 For example: “But we fought to get a traitor, who, when our country was strong, would’ve been executed for desertion” Def. Ap- pellate Ex., at 28; “[H]e was a deserter 100% it’s not like the old

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proclamation is antithetical to the presumption of innocence the Constitution affords all accused. See Coffin v. United States, 156 U.S. 432, 453 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”). And yet, we underscore the fact that as a presidential can- didate, Mr. Trump was neither a person “subject to the [C]ode” as a retiree or otherwise, nor a convening authority. See Articles 2, 22, UCMJ. Consequently, by their terms, nei- ther Article 37, UCMJ, nor R.C.M. 104(a)(1), applied to com- ments that Mr. Trump made as a presidential candidate, no matter how inaccurate or unfair those statements were. However, by the time Appellant pleaded guilty at his court-martial, Mr. Trump had become President of the United States. On the same day that Appellant entered his guilty pleas, President Trump made the following remarks during a press conference in the Rose Garden: Well, I can’t comment on Bowe Bergdahl because he’s—as you know, they’re—I guess he’s doing some- thing today, as we know. And he’s also—they’re set- ting up sentencing, so I’m not going to comment on him. But I think people have heard my comments in the past.

President’s News Conference With Senate Majority Leader A. Mitchell McConnell, 2017 Daily Comp. Pres. Doc. 12 (Oct. 16, 2017). The last sentence of this statement was a ratification of, and served to incorporate by reference, the comments Mr. Trump had previously made on the campaign trail regarding Appellant’s case, which are referenced above. See supra pp. 10–12 & n.9. As the military judge succinctly noted: While somewhat ambiguous, the plain meaning of the President’s words to any reasonable hearer could

days, in the old days you deserted you were in big trouble. Today they want to find all sorts of excuses—I don’t know what, it’s crazy, it’s just crazy[,]what’s going on with our country is absolutely in- sane” Def. Appellate Ex., at 368; “I always say, we get Bergdahl, a horrible traitor who deserted! In the old days you get shot! (Mimics a handgun firing with his hand).” Def. Appellate Ex., at 375.

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be that in spite of knowing that he should not com- ment on the pending sentencing in this case[,] he wanted to make sure that everyone remembered what he really thinks should happen to the accused.

And while he was a candidate, Mr. Trump made “what he really thinks” very clear: Appellant was a deserter and a trai- tor who should be severely punished. See generally supra pp. 10–12. This public reference to, and ratification of, these views after Mr. Trump became President had the potential to appear to “censure, reprimand, or admonish a court-mar- tial . . . or any member, military judge, or counsel thereof, with respect . . . to any other exercise of the functions of the court-martial . . . or such persons in the conduct of the pro- ceedings.” R.C.M. 104(a)(1). Similarly, President Trump later posted to the social net- working website Twitter a comment in which he referred to the military judge’s sentencing decision in Appellant’s case as “a complete and total disgrace to our Country and to our Mil- itary.” Donald J. Trump (@realDonaldTrump), Twitter (Nov. 3, 2017, 11:54 AM). This statement appeared both to “cen- sure” the court-martial with respect to the sentence, and had the potential to appear to influence other subsequent “func- tions of the court-martial,” such as the convening authority’s review and action, along with the later appellate phases of this case. R.C.M. 104(a)(1). C. No Intolerable Strain on the Military Justice System As noted above, a sitting president of the United States can commit both apparent and actual unlawful command in- fluence. The same held true for the late Senator McCain. Therefore, statements by such persons about a pending case are perilous. Because of their capacity to influence decision makers in a court-martial, comments about a pending crimi- nal matter pose a grave risk to the goal of ensuring that jus- tice is done in every case. Specifically, improper statements could cause an innocent accused to suffer adverse criminal consequences such as a wrongful conviction or an increased sentence, or could cause a guilty accused to walk free—de- spite the commission of heinous crimes—if the actual or ap- parent unlawful command influence results in the dismissal

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of charges. See, e.g., Barry, 78 M.J. at 80 (dismissing sexual assault charge with prejudice for actual unlawful command influence); United States v. Riesbeck, 77 M.J. 154, 167 (C.A.A.F. 2018) (dismissing charges of making a false official statement, rape by force, and communicating indecent lan- guage with prejudice for actual unlawful command influence); Boyce, 76 M.J. at 253 (dismissing charges of rape and assault consummated by a battery without prejudice for apparent un- lawful command influence). In this particular case, however, we conclude that a find- ing of apparent unlawful command influence is not warranted because there was no intolerable strain on the military justice system. This conclusion is predicated on all of the relevant facts of this case, regardless of whether the various stages of the court-martial proceedings are viewed individually or cu- mulatively. To begin with, compelling evidence was presented at a hearing held pursuant to Article 32, UCMJ, 10 U.S.C. § 832 (2012), that Appellant deserted his unit with intent to shirk hazardous duty and that he engaged in misbehavior before the enemy. Make no mistake—these offenses are very serious. In fact, the Manual for Courts-Martial, United States (MCM) categorizes misbehavior before the enemy as an offense that can be punishable by death, and categorizes desertion as an offense punishable by death, or by any punishment other than death, depending on whether it was committed during a time of war. See Articles 85(c), 99(9), UCMJ; MCM pt. IV, para. 23.e. (2012 ed.). In light of both the severity of these offenses and the strength of the Government’s evidence, an objective, disinterested observer clearly would have expected the Army to court-martial Appellant for this conduct regardless of any public comments by President Trump or Senator McCain. 10

10 In his brief, Appellant refers to a “longstanding practice of not prosecuting returning [prisoners of war] except for offenses committed in captivity.” Brief for Appellant at 21, United States v. Bergdahl, No. 19-0406 (C.A.A.F. Dec. 4, 2019). However, the publication cited by Appellant in support of this proposition is less than clear about the parameters of this so-called “practice.” See Vernon E. Davis, The Long Road Home: U.S. Prisoner of War Policy and Planning in Southeast Asia 154–56 (Office of the Secretary of

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Indeed, every official involved in this case—including the Army Regulation 15-6 investigating officer11 and the Article 32, UCMJ, preliminary hearing officer—recommended that Appellant’s case be sent to some type of court-martial. Thus, there was no appearance of unlawful command influence dur- ing the investigation and preferral stages of this case. In regard to the next stage of the court-martial proceed- ing, Appellant emphatically—and understandably—under- scores the fact that although the Article 32, UCMJ, prelimi- nary hearing officer recommended that this case be referred to a special court-martial not empowered to adjudge a bad- conduct discharge—which would have precluded the dishon- orable discharge that was actually imposed here—the GCMCA in this case, General (GEN) Robert B. Abrams, ulti- mately referred Appellant’s case to a general court-martial that was empowered not only to adjudge a dishonorable dis- charge but also to impose a far longer term of imprisonment. We acknowledge that this aspect of the case is a close question and it has given us great pause. At first blush it raises the question of whether an objective, disinterested observer would harbor a significant doubt about the fairness of the GCMCA’s referral decision and whether it was affected by

Defense, 2000). Further, this “practice” pertained to individuals who served in the Vietnam War, not to military personnel who served in more recent armed conflicts. Id. And importantly, Appellant cites no specific instance of this “practice” having been invoked when a soldier’s intentional and criminal act of desertion resulted in his fellow servicemembers being wounded while trying to rescue the deserter from the enemy. Therefore, we conclude that an objective, disinterested observer would give little weight to Appellant’s argument. 11 See generally Dep’t of the Army, Reg. 15-6, Boards, Commis- sions, and Committees, Procedures for Administrative Investiga- tions and Boards of Officers (Apr. 1, 2016). Major General (MG) Dahl, who served as the Army Regulation 15-6 investigating officer, found that the elements for a criminal offense were met and recom- mended forwarding the investigation “for whatever action, if any, the GCMCA deems appropriate.” MG Dahl’s recommendation was followed. At trial, MG Dahl recommended that no term of impris- onment be imposed on Appellant. Once again, MG Dahl’s recom- mendation was followed.

