A week ago I would have bet cash money that O would spring him. Remember that triumphant Rose Garden press conference with Bergdahl’s parents announcing that he was coming home? Obama took a relentless beating from his critics over that after stories came out that Bergdahl had deserted, that U.S. soldiers might have died while searching for him, and that the “Taliban Five” who were exchanged for him were a serious threat to return to war. Pardoning him now would have amounted to doubling down on Bergdahl’s good intentions and, by extension, Obama’s own good judgment in working so hard to secure his release, which would have been very much in character for him. And as Jazz noted last month, it also would have spared the military from a potentially difficult court-martial of a high-profile deserter who may have been afflicted by a mental disorder when he went missing.
All of that was pointing towards a pardon. Result: No pardon.
Army Sgt. Bowe Bergdahl, the U.S. soldier who faces court-martial for desertion after walking away from his base in Afghanistan and spending five years in militant captivity, sought and was denied a presidential pardon by former President Barack Obama before he left office, according to Bergdahl’s attorney Eugene Fidell.
The effort was disclosed Friday after Berghdahl’s legal team filed a new motion to dismiss the Army’s case against their client, citing past harsh rhetoric against Bergdahl by newly sworn-in President Trump…
The trade was decried by critics, even after it was disclosed that military physicians determined Bergdahl suffered from a mental disorder that causes psychotic episodes. Obama defended the deal, saying that the United States does not leave soldiers behind “regardless of the circumstances.” Fidell said that Bergdahl will be grateful to Obama “for the rest of time” and believes that he saved his life.
Why’d Obama stiff him? Probably he felt it’d be unfair to preempt the court-martial by releasing Bergdahl before he’d faced justice. His argument for commuting Chelsea Manning’s sentence was that seven years was plenty for a crime of that nature; Bergdahl, by contrast, hasn’t been tried yet. Obama’s just deferring to the legal process — except it’s unlike him to defer to anyone when it’s within his power to take action. It’s possible, I guess, that he resents all the political trouble Bergdahl has caused him and figures that leaving him to a military tribunal is just desserts. There’s still a chance that he’ll get off or receive a light sentence, after all. O may have felt that he’d done his good deed by bringing Bergdahl home and wasn’t about to lose any more “legacy” points over him. Still, though — surprising.
There’s one other wrinkle that makes his refusal to grant a pardon unexpected. Trump has been vocal, even by Trump standards, in describing Bergdahl as a “traitor” even though he’s not charged with treason. Precisely because he’s been so critical of Bergdahl, Bergdahl’s lawyer filed a motion to dismiss the charges against him today upon Trump becoming president on the theory that he can no longer get a fair trial.
Mr. Fidell contends that the effect of Mr. Trump’s statements violates a prohibition on “unlawful command influence,” a rule that is a bedrock of military justice. It prohibits commanders — or as one military appeals court put it, anyone with the “mantle of command authority” — from doing anything to influence decision making about a military defendant’s fate.
In Sergeant Berdahl’s case, anyone who could play a role in deciding his fate, including the military officers who will serve as judge and jurors, now ultimately reports to President Trump. And because of Mr. Trump’s well-known and unambiguous feelings about Sergeant Bergdahl, those service members cannot be impartial in deciding his guilt or innocence, contends Mr. Fidell, who teaches military justice at Yale Law School.
“President Trump transformed his rallies into a televised traveling lynch mob,” Fidell noted in his motion. How can the court-martial be fair, he wonders, when it’s under so much pressure to make the new commander-in-chief happy? I can imagine that logic appealing to Obama a lot: Because Trump is such a demagogue, the argument would go, the wise and judicious departing president should show his magnanimity by freeing the prisoner. Drawing a contrast with Trump that presents Obama as the “adult in the room” would be right in O’s wheelhouse psychologically. And still — no pardon. I never would have guessed.
Here’s a video exhibit submitted today by Bergdahl’s defense. Fully 28 minutes of the new president inveighing against him.