Military Appellate Court: Presidential Comments Can Amount to Unlawful Command Influence

Military Appellate Court: Presidential Comments Can Amount to Unlawful Command Influence

Legal Sidebari
Military Appellate Court:
Presidential Comments Can Amount
to Unlawful Command Influence
November 2, 2020
In a set of divided opinions on August 27, the U.S Court of Appeals for the Armed Forces (CAAF)
rejected Sergeant Robert “Bowe” Bergdahl’s appeal in his desertion case, which he argued was invalid
due to unlawful command influence. However, CAAF found that the President’s remarks about an
ongoing court-martial trial can amount to unlawful command influence in violation of Art. 37 of the
Uniform Code of Military Justice (UCMJ). The court reasoned that the President is by statute a convening
authority for general courts-martial and is therefore subject to the Rules for Courts-Martial (R.C.M.) Rule
104(a)’s prohibition on unlawful command influence, which implements Art. 37 of the UCMJ. The court
also held that the late Senator John McCain’s actions as Chair of the Senate Armed Forces Committee
regarding a pending court-martial could have violated Art. 37 of the UCMJ because Senator McCain, as a
retired member of the Armed Forces, was a person subject to the UCMJ. However, under the facts of the
case, a CAAF majority held there was no apparent unlawful command influence, affirming the lower
court’s determination that appel ant Bergdahl was not entitled to relief.
This Legal Sidebar explains the prohibition against unlawful command influence in military courts,
describes the tests CAAF uses to decide whether unlawful command influence has occurred, and explains
CAAF’s decision in the Bergdahl appeal. For more information about military courts-martial, see this
CRS Report.
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Unlawful Command Influence
Congress enacted the UCMJ in 1950 in part to address a perception of unfairness in military justice due to
command control, as documented in a 1946 War Department study. Art. 37 of the UCMJ prohibits certain
conduct that could unfairly influence the outcome of a military trial. Some prohibitions apply to
commanders and convening authorities, while others cover al persons subject to the UCMJ. Convening
authorities (officials who designate a court-martial to decide a case) and commanding officers may not
“censure, reprimand, or admonish” any participant in a court-martial “with respect to the findings or
sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct
of the proceeding.” Nor may such officials “deter or attempt to deter a potential witness from
participating in the investigatory process or testifying at a court-martial.” No person subject to the UCMJ
may “attempt to coerce or, by any unauthorized means, attempt to influence the action of a court-
martial . . . in reaching the findings or sentence in any case, or the action of any convening, approving, or
reviewing authority or preliminary hearing officer with respect to such acts. . . .”
CAAF has recognized that two types of unlawful command influence can arise in the military justice
process: actual and apparent. Actual unlawful command influence occurs when “there is an improper
manipulation of the criminal justice process which negatively affects the fair handling and/or disposition
of a case.” To prove actual unlawful command influence, an accused must demonstrate
(a) facts, which if true, constitute unlawful command influence;
(b) the court-martial proceedings were unfair to the accused (i.e., the accused was prejudiced); and
(c) the unlawful command influence was the cause of that unfairness.
Military courts have also posited that “the appearance of unlawful command influence is as devastating to
the military justice system as the actual manipulation of any given trial.” Consequently, even if the
accused cannot demonstrate al of the above factors, he may argue that the government’s conduct
nonetheless raises questions serious enough to taint the public perception of fairness in the court-martial.
To demonstrate the appearance of unlawful command influence over a trial, the accused must demonstrate
(a) facts, which if true, constitute unlawful command influence; and
(b) this unlawful command influence placed an “intolerable strain” on the public’s perception of the
military justice system because “an objective, disinterested observer, fully informed of all the facts
and circumstances, would harbor a significant doubt about the fairness of the proceeding.”
Sergeant Bergdahl appealed his conviction based on the latter form of unlawful command influence. He
therefore had the initial burden to put forth “some evidence” of conduct that would constitute unlawful
command influence. To prevail, the government had to prove beyond a reasonable doubt that the conduct
did not occur or that it did not amount to unlawful command influence. If unable to do so, the government
could prevail by proving beyond a reasonable doubt that a fully informed disinterested observer would
not harbor a significant doubt about the fairness of Sergeant Bergdahl’s court-martial.
The Facts of the Case
On June 9, 2009, Sergeant Bergdahl abandoned his combat observation post in Afghanistan with the
intent of walking twenty miles through hostile territory to an American forward operating base, where he
intended to discuss with the commanding general what he perceived to be poor leadership at his platoon
that endangered its troops. His plan, which the military attributed in part to mental il ness, quickly went
awry when within one day the Taliban captured him. Shortly after Bergdahl’s disappearance, the military
launched a search operation on his behalf, during which several soldiers were injured, some severely. The
Taliban held him in deplorable conditions for five years, during which time he was not al eged to have

