Former Army Sgt. Robert “Bowe” Bergdahl has filed a petition in federal court seeking to have his military conviction and sentence expunged based on arguments of unlawful command influence by former President Donald Trump and new information about the judge who presided over his court-martial.
Bergdahl’s attorneys filed paperwork Wednesday in U.S. District Court in Washington, D.C., seeking review of the case, alleging that the military court system failed to recognize the impact of comments made by Trump and the late Sen. John McCain, as well as the presiding judge’s failure to disclose information about his employment plans after retirement.
Judge Jeffrey Nance, then an Army colonel, did not reveal that he had applied for a job as an immigration judge at the Justice Department — a lapse that, given Trump’s interest in both the Bergdahl case and immigration issues, should have excluded him from the court-martial, the attorneys claim in court documents.
Bergdahl pleaded guilty in 2017 to desertion and misbehavior before the enemy after leaving his post in Afghanistan in June 2009 and setting off a massive search-and-rescue operation that involved thousands of U.S. troops.
He was captured by the Taliban and held as a prisoner of war for more than four years before he was released in 2014 in a prisoner swap for five members of the Taliban who had been held at the U.S. detention facility at Guantanamo Bay, Cuba.
Bergdahl later said he left his post to draw senior Army leaders’ attention to problems he saw in his unit, 1st Battalion, 501st Regiment. Once at home, he “provided significant intelligence to the Army … a goldmine that reshaped the Army’s understanding of hostage-taking in the region,” according to his attorneys.
But he also was vilified as a traitor who deserted his post and was blamed for the injuries U.S. troops suffered during the search, including Army National Guard Master Sgt. Mark Allen, who died 10 years after his unit was ambushed and he was shot in the head.
Bergdahl filed a guilty plea and was sentenced to a dishonorable discharge, reduction to the rank of private and forfeiture of $10,000 in pay.
On appeal, his attorneys argued that remarks by Trump and McCain constituted “unlawful command influence” and may have unfairly swayed the outcome of the court-martial.
As a presidential candidate, Trump described Bergdahl as a “dirty rotten traitor” and suggested he be executed by firing squad or thrown out of an airplane over Afghanistan without a parachute. After he became president, Trump made several references to those comments, while McCain threatened congressional hearings if Bergdahl received no punishment.
But in a narrow 3-2 decision last August, judges on the Court of Appeals for the Armed Forces, or CAAF, upheld Bergdahl’s conviction, saying the comments did not invalidate his prosecution. Penning the decision, Judge Kevin Ohlson said Bergdahl’s decision to plead guilty played heavily in the case.
“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,” Ohlson wrote.
Still, CAAF’s chief judge, Scott Stucky, and a second judge, John E. Sparks, said they favored dismissal in their partial dissent.
“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,” Sparks wrote. “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.”
Nance’s alleged failure to disclose that he had applied for a job as a federal immigration judge is a new twist to the case, introduced in September. During the court-martial, Nance told Bergdahl’s attorneys that he planned to retire from the military and that comments from the commander in chief would have no effect on his decision.
“I have no hope or ambition beyond my current rank. … I am completely unaffected by any opinions President Trump may have about Sgt. Bergdahl,” Nance said, according to court documents.
But according to the court filing, Nance called attention to his role as presiding judge in the complex case in his job application. He was appointed as an immigration judge at the Stewart Immigration Court in Lumpkin, Georgia, in September 2018, according to a Justice Department news release.
Bergdahl’s attorney, Eugene Fidell, declined to comment on the most recent filing.
The Justice Department did not respond to a request for comment from Nance on the allegations.
The government has 60 days to file a response to the filing.
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