15 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

Senator McCain’s public comment. Nevertheless, after long consideration, we answer this question in the negative. To start, GEN Abrams stated unequivocally in a sworn af- fidavit that his decisions in this case were “not impacted by any outside influence.” Further, GEN Abrams characterized the statements made by Senator McCain as “inappropriate” and he testified that he “absolutely [did] not” consider them in making his referral decision, demonstrating a denuncia- tion of and disassociation from these comments. Although these two points are not dispositive of the issue in a case in- volving the appearance of unlawful command influence, see Boyce, 76 M.J. at 251 (holding that the military judge erred by relying on the GCMCA’s personal assurances that he was not improperly influenced), they are factors that an objective, disinterested observer would appropriately consider in con- junction with the additional supporting facts discussed below. Next, there is no requirement that a convening authority adopt the recommendations of an Article 32, UCMJ, prelimi- nary hearing officer. See R.C.M. 601. Indeed, any observer of the military justice system would realize that it is not uncom- mon for a GCMCA to refer a case to a court-martial in a man- ner contrary to the recommendation of the Article 32, UCMJ, preliminary hearing officer, even in those instances where there is not a scintilla of unlawful command influence. But beyond this general point, there also are specific facts in the record that would allay the concerns of an objective, disinter- ested observer in this particular case. For example, in properly analyzing this issue, it is vitally important to bear in mind that the Article 32, UCMJ, preliminary hearing officer who recommended a special court- martial in this case noted in his report that he did not have information regarding casualties. He also explained that the “strongest factor” in causing him to make a recommendation for a special court-martial was the fact that the Government failed to submit before him any evidence “demonstrating that anyone was killed or wounded” during the military’s search and recovery efforts related to Appellant’s disappearance. Moreover, he specifically opined in his preliminary hearing report that “the issue of casualties should be conclusively addressed prior to a final decision on the disposition o[f] SGT Bergdahl’s case.” And, as detailed immediately below, it later

16 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

was shown by the Government at sentencing that several American servicemembers were indeed injured, some severely, while on missions primarily designed to locate Appellant. When Appellant’s platoon discovered that he was missing in June 2009, they immediately began searching for him and promptly updated his duty status to DUSTWUN (Duty Status Whereabouts Unknown).12 United States v. Bergdahl, 79 M.J. 512, 518 (A. Ct. Crim. App. 2019). Consequently, thousands of United States soldiers, sailors, airmen, and Marines conducted an intensive search of the region spanning thirty to forty-five days and delaying and deferring many other military operations in an attempt to locate Appellant. Id. One witness testified, “Everybody in Afghanistan was looking for Bergdahl.” The increased presence of American troops precipitated increased interactions with the enemy, which ultimately increased the level of risk to those searching for Appellant. Throughout the DUSTWUN search, there were numerous American casualties, at least three of which required exten- sive medical treatment. During a July 8, 2009, rescue mission to retrieve Appellant, Retired Navy SEAL Senior Chief Petty Officer James Hatch was shot in the leg, requiring eighteen surgeries over several years to treat his injuries. Remco, a military dog, was also killed during the mission. On a differ- ent rescue mission during the same time frame, at least two Army specialists came under rocket-propelled grenade fire. As a result, former Specialist Jonathan Morita sustained se- rious injuries to his right hand, continues to experience phys- ical pain, and has not fully regained the use of his hand de- spite surgery. Additionally, during the same mission, Master

12 DUSTWUN is used “when the responsible commander sus-

pects the member [of the armed forces] may be a casualty whose absence is involuntary, but does not feel sufficient evidence cur- rently exists to make a definite determination of missing or de- ceased.” United States Army Human Resources Command, Army Casualty and Mortuary Affairs Frequently Asked Questions (Mar. 23, 2020), https://www.hrc.army.mil/content/Army%20Casu- alty%20and%20Mortuary%20Affairs%20Fre- quently%20Asked%20Questions (last visited Aug. 19, 2020).

17 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

Sergeant (MSG) Mark Allen was shot through the head. Fol- lowing his injury, MSG Allen was in a “vegetative state,” se- verely disabled, unaware of his surroundings, unable to speak, and rarely able to recognize those around him. Despite undergoing fifteen to twenty surgeries which included the re- moval of both his frontal lobes, MSG Allen continued to expe- rience ninety to one-hundred percent paralysis, suffered from seizures, and required around-the-clock medical care.13 This is precisely the type of casualty information that the Article 32, UCMJ, preliminary hearing officer said must be ascertained before a final disposition was made in Appellant’s case.14 And although the preliminary hearing officer was not aware of these casualties, GEN Abrams served in military po- sitions where he would be privy to such information. After Appellant’s desertion but before his rescue, GEN Abrams be- came the Commanding General of the Third Infantry Divi- sion. He deployed to Afghanistan in that capacity where he received briefings concerning the Army’s efforts to rescue Ap- pellant. Later, GEN Abrams served as the Senior Military As- sistant to the Secretary of Defense, during which time he was present for briefings regarding Appellant, was aware of nego- tiations taking place to effect Appellant’s return from Taliban captivity, and provided daily reports to the Secretary of De- fense concerning Appellant’s health and welfare following his eventual return to the United States. And when GEN Abrams served as the convening authority in Appellant’s case, he held the position of Commanding General of the United States Army Forces Command (FORSCOM), one of the highest com- mand posts in the military. Thus, an objective and disinter- ested observer pondering the fairness of the disposition of this case would recognize that GEN Abrams had ready access to

13 MSG Allen died in October 2019. Jamiel Lynch & Ralph Ellis, Mark Allen, Soldier Injured in 2009 Search for Bowe Bergdahl, Dies, CNN (Oct. 14, 2019), https://www.cnn.com/2019/10/14/us/mark-allen-dies-soldier-who- searched-for-bowe-bergdahl/index.html. 14 The preliminary hearing officer also said that any such evi- dence of casualties needed to be served on the defense. And yet, there is no evidence that the Government did so. However, Appel- lant has not raised this issue before this Court.

