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 Matthew 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); Lieutenant 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 dissenting 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, Appellant, 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

2

the state of his mental health. See infra Part II.C. Specifically, Appellant erroneously came to believe that poor leadership in his battalion put his platoon at risk of being sent on a 

suicide mission. In order to report his concern, Appellant decided 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 effort. 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, exchanged 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 discharge, 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 Senate 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 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.” 

United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (internal quotation marks omitted) (quoting United States v. 

Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)). Appellant asks this 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

3

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 accountable at a general court-martial for his offenses (to which he voluntarily pleaded guilty); and (2) Appellant would not have received the dishonorable discharge he himself subsequently

requested. 

Thus, simply stated, it was the totality of the circumstances 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. Accordingly, we hold that there was no appearance of unlawful command 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).
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

4

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 command 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 adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may 

attempt to coerce or, by any unauthorized means, influence the action of a court-martial . . . or any member 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 respect to the findings or sentence adjudged by the 

court-martial . . . , or with respect to any other exercise 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 subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a courtmartial or any other military tribunal or any member thereof, in reaching the findings or sentence in 

any case or the action of any convening, approving, 

or reviewing authority with respect to such authority’s judicial acts.

There are two types of unlawful command influence that 

may arise in the military justice system: actual unlawful command 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.
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

5

This Court reviews allegations of unlawful command influence 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 command influence occurred. Boyce, 76 M.J. at 249 (internal quotation 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 reasonable 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 unlawful 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 (alteration 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 Dictionary 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 acceptable.”); 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.”).
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

6

II. Analysis

A. Ability to Commit Unlawful Command Influence

As a threshold matter, based squarely on the plain language 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 committing 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 authority . . . may censure, reprimand, or admonish a court-martial . . . .” 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 . . . .”
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

7

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 language into a rule that is anything but ambiguous is the antithesis 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, Fixing 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-discusses-statutory-interpretation (“We’re all textualists now.”).

Indeed, the conclusion that the words of R.C.M. 104(a)(1) necessarily 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).
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

8

to omit”); Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (“If uncertainty 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) provides 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 presenting “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 referral 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 delay or block assignments or promotions of senior military personnel. 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 congressional oversight of the armed forces regarding military 

justice issues generally, or the disposition of certain categories 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 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

9

to his liking. This situation is altogether different from standard 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 (internal quotation marks omitted) (citations omitted).

Senator McCain’s comment was especially problematic because of the timing of his remarks. He made them after learning that the preliminary hearing officer in Appellant’s case 

recommended that the charges be referred to a special courtmartial 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 outcome 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) (second alteration in original) (italics removed). However, this is a conclusion 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 command influence, and a de novo review of the facts as applied to the 

apparent unlawful command influence demonstrates that Appellant has met his initial low burden of presenting “some evidence.” 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

10

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 doing 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 Bergdahl. 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 devastated, ruined, destroyed. And they were killed going 

out to try and bring him back, and they lost five people, probably six, by the way. But at least five people. . . . 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 telling you. I’m telling you.
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

11

Def. Appellate Ex., at 45.

To begin with, “[t]he term ‘traitor’ is particularly odious, 

particularly in the military community.” United States v. Barrazamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003). And importantly, the record does not support the contention that Appellant 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 elsewhere, 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 enemy, 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 captivity Appellant complied with the Code of Conduct for Members 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 escape, . . . 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. Appellate Ex., at 28; “[H]e was a deserter 100% it’s not like the old 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

12

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 candidate, 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, neither Article 37, UCMJ, nor R.C.M. 104(a)(1), applied to comments 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 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.

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

Opinion of the Court

13

be that in spite of knowing that he should not comment 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 traitor 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-martial . . . 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 proceedings.” R.C.M. 104(a)(1).

Similarly, President Trump later posted to the social networking 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 Military.” Donald J. Trump (@realDonaldTrump), Twitter (Nov. 

3, 2017, 11:54 AM). This statement appeared both to “censure” the court-martial with respect to the sentence, and had

the potential to appear to influence other subsequent “functions 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 influence. 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 criminal matter pose a grave risk to the goal of ensuring that justice 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—despite the commission of heinous crimes—if the actual or apparent unlawful command influence results in the dismissal 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

14

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 language 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 unlawful command influence).

