Bowe Bergdahl desertion sentence tossed by judge citing Trump comments

WASHINGTON — A federal judge has vacated the sentence handed to former Army Sgt. Bowe Bergdahl, who was captured by the Taliban after deserting his Afghanistan command post in 2009 — saying the military jurist who heard the case may have been influenced by former President Donald Trump’s disparaging remarks about the AWOL soldier.

US District Judge Reggie Walton ruled Tuesday that Bergdahl, who pleaded guilty in October 2017 to charges of desertion and misbehavior before the enemy, would have his sentence overturned due to his court-martial judge’s failure to disclose a possible conflict of interest.

That judge, Army Col. Jeffery Nance, sentenced Bergdahl to be dishonorably discharged and fined $1,000 a month for 10 months.

The now-overturned sentence attracted criticism for not including prison time, given that Bergdahl’s capture led to the death of a soldier and injuries to four others who searched for him.

Bergdahl’s decision to plead guilty came after Nance told the court during voir dire that he had no reason to recuse himself from the case, adding that he was “not going anywhere but the retirement pastures” upon leaving the military, his attorneys argued.

But what Nance didn’t reveal is that he had applied to become a federal immigration judge the same month Bergdahl entered his plea.

Bergdahl’s attorneys only learned of the application years later during the appeal process, leading them to challenge Nance’s ruling in civil court. They argued the colonel had reason to appease Trump’s distaste for Bergdahl to better Nance’s chances at receiving a judicial appointment.

The argument was based on comments Trump, now 77, made during his 2016 presidential campaign when he criticized then-President Barack Obama’s decision to return Bergdahl to the US in exchange for the release of five Taliban members held at Guantanamo Bay.

In his criticisms, Trump called Bergdahl “‘the worst,’ ‘no good,’ a ‘bum,’ a ‘wack job,’ a ‘piece of garbage,’ a ‘son of a bitch’ and ‘a very bad person who killed six people,'” the soldier’s attorneys wrote in court documents.

“Former President Donald Trump further stated that ‘deserters used to be shot,’ implying and at times saying outright that [Bergdahl] deserved the death penalty, and in the context of these types of remarks, pantomimed executions by rifle and pistol shot, complete with sounds effects,” they wrote.

Walton agreed with Bergdahl’s argument in the opinion issued Wednesday, vacating “all orders and rulings issued by [Nance] … as of October 16, 2017, and thereafter — which was the date when that military judge submitted his employment application for an immigration judge position.”

“This case presents a unique situation where the military judge might be inclined to appeal to the president’s expressed interest in the plaintiff’s conviction and punishment when applying for the immigration judge position, or at least that being the perception a reasonable member of the public would have,” Walton wrote in his decision.

“The Court concludes that the other circumstances of this case further ‘undermine [the judge’s] apparent neutrality.'”