18 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

this casualty information at the time he decided to send Ap- pellant’s case to a general court-martial rather than to the more limited special court-martial recommended by the Arti- cle 32, UCMJ, preliminary hearing officer.15 Any lingering doubts an objective, disinterested observer might have about the reasons behind GEN Abrams’s decision to refer Appellant’s case to a general court-martial would be allayed by the following essential point. As noted above, at the time of his referral decision, as well as at the time of his clemency decision, GEN Abrams was the commander of FORSCOM. In that position, his mission was to protect and enhance the war fighting capabilities of our armed forces. See, e.g., Military Construction Appropriations for 1974: Hearings Before the Subcomm. of the H.R. Comm. on Appropriations, 93d Cong. 208 (1973) (“The FORSCOM commander will be re- sponsible for combat readiness of all . . . Army . . . forces . . . .”). An indispensable element of unit cohesion, read- iness, and good order and discipline is the morale of the troops. See, e.g., Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (“[T]o accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.”). Here, an objective, disinterested observer “fully in- formed of all the facts and circumstances,” Boyce, 76 M.J. at 249─50 (internal quotation marks omitted) (quoting Salyer,

15 Even if GEN Abrams had no specific knowledge of any casu- alties at the time he referred the charges to a general court-martial, he was aware of the following: (1) United States Armed Forces con- ducted a massive, long-term manhunt for Appellant in hostile ter- ritory in Afghanistan; (2) during a search of that scale and in that location, it was likely that at least some casualties occurred; (3) the Article 32, UCMJ, preliminary hearing officer specifically noted in his report that evidence about casualties should be developed prior to making “a final decision on the disposition o[f] SGT Bergdahl’s case”; (4) a referral of charges to a general court-martial instead of a special court-martial merely increases the potential maximum punishment that can be imposed on an accused and is not a man- date of a minimum punishment; and (5) evidence about casualties could be presented at trial or sentencing, so by referring Appellant’s case to a general court-martial, GEN Abrams merely would be em- powering the court-martial panel or the military judge to make an appropriate final disposition at that later juncture of the case. Thus, GEN Abrams’s referral decision is consistent with the Article 32, UCMJ, preliminary hearing officer’s recommendation.

19 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

72 M.J. at 423), would recognize that if GEN Abrams had cho- sen to refer Appellant’s case to a special court-martial that was not even empowered to adjudge a bad-conduct discharge, his decision would have been devastating to military morale. After all, members of the armed forces would have realized that GEN Abrams made that referral decision despite the fact that he knew there was overwhelming evidence that Appel- lant had deserted his post in a combat zone with intent to shirk hazardous duty and had engaged in misbehavior before the enemy, and despite the fact that he knew that other ser- vicemembers were injured or were likely injured in the course of the military’s efforts to rescue Appellant from the conse- quences of his own misconduct. Therefore, a hypothetical ob- server would “[not] harbor a significant doubt about the fair- ness of [Appellant’s] proceeding[s],” id. (first alteration in original) (internal quotation marks omitted) (quoting Salyer, 72 M.J. at 423), because he or she would understand that GEN Abrams’s referral decision was squarely rooted in the proper execution of his duties as FORSCOM commander and was not the product of public comments by Senator McCain. In terms of the next stage of Appellant’s court-martial pro- ceedings, it cannot be emphasized strongly enough that Ap- pellant chose to plead guilty to the offenses of desertion with intent to shirk hazardous duty and misbehavior before the enemy.16 In doing so, he explicitly agreed in open court that he was voluntarily pleading guilty because he was in fact guilty and not for any other reason. In a lengthy plea colloquy, Appellant explained in detail his intent to walk off his post in hostile territory, his reasoning for doing so, and the exact steps he took to attain his objective. Additionally, Appellant testified that the charged offenses “accurately and correctly

16 Specifically, pursuant to his guilty pleas, a military judge sit-

ting as a general court-martial convicted Appellant of one specifica- tion of desertion with intent to shirk hazardous duty and one spec- ification of misbehavior before the enemy in violation of Articles 85 and 99, UCMJ. Appellant pleaded guilty to misbehavior before the enemy as the charge was written. However, instead of pleading guilty to the entire charged period of desertion from June 30, 2009, until May 31, 2014, Appellant pleaded guilty to just one day of de- sertion—June 30, 2009—because he was captured the same day he left his observation post. The military judge accepted Appellant’s guilty plea by exceptions and substitutions.

20 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

describe what [he] did.” Based on Appellant’s own words, no impartial observer would conclude that it was the comments made by the President of the United States and/or by the chairman of the Senate Armed Services Committee that caused Appellant to plead guilty; rather, it was the strength of the Government’s evidence that caused him to take that step. Moreover, after Appellant raised to the military judge the issue of apparent unlawful command influence, the mili- tary judge offered Appellant the opportunity to withdraw his plea of guilty, and Appellant declined to do so. Thus, no claim of unfairness regarding the guilty plea phase of the court- martial proceedings can prevail. In terms of the sentencing stage of these proceedings, Ap- pellant presented significant mitigation evidence. For exam- ple, he produced evidence that prior to his Army service, he served in the United States Coast Guard but soon was sepa- rated, at least in part because of his mental health. Indeed, Appellant’s Coast Guard physician noted that Appellant should not be allowed to reenlist in the military unless Appel- lant was first medically cleared by a psychiatrist. Although the Army complied with all applicable regulations regarding the enlistment of Appellant, the Army was not aware of this Coast Guard proviso when it allowed Appellant to join its ranks. Consequently, as a medical expert in this case testi- fied, at the time of the offenses in 2009 Appellant likely suf- fered from several severe preexisting psychiatric conditions, to include schizotypal personality disorder. To be clear, the sanity board in this case concluded that although Appellant was suffering from a severe mental dis- ease or defect, he nevertheless was able to “appreciate the na- ture and quality and wrongfulness of his conduct.” Therefore, an insanity defense did not apply here. However, the record reflects that Appellant’s mental health conditions contributed to his misconduct in Afghanistan and explained in part his exceptionally poor judgment in deserting his post in a combat zone. Notably, the preliminary hearing officer who handled this case pursuant to Article 32, UCMJ, stated in his report that there “is almost unanimous agreement that SGT Berg- dahl left [his post] with good, albeit misguided, motives.”

21 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

Additionally, although it was a tragic consequence of his own decision to abandon his post, Appellant presented com- pelling evidence which detailed the five years he suffered from brutal and persistent physical and psychological torture at the hands of the Taliban. During the first year of his cap- tivity, the Taliban regularly whipped Appellant with copper cables, heavy rubber hoses, and the buttstocks of their AK-47 assault rifles; burned the bottom of Appellant’s feet with matches; and forced Appellant to watch execution videos while threatening to decapitate him. For several months, Ap- pellant’s hands and feet were shackled to a metal bedframe, causing the development of bedsores and resulting in such se- vere atrophy of Appellant’s muscles that he could not walk. Eventually, Appellant’s captors detained him inside an iron cage where he was shackled for the remaining four years he spent as their prisoner. The cage was approximately six feet wide and seven feet long, was made of quarter-inch iron bars spaced approximately four inches apart on all sides—includ- ing on the bottom—and was elevated about eight inches above the ground. The size and construction of the cage made it “ex- cruciatingly painful” to stand, and “impossible” to move around. Appellant was left to “rot inside that cage.” This tor- ture exacerbated Appellant’s preexisting mental conditions. As a result, he requires “more complicated” and “more ex- tended” medical treatment for his mental health problems. However, Appellant is precluded from accessing such health- care benefits provided by the United States Department of Veterans Affairs. See 38 U.S.C. § 5303(a) (2012). And finally, at sentencing Appellant introduced evidence that, upon his return to military custody, he provided signifi- cant intelligence to the Army. One witness at trial described the information supplied by Appellant as a “goldmine” that “reshaped” the Army’s understanding of hostage-taking in the region, potentially helping other prisoners of war in Afghani- stan. This information was later incorporated into Army training programs. Ultimately, however, this mitigation evidence does not overcome our firm conviction that the sentence adjudged in this case had nothing to do with the comments made by Sen- ator McCain or President Trump and was instead based solely on the serious offenses to which Appellant pleaded guilty and