In this particular case, however, we conclude that a finding 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 cumulatively.

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

Opinion of the Court

15

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 during the investigation and preferral stages of this case.

In regard to the next stage of the court-martial proceeding, Appellant emphatically—and understandably—underscores the fact that although the Article 32, UCMJ, preliminary hearing officer recommended that this case be referred 

to a special court-martial not empowered to adjudge a badconduct discharge—which would have precluded the dishonorable discharge that was actually imposed here—the 

GCMCA in this case, General (GEN) Robert B. Abrams, ultimately referred Appellant’s case to a general court-martial 

that was empowered not only to adjudge a dishonorable discharge 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, Commissions, and Committees, Procedures for Administrative Investigations 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 recommended 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 imprisonment be imposed on Appellant. Once again, MG Dahl’s recommendation was followed. 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

16

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 affidavit 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 denunciation of and disassociation from these comments. Although 

these two points are not dispositive of the issue in a case involving 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 conjunction with the additional supporting facts discussed below.

Next, there is no requirement that a convening authority 

adopt the recommendations of an Article 32, UCMJ, preliminary hearing officer. See R.C.M. 601. Indeed, any observer of 

the military justice system would realize that it is not uncommon for a GCMCA to refer a case to a court-martial in a manner 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, disinterested 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 courtmartial 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 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

17

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 extensive 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 different 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 serious injuries to his right hand, continues to experience physical pain, and has not fully regained the use of his hand despite surgery. Additionally, during the same mission, Master 

 

12 DUSTWUN is used “when the responsible commander suspects the member [of the armed forces] may be a casualty whose 

absence is involuntary, but does not feel sufficient evidence currently exists to make a definite determination of missing or deceased.” United States Army Human Resources Command, Army 

Casualty and Mortuary Affairs Frequently Asked Questions (Mar. 

23, 2020), https://www.hrc.army.mil/content/Army%20Casualty%20and%20Mortuary%20Affairs%20Frequently%20Asked%20Questions (last visited Aug. 19, 2020).
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

18

Sergeant (MSG) Mark Allen was shot through the head. Following his injury, MSG Allen was in a “vegetative state,” severely 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 removal of both his frontal lobes, MSG Allen continued to experience 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 positions where he would be privy to such information. After 

Appellant’s desertion but before his rescue, GEN Abrams became the Commanding General of the Third Infantry Division. He deployed to Afghanistan in that capacity where he 

received briefings concerning the Army’s efforts to rescue Appellant. Later, GEN Abrams served as the Senior Military Assistant to the Secretary of Defense, during which time he was 

present for briefings regarding Appellant, was aware of negotiations taking place to effect Appellant’s return from Taliban 

captivity, and provided daily reports to the Secretary of Defense 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 command posts in the military. Thus, an objective and disinterested 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-whosearched-for-bowe-bergdahl/index.html.

14 The preliminary hearing officer also said that any such evidence of casualties needed to be served on the defense. And yet, 

there is no evidence that the Government did so. However, Appellant has not raised this issue before this Court.
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

19

this casualty information at the time he decided to send Appellant’s case to a general court-martial rather than to the 

more limited special court-martial recommended by the Article 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 responsible for combat readiness of all . . . Army . . . 

forces . . . .”). An indispensable element of unit cohesion, readiness, 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 informed 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 casualties at the time he referred the charges to a general court-martial, 

he was aware of the following: (1) United States Armed Forces conducted a massive, long-term manhunt for Appellant in hostile territory 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 mandate 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 empowering 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.
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

20

72 M.J. at 423), would recognize that if GEN Abrams had chosen 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 Appellant 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 servicemembers were injured or were likely injured in the course 

of the military’s efforts to rescue Appellant from the consequences of his own misconduct. Therefore, a hypothetical observer would “[not] harbor a significant doubt about the fairness 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 proceedings, it cannot be emphasized strongly enough that Appellant 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 sitting as a general court-martial convicted Appellant of one specification of desertion with intent to shirk hazardous duty and one specification 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 desertion—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. 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

21

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 military 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 courtmartial proceedings can prevail.