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collaborated with the enemy, and he made numerous escape attempts. The Obama Administration
negotiated an exchange of five high-level Taliban prisoners from Guantanamo for Sergeant Bergdahl. He
then returned to the United States to face charges for desertion and misbehavior before the enemy. He
eventual y pleaded guilty and received a sentence of dishonorable discharge and partial forfeiture of pay,
but no prison time.
The Bergdahl-Taliban prisoner swap engendered criticism from some Members of Congress, in particular
over concern that the President had failed to notify Congress beforehand despite a statutory mandate.
Chairman McCain threatened to hold a hearing if Sergeant Bergdahl did not receive adequate punishment.
The controversy also spil ed into the 2016 presidential election while Sergeant Bergdahl’s case was in the
referral process. Then-candidate Donald J. Trump spoke at ral ies about the case, referring to Sergeant
Bergdahl as a “dirty, rotten, traitor” and implying that he should be “shot” as a “deserter.” After the
election and while Sergeant Bergdahl’s sentence was under consideration, President Trump responded to
a reporter’s question by stating:
Well, I can’t comment on Bowe Bergdahl because he’s—as you know, they’re—I guess he’s doing
something today, as we know. And he’s also—they’re setting up sentencing, so I’m not going to
comment on him. But I think people have heard my comments in the past.
Sergeant Bergdahl argued at his court-martial and on appeal that Senator McCain’s and President
Trump’s conduct created the appearance that his trial and sentence were unfair.
Can a Senator or the President Commit Unlawful Command Influence?
As a threshold matter, CAAF had to determine whether Senator McCain and President Trump were
subject to the relevant proscriptions against unlawful command influence. CAAF found that Senator
McCain, as a U.S. Navy retiree, was subject to the UCMJ and covered by the plain language of Art. 37 of
the UCMJ. It may be worth noting that this holding rested exclusively on Senator McCain’s status as a
retired servicemember. Although his status as Senator or Chairman of the Armed Services Committee had
no bearing on his amenability to Art. 37, it was relevant to the analysis of whether his conduct could have
the appearance of unfairly influencing a decision to court-martial or the trial process itself. Members of
Congress who are not subject to the UCMJ cannot commit unlawful command influence, despite their
possible positions of influence over the military justice system.
With respect to President Trump, CAAF interpreted the Art. 37 reference to a convening authority, as it
was then codified, as limited to the individual who actually convened the specific court-martial in
question. Art. 37 stated at the time that “[n]o authority convening a general, special, or summary court-
martial, nor any other commanding officer” may engage in the prohibited conduct with respect to “the
court-martial.” However, different wording in the Manual for Courts-Martial in R.C.M. 104(a) applies
more broadly. By contrast, it states that “[n]o convening authority or commander may” engage in relevant
conduct with respect to “a court-martial.” Over one dissent, CAAF read the R.C.M. language as applying
to anyone authorized to convene a court-martial, including the President, and with respect to any court-
martial. CAAF noted that the R.C.M. is more protective than the statute, but that this is entirely
permissible under the relevant provision of the UCMJ for prescribing regulations. Congress has since
amended Art. 37 to read similarly to R.C.M. 104.
“Some Evidence”
CAAF held that Sergeant Bergdahl satisfied his burden to submit “some evidence” that unlawful
command influence had occurred. Senator McCain’s position as Chair of the Armed Services Committee,
CAAF found, gave him “unique sway” over the military, noting that he could delay or block promotions
and assignments of senior military personnel, presumably including those with the responsibility to
determine whether and how to administer military justice. CAAF might have reached a different