22 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

on the facts established during the Government’s case in ag- gravation. Indeed, it is telling that at his sentencing hearing after his guilty plea, and fully aware of his own case in miti- gation, Appellant specifically recognized that he was deserv- ing of punishment and asked to have a dishonorable discharge imposed upon him. His counsel stated the following: Sergeant Bergdahl has been punished enough. Even the most glorious of confinement facilities would serve no rehabilitative purpose or any princi- ple under our Manual for Courts-Martial . . . based on what Sergeant Bergdahl has suffered at the hands of his Taliban captors for five years and the long-standing physical effects that he would have from that. But punishment is warranted for his actions, and the defense would request that you give Sergeant Bergdahl a dishonorable discharge . . . .

(Emphasis added.) Then, during a lengthy exchange between Appellant and the military judge, Appellant acknowledged both that he was fully aware of the implications of receiving a dishonorable dis- charge and that he wanted the military judge to impose that specific punishment upon him. Accordingly, it is difficult in- deed to discern how an impartial observer would conclude that this aspect of Appellant’s sentence was unfair. Moreover, we underscore the fact that despite the sensa- tional nature of this case, despite the public calls for the lengthy imprisonment of Appellant, despite Senator McCain’s threat that he would hold a hearing if Appellant did not re- ceive a sentence to his liking, and despite the Commander in Chief’s ratification of his statements that Appellant was a traitor who should be severely punished, the military judge imposed on Appellant no prison time whatsoever. Thus, an ob- jective, disinterested observer would conclude that rather than being swayed by outside forces, the military judge was notably impervious to them. Indeed, it can be said that this result—whether one agrees with it or not—stands as a testa- ment to the strength and independence of the military justice system. Therefore, assertions of an appearance of unlawful command influence are once again unavailing.

23 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

And finally, in terms of the clemency and appellate stages of this case, we reiterate the following critical points: Appel- lant pleaded guilty to deserting his unit with intent to shirk hazardous duty and of engaging in misbehavior before the en- emy; American servicemembers were injured searching for Appellant after he chose to desert his post in a combat zone; the United States government was required to exchange five members of the Taliban who had been held at the U.S. deten- tion facility in Guantanamo Bay, Cuba, in order to secure Ap- pellant’s release; and yet the military judge imposed as a sen- tence only a dishonorable discharge, a reduction in rank, and partial forfeitures of pay after Appellant specifically asked to receive a dishonorable discharge. Under these circumstances, we are confident that an objective, disinterested observer would decide that the convening authority’s decision not to exercise his discretionary clemency authority on behalf of Ap- pellant was a foregone conclusion unaffected by any public comments made about the case. We further observe that Ap- pellant’s post-trial matters submitted to the convening au- thority were “absent of any formal request for clemency in the form of a sentence reduction.” Bergdahl, 79 M.J. at 526. Sim- ilarly, we conclude that in light of these facts, there would be no basis for an impartial observer to believe that the decision by the Army Court of Criminal Appeals to affirm the findings and sentence in this case was in any way unfair. III. Conclusion The totality of these circumstances makes it clear beyond a reasonable doubt that the comments made by President Trump and Senator McCain—regardless of how “troubling,”17

17 Bergdahl, 79 M.J. at 519 (internal quotation marks omitted).

24 United States v. Bergdahl, No. 19-0406/AR Opinion of the Court

“disturbing,”18 “disappointing,”19 “inaccurate,”20 “inappropri- ate,”21 and “ill-advised”22 they were—did not place an intoler- able strain upon the public’s perception of the military justice system in this particular case. Rather, the record reflects that the decision-making at each stage of Appellant’s court-mar- tial proceedings was unaffected by any outside influences. Therefore, we are confident that “an objective, disinterested observer, fully informed of all the facts and circumstances, would [not] harbor a significant doubt about the fairness of these proceedings.” Boyce, 76 M.J. at 249 (internal quotation marks omitted) (quoting Lewis, 63 M.J. at 415). Accordingly, we affirm the decision of the United States Army Court of Criminal Appeals.

18 Id. (internal quotation marks omitted). 19 Id. (internal quotation marks omitted). 20 Id. at 527 (internal quotation marks omitted). 21R. of Trial, United States v. Bergdahl, vol. XXXVI, 579 (testi- mony of GEN Robert Abrams). 22 Bergdahl, 79 M.J. at 522 (internal quotation marks omitted).

25 United States v. Bergdahl, No. 19-0406/AR

Chief Judge STUCKY, concurring in part and dissenting in part.

This case has caused me as much concern as any in the more than thirteen years I have sat on this Court. It was su- perbly argued and has brought forth the finest efforts of my colleagues, both in the majority opinion and in the concur- rences. I join Judge Sparks’s opinion but find it necessary to write separately to express my dismay that senior members of our government thought it appropriate to try to influence the outcome of Appellant’s court-martial. In the past, I have questioned the doctrine of apparent un- lawful command influence, but the Court has adhered to it. See United States v. Boyce, 76 M.J. 242, 254 (C.A.A.F. 2017) (Stucky, J., dissenting). Moreover, if there ever were a case in which it should be applicable it is this one. Senator McCain certainly had a right to announce that he intended to hold hearings on Appellant, as Judge Maggs cor- rectly points out. But conditioning the hearings on Appel- lant’s receiving a sentence to no punishment was undoubtedly meant to cause the sentencing authority and the convening authority to carefully consider the adverse personal and in- stitutional consequences of adjudging or approving such a sentence. President Trump’s vicious and demeaning remarks about the treatment he believed Appellant should receive were re- layed to members of the public, some of whom would be called upon to decide Appellant’s fate. Given the reckless nature of the comments made and ratified by the President and the glare of publicity that surrounds the utterances of any presi- dent, and particularly this one, the government has a unique burden to bear in rebutting the appearance of unlawful influ- ence. It has not done so. That being the case, I agree with Judge Sparks: the comments of Senator McCain and the Pres- ident have placed an intolerable strain on the military justice system, and the only appropriate remedy is dismissal of the charges and specifications with prejudice. One final thing needs to be said. This case is unique in modern American military jurisprudence. Let us hope that we shall not see its like again. United States v. Bergdahl, No. 19-0406/AR

Judge SPARKS, concurring in part and dissenting in part, with whom Chief Judge STUCKY joins.