In terms of the sentencing stage of these proceedings, Appellant presented significant mitigation evidence. For example, he produced evidence that prior to his Army service, he

served in the United States Coast Guard but soon was separated, 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 Appellant 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 testified, at the time of the offenses in 2009 Appellant likely suffered 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 disease or defect, he nevertheless was able to “appreciate the nature 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 Bergdahl left [his post] with good, albeit misguided, motives.” 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

22

Additionally, although it was a tragic consequence of his 

own decision to abandon his post, Appellant presented compelling 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 captivity, 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, Appellant’s hands and feet were shackled to a metal bedframe, 

causing the development of bedsores and resulting in such severe 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—including on the bottom—and was elevated about eight inches above 

the ground. The size and construction of the cage made it “excruciatingly painful” to stand, and “impossible” to move 

around. Appellant was left to “rot inside that cage.” This torture exacerbated Appellant’s preexisting mental conditions. 

As a result, he requires “more complicated” and “more extended” medical treatment for his mental health problems. 

However, Appellant is precluded from accessing such healthcare 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 significant 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 Afghanistan. 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 Senator McCain or President Trump and was instead based solely

on the serious offenses to which Appellant pleaded guilty and 
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

23

on the facts established during the Government’s case in aggravation. Indeed, it is telling that at his sentencing hearing 

after his guilty plea, and fully aware of his own case in mitigation, Appellant specifically recognized that he was deserving 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 principle 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 discharge and that he wanted the military judge to impose that 

specific punishment upon him. Accordingly, it is difficult indeed 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 sensational 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 receive 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 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 the military justice 

system. Therefore, assertions of an appearance of unlawful 

command influence are once again unavailing.
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

24

And finally, in terms of the clemency and appellate stages 

of this case, we reiterate the following critical points: Appellant pleaded guilty to deserting his unit with intent to shirk 

hazardous duty and of engaging in misbehavior before the enemy; 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. detention facility in Guantanamo Bay, Cuba, in order to secure Appellant’s release; and yet the military judge imposed as a sentence 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 Appellant was a foregone conclusion unaffected by any public 

comments made about the case. We further observe that Appellant’s post-trial matters submitted to the convening authority were “absent of any formal request for clemency in the 

form of a sentence reduction.” Bergdahl, 79 M.J. at 526. Similarly, 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).
United States v. Bergdahl, No. 19-0406/AR

Opinion of the Court

25

“disturbing,”

18 “disappointing,”19 “inaccurate,”20 “inappropriate,”

21 and “ill-advised”22 they were—did not place an intolerable 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-martial 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).

21 R. of Trial, United States v. Bergdahl, vol. XXXVI, 579 (testimony of GEN Robert Abrams).

22 Bergdahl, 79 M.J. at 522 (internal quotation marks omitted).
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 superbly argued and has brought forth the finest efforts of my 

colleagues, both in the majority opinion and in the concurrences. 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 unlawful 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 correctly points out. But conditioning the hearings on Appellant’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 institutional consequences of adjudging or approving such a 

sentence. 

President Trump’s vicious and demeaning remarks about 

the treatment he believed Appellant should receive were relayed 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 president, and particularly this one, the government has a unique 

burden to bear in rebutting the appearance of unlawful influence. It has not done so. That being the case, I agree with 

Judge Sparks: the comments of Senator McCain and the President 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

2

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

Judge SPARKS, concurring in part and dissenting in part

3

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

Judge SPARKS, concurring in part and dissenting in part

4

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

Judge SPARKS, concurring in part and dissenting in part

5

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

Judge SPARKS, concurring in part and dissenting in part

6

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

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 command influence unless three conditions are met. The first condition 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 second 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 concludes that Appellant is not entitled to relief.