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conclusion if Senator McCain’s threat to hold hearings had involved conduct of ordinary congressional
oversight due to concerns about military justice in general. But CAAF emphasized that the remarks were
“especial y problematic” because they concerned Bergdahl’s specific pending court-martial after the
preliminary hearing officer had recommended a special court-martial and before the convening authority
had made a decision. In contrast to the more severe general court-martial, a special court-martial is a
streamlined trial available for misdemeanor-level charges that is not empowered to adjudge severe
punishments, such as a dishonorable discharge. Consequently, Senator McCain’s remarks could appear to
“coerce . . . or influence” the outcome of the appel ant’s court-martial. One judge disagreed with this
holding based on the view that Senator McCain’s remarks were not intended to coerce anyone as that
term is general y understood, nor would holding hearings be an unauthorized means to influence the
outcome.
CAAF also found some evidence that President Trump’s remarks could amount to unlawful command
influence. Although President Trump made most of his “inaccurate and inflammatory” remarks about
Sergeant Bergdahl while he was a candidate and thus not subject to the UCMJ, CAAF viewed his later
reference to those remarks while President to be a ratification of them that could appear to “censure or
admonish” the court-martial during the sentencing phase. Similarly, a subsequent presidential tweet
referring to the outcome of Sergeant Bergdahl’s court-martial as a “complete and total disgrace to our
Country and to our Military,” according to CAAF, appeared to censure the court-martial’s sentencing of
Bergdahl and could have influenced subsequent actions on review.
Views of an Objective and Fully Informed Person
Following its test for apparent unlawful command influence, CAAF next addressed whether the conduct
described above placed an “intolerable strain on the military justice system.” It concluded that a
hypothetical disinterested and fully informed person would not question the fairness of the trial because,
in essence, she would expect that a person guilty of the crimes to which Sergeant Bergdahl pleaded guilty
were serious enough to result in his court-martial and punishment, with or without the conduct of Senator
McCain and President Trump. At heart, CAAF seems to have concluded that the disinterested observer
would not suspect that the remarks prejudiced the accused.
The following facts were among those imputed to the disinterested observer:
 Desertion and misbehavior before the enemy are serious offenses that can result in severe
punishment.
 The convening authority cal ed Senator McCain’s statement “inappropriate” and denied it
had any impact on his decision to subject Sergeant Bergdahl to trial by general court-
martial instead of a special court-martial as recommended by the preliminary hearing
officer.
 There is no requirement that a convening authority adopt the recommendation of the Art.
32 preliminary hearing officer.
 The preliminary hearing officer who had recommended a less severe special court-martial
did not have al of the facts regarding the number and nature of casualties that occurred
during the search for the missing Sergeant Bergdahl.
 In contrast to the preliminary hearing officer, the convening authority, who at the time
served as Commanding General of the United States Army Forces Command
(FORSCOM), would have had ready access to information about casualties.
 As Commanding General of FORSCOM, the convening authority would have understood
that convening a special court-martial to try Sergeant Bergdahl would have been
“devastating to military morale.”

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 Sergeant Bergdahl “chose to plead guilty to the offenses of desertion with intent to shirk
hazardous duty and misbehavior before the enemy,” admitting the charges accurately
described what he had done.
 Mitigating evidence, including Sergeant Bergdahl’s mental state, mistreatment at the
hands of the enemy, and his provision of substantial intel igence to the Army after his
return, was insufficient to overcome the court’s conviction that the severity of the
misconduct rather than political interference influenced the outcome of the trial.
 Sergeant Bergdahl requested a dishonorable discharge and received no prison time.
Consequently, CAAF concluded:
[A]n objective, 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 testament to the strength and independence of military
justice system. Therefore, assertions of an appearance of unlawful command influence are once
again unavailing.
Similarly, CAAF concluded that Sergeant Bergdahl’s post-trial treatment and appeal at the Army Court of
Criminal Appeals was, based on similar factors, untainted by the appearance of unlawful command
influence.
Two judges dissented from this holding. They would have imputed to the fictional observer “some basic
understanding of the importance of the concept of unlawful influence and its potential y corrosive effect
on the military justice system.” In their view, such an observer “would believe that—whether or not the
result of Appel ant’s trial were foreordained—the comments of Senator McCain and the Commander in
Chief corrupted the trial process beyond repair.” Moreover, as they saw it,
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.
Accordingly, they would have dismissed the charges with prejudice.
CAAF also denied Sergeant Bergdahl’s motion for reconsideration without prejudice to his right to file a
writ of error coram nobis, which appears to be based on the argument that the military judge in the
original court-martial was not impartial because during the trial he was seeking employment with the
Justice Department and used his opinion in the case as a writing sample.

Author Information

Jennifer K. Elsea

Legislative Attorney

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