This case is a cautionary example of the vulnerabilities of the military justice system and lends fodder to those who continue to question whether the military has a credible criminal justice system. I am concurring in part and dissenting in part from the majority opinion.1 I agree with the majority that (1) both the late Senator McCain and the President could commit unlawful influence under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial, United States (MCM), and (2) that there is some evidence that each committed such influence. However, I part with the majority’s ultimate conclusion that the Government carried its burden to establish beyond a reasonable doubt that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceedings. Additionally, in my view, the egregious circumstances of this particular case deprived Appellant of due process under the Fifth Amendment of the United States Constitution. U.S. Const. amend. V. I. The Commander in Chief As Commander in Chief, the President has significant authority and control over the military and the military justice system. With regard to the latter, under Article 36, UCMJ, 10 U.S.C. § 836, Congress has delegated authority to the President to create procedural rules for the administration of justice via the MCM. Under that authority, as the majority has held, the President is a convening authority. Furthermore, although not commanders in the strict military sense, the President, the Secretary of Defense, and the service secretaries are vested with the mantle of command authority. See Article 22, UCMJ, 10 U.S.C. § 822; Amicus Brief in Support of Appellant’s Petition for Grant of Review at 6, United States v. Bergdahl, No. 19-0406 (C.A.A.F. Aug. 12, 2019). Thus, when the President or any of these authorities inject

1 I join Parts I, II.A., and II.B. of the opinion of the Court, but respectfully dissent from Parts II.C. and III. United States v. Bergdahl, No. 19-0406/AR Judge SPARKS, concurring in part and dissenting in part

themselves into the military justice system in a manner intending or appearing to compromise a military accused’s right to a fair trial, a significant potential unlawful influence problem arises. Further, as admirably and thoroughly detailed by Professors Joshua E. Kastenberg and Rachel E. VanLandingham in their amicus brief to this Court cited above, the President pursuant to his Article II powers retains significant control over the military establishment. Id. In essence, the Chief Executive of the country enjoys a position atop the military justice system that allows his voice to be heard far and wide. II. The Appearance of Unlawful Influence As noted earlier, the majority and I disagree on application of the standard used to determine an appearance of unlawful influence in this case. Specifically, I disagree that the Government carried its burden to establish that the cumulative effect of Senator McCain’s comment; his staff’s persistent focus on this particular case; the constant invective directed at this accused by the Commander in Chief as a candidate and later ratified once elected to office; and the Commander in Chief’s comments while in office, did not put an intolerable strain on public perception of the military justice system. Unlike the majority, I cannot conclude that “an objective, disinterested observer, fully informed of all the facts and circumstances” would not “harbor a significant doubt about the fairness of the proceeding.” United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (internal quotation marks omitted) (citation omitted). I believe this fictional member of the public must have some basic understanding of the importance of the concept of unlawful influence and its potentially corrosive effect on the military criminal justice system. Because of the unique nature of the military justice system and the even more unique nature of the concept of unlawful command control, a typical member of the public may be unable to comprehend the full breadth and complexity of the issue. In fact, arguably, the only comparable issue in state and federal criminal justice systems is adverse pretrial publicity.

2 United States v. Bergdahl, No. 19-0406/AR Judge SPARKS, concurring in part and dissenting in part

Although, the facts of this case giving rise to the appearance of unlawful influence could also fairly be characterized as adverse pretrial publicity, every military justice practitioner understands the difference between the two concepts. Unlawful influence exerted on the military trial process corrupts and erodes the very legitimacy of the system. It is not simply a question of a damaging adjacent outside influence. The process itself is tainted. By imputing this understanding to the fictional observer, we are arming him or her with the necessary information to properly assess whether a given set of facts places an intolerable strain on the system. An observer with an appreciation for the unique role of undue influence in the military justice process is, in my mind, more suitably positioned to assess the degree of strain such influence might impart. Under the circumstances of the present case, such an informed observer would believe that—whether or not the results of Appellant’s trial were foreordained—the comments of Senator McCain and of the Commander in Chief corrupted the trial process beyond repair. III. Due Process The facts of this case also raise a serious due process concern. The concept of constitutional due process is rooted in the notion of fundamental fairness, and this Court has long recognized this concern as it pertains to unlawful command influence. “The exercise of command influence tends to deprive servicemembers of their constitutional rights.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). “[I]n the military justice system both the right to a trial that is fair, and the right to a trial that is objectively seen to be fair, have constitutional dimensions sounding in due process.” Boyce, 76 M.J. at 249 n.8. Congress’s “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. So the question arises: What process was due the accused in this case? During the period in which the UCMJ was being drafted, Congress struggled with striking the appropriate balance

3 United States v. Bergdahl, No. 19-0406/AR Judge SPARKS, concurring in part and dissenting in part

between discipline and justice. One of the most controversial issues was the extent to which officers in the chain of command should be authorized to influence courts-martial. See United States v. Littrice, 3 C.M.A. 487, 13 C.M.R. 43 (1953).2 In Littrice, the first judges appointed to this Court made it apparent that they understood the critical responsibility of resolving the delicate balance between command control and true justice: Thus, confronted with the necessity of maintaining a delicate balance between justice and discipline, Congress liberalized the military judicial system but also permitted commanding officers to retain many of the powers held by them under prior laws. While it struck a compromise, Congress expressed an intent to free courts-martial members from any improper and undue influence by commanders which might affect an honest and conscientious consideration of the guilt or innocence of an accused. Id. at 491, 13 C.M.R. at 47. In Littrice, this Court ultimately determined that undue influence had occurred, concluding that “[t]he accused was convicted and sentenced by a court- martial which was not free from external influences tending to disturb the exercise of a deliberate and unbiased judgment.” Id. at 496, 13 C.M.R. at 52 (emphasis added). Preserving the inherent fairness of the military justice process by shielding it from outside influence continues as one of this Court’s highest responsibilities. Such preservation of an accused’s due process protects the impartial and truth-seeking nature of the military, and indeed any, justice system.

2 Over the years that military justice has been under criticism, and particularly during the period the new Uniform Code of Military Justice was being prepared by the Morgan Committee and studied by Congressional Committees, one of the most controversial issues with which all interested parties was concerned dealt with the extent officers in the chain of command should be authorized to influence court-martial activities. Littrice, 3 C.M.A. at 490, 13 C.M.R. at 46.