My views are different, but I reach the same ultimate conclusion. 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 otherwise 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 question, the second sentence of this article read as follows:

No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the 

action of a court-martial or any other military tribunal 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

2

or sentence in any case, or the action of any convening, 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 Senator 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 evidence” 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 statutory 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 another’s property.” Black’s Law Dictionary (11th ed. 2019) (entries for “coerce” and “threat”). Definitions from other dictionaries 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 authority’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”).
United States v. Bergdahl, No. 19-0406/AR

Judge MAGGS, concurring in part and in the judgment

3

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 unauthorized means [to] influence the action” of a convening authority 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 Appellant receives no punishment was “some evidence” of both 

(a) an attempt “to influence the action” of the convening authority, 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 enumerated 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 administration of existing laws as well as proposed or 

possibly needed statutes. It includes surveys of defects 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, inefficiency 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 conditions which the legislation is intended to affect or change.’ ”

(second alteration in original) (quoting McGrain v. Daugherty, 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-
United States v. Bergdahl, No. 19-0406/AR

Judge MAGGS, concurring in part and in the judgment

4

tion.”). The Supreme Court further has recognized that Congress 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 related to, and in furtherance of, a legitimate task of the Congress.” 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 Supreme Court has declared that Congress’s investigative powers are limited to legislative concerns, explaining: “Congress 

[is not] a law enforcement or trial agency.” Id. But the Supreme 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 context involved is discussed in United States v. Calley, 46 C.M.R. 

1131, 1138 (A.C.M.R. 1973).
United States v. Bergdahl, No. 19-0406/AR

Judge MAGGS, concurring in part and in the judgment

5

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 violation 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 Services 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 legislator in asking for money from constituents is a question for the 

trier of fact).
United States v. Bergdahl, No. 19-0406/AR

Judge MAGGS, concurring in part and in the judgment

6

uncover malfeasance or malfeasance by public officials 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 certainly hold hearings, gather information and draft 

and submit changes to the UCMJ to the [C]ongress 

for vote. However, such changes would be: 1) Prospective and 2) Not tied to or effecting [sic] a particular case that has already been disposed of. The 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.

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 proceedings. Accordingly, based on the absence of findings of fact necessary 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 occurred.” 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 assumed 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 convening 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 unlike 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.
United States v. Bergdahl, No. 19-0406/AR

Judge MAGGS, concurring in part and in the judgment

7

nation in Part II.A.2 that R.C.M. 104(a)(1) applied to President 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 sentence 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. Appellant contends that the term includes President Trump because he has the power to convene a general court-martial. 

The Government argues that the term includes only the person 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 answers this question about the meaning of “convening authority” 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 President 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 anyone 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 courtmartial. 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 irrelevant because President Trump did not convene this courtmartial, even though he had the power to do so.

In my view, the answer to the disputed issue lies in recognizing the important “principle that a text does include not 

only what is express but also what is implicit.” Antonin Scalia 
United States v. Bergdahl, No. 19-0406/AR

Judge MAGGS, concurring in part and in the judgment

8

& 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 “convening 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 courtmartial the right to present evidence and make argument in 

any other court-martial. Likewise, when R.C.M. 705(e) provides 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 expressly 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
United States v. Bergdahl, No. 19-0406/AR

Judge MAGGS, concurring in part and in the judgment

9

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 admonish . . . 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 issue.”

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 & Garner, 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 reassigned 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 familiar and uncontroversial principle that a difference in the wording of two sections of “the same Act” presumably gives the two sections different meanings. 464 U.S. 16, 23 (1983) (internal quotation 

marks omitted) (citation omitted). This principle, however, is not 
United States v. Bergdahl, No. 19-0406/AR

Judge MAGGS, concurring in part and in the judgment

10

This reading also strikes me as being much more plausible 

than the one asserted by Appellant. If “no convening authority” implicitly means no person empowered to act as a convening 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 convening 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 determinations with respect to both Senator McCain and President Trump, I do not join Parts II.A. or II.B. of the lead opinion. 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 evidence that Senator McCain had violated Article 37(a), UCMJ,

and even if R.C.M. 104(c) did apply to the President, the statements 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 statute like Article 37(a), UCMJ, to the wording of a presidentially 

promulgated procedural rule like R.C.M. 104(a)(1), because the article 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 presumably also carries the same implied limitation.