4 United States v. Bergdahl, No. 19-0406/AR Judge SPARKS, concurring in part and dissenting in part

IV. Remedy Many of our past cases dealt with allegations of the appearance of unlawful influence in which the influence was directed towards various participants in the court-martial system other than the accused. E.g., United States v. Lewis, 63 M.J. 405, 406 (C.A.A.F. 2006) (appearance of unlawful influence by the government directed towards the military judge); United States v. Salyer, 72 M.J. 415, 417 (C.A.A.F. 2013) (appearance of unlawful influence by the government directed towards the military judge); Boyce, 76 M.J. at 244 (appearance of unlawful influence by the Air Force chief of staff directed towards the convening authority). However, in a military trial, the accused is the most important participant since he or she has the most at stake. Moreover, remedies ordered in these past cases have been designed to vindicate a variety of constitutional and regulatory rights afforded a military accused. E.g., Lewis, 63 M.J. at 416 (charges and specifications dismissed without prejudice because the error of unlawful command influence cannot be rendered harmless); Salyer, 72 M.J. at 428 (findings and sentence dismissed with prejudice because “any remedy short of dismissal at this stage would effectively validate the Government’s actions”); Boyce, 76 M.J. at 253 (reverse findings and sentence without prejudice, recognizing that “in individual cases that are properly presented to this Court … we will meet our responsibility to serve as a ‘bulwark’ against [unlawful command influence] by taking all appropriate steps within our power to counteract its malignant effects”). It stands to reason that since this Court has previously been willing to afford the accused a remedy when the unlawful influence was directed towards other participants, we certainly should afford a remedy when the unlawful influence is directed at the accused himself. An accused servicemember has a due process right to be tried in an environment that is free from personal and public vilification by high, even the highest, authorities in the system. The entire trial process must be one that promotes the legitimacy of the military justice system.

5 United States v. Bergdahl, No. 19-0406/AR Judge SPARKS, concurring in part and dissenting in part

V. Conclusion “Command influence is the mortal enemy of military justice.” Thomas, 22 M.J. at 393. “[T]he apparent existence of ‘command control’ … is as much to be condemned as its actual existence.” United States v. Johnson, 14 C.M.A. 548, 551, 34 C.M.R. 328, 331 (1964). “There is no doubt that the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial.” United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991) overruled on other grounds by United States v. Dinger, 77 M.J. 447 (C.A.A.F. 2018). For years, we have quoted these principles. We have a responsibility to act and rule in accordance with them. Never in the history of the modern military justice system has there been a case in which the highest level figures, including the Commander in Chief, have sought to publicly demean and defame a specific military accused. The vilification of Sergeant Bergdahl before, during, and after his court-martial was unprecedented, hostile, and pernicious in the extreme. It both placed an intolerable strain on the military justice system and denied the accused his due process right to a fair trial. I am compelled to conclude that the only appropriate remedy in this case is dismissal of the findings and sentence with prejudice. Therefore, I must respectfully dissent from so much of the analysis and judgment that concludes otherwise.

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Judge MAGGS, concurring in part and concurring in the judgment. The lead opinion correctly reasons that Appellant is not entitled to relief under a theory of apparent unlawful com- mand influence unless three conditions are met. The first con- dition is that the prohibitions in Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2012), or Rule for Courts-Martial (R.C.M.) 104(a)(1), were applicable to the late Senator John McCain and to President Donald Trump when they made certain statements about Appellant and his court-martial. The sec- ond condition is that Appellant has produced “some evidence” that one or more of the statements violated the prohibitions of these provisions. United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (internal quotation marks omitted) (citation omitted). The third condition is that the Government has failed to prove beyond a reasonable doubt that the statements “did not place an intolerable strain on the public’s perception of the military justice system.” Id. at 252. The lead opinion determines that the first two conditions are satisfied but that the third condition is not. The lead opinion therefore con- cludes that Appellant is not entitled to relief. My views are different, but I reach the same ultimate con- clusion. Contrary to the lead opinion, I do not believe that the second condition was met with respect to Senator McCain’s statements based on the military judge’s findings of fact. In addition, I do not believe that the first condition is met with respect to President Trump because he was not the convening authority in this case and thus did not violate either Article 37(a), UCMJ, or R.C.M. 104(a)(1). I therefore do not join Parts II.A. or II.B. of the lead opinion. As I explain below, I other- wise concur in the lead opinion and I concur in the judgment affirming the decision of the United States Army Court of Criminal Appeals. I. Senator McCain and Article 37(a), UCMJ Article 37(a), UCMJ, protects courts-martial from outside interference in several ways. At the time of the events in ques- tion, the second sentence of this article read as follows: No person subject to this chapter may attempt to co- erce or, by any unauthorized means, influence the action of a court-martial or any other military tribu- nal or any member thereof, in reaching the findings United States v. Bergdahl, No. 19-0406/AR Judge MAGGS, concurring in part and in the judgment

or sentence in any case, or the action of any conven- ing, approving, or reviewing authority with respect to his judicial acts. Article 37(a), UCMJ. I agree with the determination in Part II.A.1 of the lead opinion that this provision applied to Sena- tor McCain because, as a military retiree, he was a “person[] . . . subject to this chapter.” Article 2(a)(4), UCMJ, 10 U.S.C. § 802(a)(4). But I disagree with the determination in Part II.B.1 of the lead opinion that Appellant provided “some evi- dence” that Senator McCain violated this provision when he declared: “If it comes out that [Appellant] has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee.” A close examination of the second sentence of Article 37(a), UCMJ, reveals that it contains two prohibitions. One is a proscription against “attempt[ing] to coerce . . . the action” of a convening authority or other listed persons who are not at issue here. Because the UCMJ does not define the term “coerce,” we must assume that Article 37(a), UCMJ, and other provisions in the UCMJ employ the term in accordance with its ordinary meaning.1 See United States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015) (“In the absence of any specific stat- utory definition, we look to the ordinary meaning of the word.”). Black’s Law Dictionary defines “coerce” to mean “compel by force or threat” and defines “threat” to mean “a communicated intent to inflict harm or loss on another or an- other’s property.” Black’s Law Dictionary (11th ed. 2019) (en- tries for “coerce” and “threat”). Definitions from other diction- aries are similar.2 In this case, the military judge found that “[n]either Senator McCain, nor anyone else, has threatened or otherwise tried to forcefully influence [the convening au- thority’s] decisions in this case.” Appellant does not contend that this finding of fact is clearly erroneous. Senator McCain

1 The terms “coercion” and “coerce” also appear in Articles 31(d) and 120(g)(4)(c), UCMJ, 10 U.S.C. §§ 831(d), 920(g)(4)(c), respectively. 2 See, e.g., 1 Shorter Oxford English Dictionary 442 (5th ed. 2002) (defining “coerce” to mean “[f]orcibly constrain or impel”); Webster’s Third New International Dictionary, Unabridged 439 (1986) (defining “coerce” to mean “compel to an act or choice by force, threat, or other pressure”).

2 United States v. Bergdahl, No. 19-0406/AR Judge MAGGS, concurring in part and in the judgment

therefore did not violate the second sentence of Article 37(a), UCMJ, by attempting to “coerce” the convening authority when he stated the need for a hearing if Appellant received no punishment. The other prohibition in the second sentence of Article 37(a), UCMJ, is a proscription against attempting “by any un- authorized means [to] influence the action” of a convening au- thority or other listed persons not relevant here. In applying this provision, the question is whether Senator McCain’s statement that a Senate committee will hold a hearing if Ap- pellant receives no punishment was “some evidence” of both (a) an attempt “to influence the action” of the convening au- thority, and (b) an “unauthorized means” of doing so. Based on the Supreme Court’s holdings with respect to Congress’s power to investigate and the military judge’s findings of fact, the answer to this question is no. The Supreme Court has recognized that Article I of the Constitution implicitly grants Congress authority to gather information necessary for intelligently exercising its enumer- ated powers. The Supreme Court has explained: The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the ad- ministration of existing laws as well as proposed or possibly needed statutes. It includes surveys of de- fects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inef- ficiency or waste. Watkins v. United States, 354 U.S. 178, 187 (1957); see also Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975) (“[T]he power to investigate is inherent in the power to make laws because ‘[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the condi- tions which the legislation is intended to affect or change.’ ” (second alteration in original) (quoting McGrain v. Daugh- erty, 273 U.S. 135, 175 (1927))); Barenblatt v. United States, 360 U.S. 109, 111 (1959) (“The scope of [Congress’s] power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitu-

3 United States v. Bergdahl, No. 19-0406/AR Judge MAGGS, concurring in part and in the judgment

tion.”). The Supreme Court further has recognized that Con- gress may delegate its constitutional investigative powers to committees and subcommittees, such that they “are endowed with the full power of the Congress to compel testimony.” Watkins, 354 U.S. at 201 (emphasis added); see also Eastland 421 U.S. at 505. And holding or proposing to hold “embarrassing oversight hearings” is one common way that Congress ensures that Executive Branch officers do not abuse their discretion in implementing federal law. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2258 (2001). To be sure, Congress’s power to investigate, including its power to hold hearings, is not unlimited. The Supreme Court has indicated that congressional investigations “must be re- lated to, and in furtherance of, a legitimate task of the Con- gress.” Watkins, 354 U.S. at 187. Similarly, the Supreme Court has said that Congress cannot hold hearings solely “to expose the private affairs of individuals without justification in terms of the functions of the Congress.” Id. The Supreme Court has also asserted that investigations “conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Id. And the Su- preme Court has declared that Congress’s investigative pow- ers are limited to legislative concerns, explaining: “Congress [is not] a law enforcement or trial agency.” Id. But the Su- preme Court has never held that Congress is disabled from investigating executive and judicial responses to criminal conduct.3 In this case, Appellant argues that Senator McCain’s statement that the Senate Armed Services Committee would have to hold a hearing if Appellant received no punishment crossed the line between the authorized and the unauthorized because it was a “blatant threat to the fair administration of military justice” and it served to “ensure that punishment ensued.” If the military judge’s findings of fact supported these arguments, they might warrant further inquiry even

3 Congress, indeed, often investigates the federal response to alleged criminal conduct. A prominent example in the military con- text involved is discussed in United States v. Calley, 46 C.M.R. 1131, 1138 (A.C.M.R. 1973).

4 United States v. Bergdahl, No. 19-0406/AR Judge MAGGS, concurring in part and in the judgment

though they do not fit neatly within the categories of exceptions to Congress’s investigative powers that the Supreme Court previously has identified. But the military judge did not find that Senator McCain had threatened the fair administration of justice or that his comments ensured that Appellant would receive punishment. On the contrary, the military judge found that even though Senator McCain had considerable power as the chair of the Senate Armed Service Committee “there is absolutely no evidence that he has attempted or threated to use any such power to control the discretion of those in SGT Bergdahl’s military justice chain of command.” The military judge further found that “[n]either Senator McCain nor members of his staff have ever even attempted to contact” the convening authority or members of his staff. The military judge also found that Senator McCain’s intention was not to influence the trial but was instead “political posturing designed to embarrass a political opponent (President Obama) and gain some political advantage.” And consistent with these findings, the military judge found that the convening authority “was not affected by [Senator McCain’s] comments and did not consider them in making his decision as to the disposition of the charges against SGT Bergdahl.” These findings are all findings of fact, and we must accept them unless they are clearly erroneous.4 Here, Appellant has not argued that any of military judge’s findings are clearly erroneous. Based on these findings of fact, I agree with the military judge’s legal conclusion that Senator McCain did not attempt to influence the court-martial by unauthorized means in vio- lation of Article 37(a), UCMJ. The military judge correctly reasoned: Certainly it is true that, as [Senator McCain] said, he could hold hearings at the [Senate Armed Ser- vices Committee]; as the Chairman, that is certainly his prerogative. But, such hearings are designed to

4 For comparison, see, e.g., McDonnell v. United States, 136 S. Ct. 2355, 2371 (2016) (noting whether public official makes a quid pro quo agreement is a question for the trier of fact); McCormick v. United States, 500 U.S. 257, 270 (1991) (noting intent of state leg- islator in asking for money from constituents is a question for the trier of fact).

5 United States v. Bergdahl, No. 19-0406/AR Judge MAGGS, concurring in part and in the judgment

uncover malfeasance or malfeasance by public offi- cials in the exercise of the public trust and are not a review or check on a particular court-martial. The [Senate Armed Services Committee] simply has [no] ability to oversee the trial of this case in particular or trials by court-martial in general. They can cer- tainly hold hearings, gather information and draft and submit changes to the UCMJ to the [C]ongress for vote. However, such changes would be: 1) Pro- spective and 2) Not tied to or effecting [sic] a partic- ular case that has already been disposed of. The de- fense has simply failed to provide some evidence which, if true, would constitute [unlawful command influence] which would have a logical connection to this court-martial in terms of potential to cause un- fairness in the proceedings. Emphasis added. Perhaps Appellant could have developed additional facts at trial that might support his arguments. But we have no authority to find additional facts at this stage of the proceed- ings. Accordingly, based on the absence of findings of fact nec- essary to support Appellant’s theory that Senator McCain’s statements constituted an attempt by unauthorized means to influence the convening authority, Appellant has failed to “show ‘some evidence’ that unlawful command influence oc- curred.” Boyce, 76 M.J. at 249 (citation omitted). II. President Trump and R.C.M. 104(a)(1) I agree with the lead opinion that Article 37(a), UCMJ, did not apply to President Trump, either before or after he as- sumed office.5 But I disagree with the lead opinion’s determi-

5 The various limitations in Article 37(a), UCMJ, apply to an “authority convening a general, special, or summary court-martial,” a “commanding officer,” and a “person subject to this chapter [i.e., subject to the UCMJ].” President Trump was not an authority con- vening a court-martial because he did not convene a court-martial. President Trump was not a commanding officer because Article 1(3), UCMJ, 10 U.S.C. § 801(3), defines that term to “include[] only commissioned officers,” which President Trump was not. And un- like Senator McCain, President Trump was not a person subject to the UCMJ because he was not an active or retired member of the military and did not fit within any of the other classes of persons listed Article 2(a)(1), UCMJ.

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nation in Part II.A.2 that R.C.M. 104(a)(1) applied to Presi- dent Trump. At the relevant times, R.C.M. 104(a)(1) read as follows: No convening authority or commander may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sen- tence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings. Emphasis added. The parties disagree about whether the term “convening authority” in R.C.M. 104(a)(1) covers President Trump. Ap- pellant contends that the term includes President Trump be- cause he has the power to convene a general court-martial. The Government argues that the term includes only the per- son who actually convened the specific court-martial at issue, which in this case was General Abrams, not President Trump. Neither party has identified any precedent that directly an- swers this question about the meaning of “convening author- ity” in R.C.M. 104(a)(1). The lead opinion sides with Appellant, relying on Article 22(a)(1), UCMJ, 10 U.S.C. § 822(a)(1), which provides that “[g]eneral courts-martial may be convened by . . . the Presi- dent of the United States.” But Article 22(a)(1), UCMJ, does not answer the issue disputed by the parties. The interpretive question is whether the term “convening authority” in R.C.M. 104(a)(1) refers to the authority who actually convened the court-martial at issue or instead refers more broadly to any- one who has the power to convene a court-martial. Article 22(a)(1), UCMJ, does not resolve this issue because it merely says that the President is a person who may convene a court- martial. If the term “convening authority” in R.C.M. 104(a)(1) means only the authority who actually convened the specific court-martial at issue, then Article 22(a)(1), UCMJ, is irrele- vant because President Trump did not convene this court- martial, even though he had the power to do so. In my view, the answer to the disputed issue lies in recog- nizing the important “principle that a text does include not only what is express but also what is implicit.” Antonin Scalia

7 United States v. Bergdahl, No. 19-0406/AR Judge MAGGS, concurring in part and in the judgment

& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 96 (2012). As Justice Antonin Scalia and Professor Bryan Garner have explained, “[a]dhering to the fair meaning of the text (the textualist’s touchstone) does not limit one to the hyperliteral meaning of each word in the text. . . . The full body of a text contains implications that can alter the literal meaning of individual words.” Id. at 356. In this case, each party is essentially arguing that R.C.M. 104(a)(1) contains implicit qualifiers. Appellant believes that the term “conven- ing authority” implicitly means a person empowered to act as a convening authority, whereas the Government believes the term implicitly means the convening authority in the specific case at issue. The lead opinion effectively reads the qualifier advocated by Appellant into the text of the rule. But in my view, while either proposed implicit qualifier is linguistically possible, the Government has the stronger argument about which qualifier is implied in R.C.M. 104(a)(1). Most of the Rules for Courts-Martial are implicitly limited in their application to the specific court-martial at issue. For example, when R.C.M. 802(c) states that “[n]o party may be prevented . . . from presenting evidence or from making any argument, objection, or motion at trial,” the fair meaning is that no party in the specific case at issue shall be prevented from presenting evidence or making argument at trial in the specific case at issue even though the words “in the specific case at issue” are not expressly stated. Without these implicit qualifiers, R.C.M. 802(c) would afford a party to any court- martial the right to present evidence and make argument in any other court-martial. Likewise, when R.C.M. 705(e) pro- vides that “no member of a court-martial shall be informed of the existence of a pretrial agreement,” the fair meaning is that no member in the specific case at issue shall be informed of a pretrial agreement in the specific case at issue even though the words “in the specific case at issue” are not ex- pressly stated. Without these implicit qualifiers, R.C.M. 705(e) would prevent a commander who had once served as a member of any court-martial from ever afterward seeing or negotiating a pretrial agreement in any other court-martial. Similarly, when R.C.M. 502(a)(2) provides that “[n]o member may use rank or position to influence another member,” the fair meaning is that no member in the specific case at issue

8 United States v. Bergdahl, No. 19-0406/AR Judge MAGGS, concurring in part and in the judgment

may use rank to influence another member in the specific case at issue even though the words “in the specific case at issue” are not expressly stated. Otherwise, R.C.M. 502(a)(2) would prevent a senior officer who has once served as a member in any court-martial from ever again giving orders to a junior officer who has ever served as a member in any court-martial. In each of these rules, the implied qualifiers likely were not stated expressly because they would be apparent to anyone without mentioning and because adding “in the specific case at issue” to every clause of every rule would make the Rules for Courts-Martial intolerably cumbersome to read. In the same way, when R.C.M. 104(a)(1) provides that “[n]o convening authority . . . may censure, reprimand, or ad- monish . . . any . . . military judge,” I believe that the fair meaning is that no convening authority in the specific case at issue may censure, reprimand, or admonish any military judge in the specific case at issue even though R.C.M. 104(a)(1) does not expressly state the words “in the specific case at is- sue.”6 These implicit qualifiers harmonize R.C.M. 104(a)(1) with the other rules discussed above (which are worded very similarly) and with the general principle that the Rules for Courts-Martial are implicitly limited in their application to the specific court-martial at issue. The implicit qualifiers also harmonize R.C.M. 104(a)(1) with Article 37(a), UCMJ, which all agree applies only to the convening authority who actually convened the specific court-martial at issue. See Scalia & Gar- ner, supra, at 252 (“[L]aws dealing with the same subject— being in pari materia (translated as ‘in a like matter’)— should if possible be interpreted harmoniously.”).7

6 A court-martial could have more than one convening authority if, for example, the original court-martial convening authority is re- assigned and successor takes over. See R.C.M. 103(6) (“ ‘Convening authority’ includes a commissioned officer in command for the time being and successors in command.”). 7 In Russello v. United States, the Supreme Court cited the fa- miliar and uncontroversial principle that a difference in the word- ing of two sections of “the same Act” presumably gives the two sec- tions different meanings. 464 U.S. 16, 23 (1983) (internal quotation marks omitted) (citation omitted). This principle, however, is not

9 United States v. Bergdahl, No. 19-0406/AR Judge MAGGS, concurring in part and in the judgment

This reading also strikes me as being much more plausible than the one asserted by Appellant. If “no convening author- ity” implicitly means no person empowered to act as a conven- ing authority, and is not implicitly limited to the convening authority in the specific case at issue, then R.C.M. 104(a)(1) would have an astonishingly broad scope. For instance, it would cover not just the President of the United States, but also every junior officer in any service stationed anywhere in the world who is designated as a summary court-martial con- vening authority. See Article 24(a), UCMJ, 10 U.S.C. § 824(a). While the President might have authority to promulgate a rule so much broader in scope than Article 37(a), UCMJ, it is difficult to believe that he would do so implicitly. For these reasons, between the two proposed interpretations of the term “convening authority,” the one proposed by the Government is objectively more reasonable. III. Conclusion Because of my disagreements with the lead opinion’s de- terminations with respect to both Senator McCain and Presi- dent Trump, I do not join Parts II.A. or II.B. of the lead opin- ion. While my conclusions above would suffice to decide this case if they had the support of the majority of the Court, they do not. I therefore join Part II.C. of the lead opinion based on the assumptions that, even if Appellant had shown some evi- dence that Senator McCain had violated Article 37(a), UCMJ, and even if R.C.M. 104(c) did apply to the President, the state- ments at issue would not, within the meaning of Boyce, have “place[d] an intolerable strain upon the public’s perception of the military justice system.” Boyce, 76 M.J. at 252.

apt when comparing the wording of a congressionally enacted stat- ute like Article 37(a), UCMJ, to the wording of a presidentially promulgated procedural rule like R.C.M. 104(a)(1), because the ar- ticle and rule are in different texts. Instead, the wording of R.C.M. 104(a)(1) should be compared to other similarly worded Rules for Courts-Martial, which as shown above generally contain an implied limitation restricting their application to the specific case at issue. Because R.C.M. 104(a)(1) differs little from those other rules, it pre- sumably also carries the same implied limitation.