His client received no jail time but he did get a dishonorable discharge, which means he loses all military benefits. If in fact Bergdahl has some sort of mental disorder that requires treatment, losing those benefits is a meaningful (although still far too lenient) punishment. Eugene Fidell’s solution: Appeal, and claim that all charges should be dismissed because Trump’s endless grandstanding about giving him the death penalty prejudiced the case incurably. It’s worth noting that Fidell has been making the argument for many months that Trump’s comments have made it impossible for Bergdahl to get a fair hearing, even filing a motion on Inauguration Day replete with a video highlight reel of candidate Trump talking about Bergdahl on the stump.
I wonder if there are attorneys at the DOJ and in the southern Manhattan U.S. Attorney’s office who are quietly hoping that Bergdahl wins his appeal, if only to teach Trump a harsh lesson about keeping quiet about defendants from now on. They’ve got the same problem with POTUS shooting off his mouth about capital punishment for Saipov, the NYC jihadi. Their strategy for now: Try to ignore him and encourage the court to do so too.
The whipsaw declarations in less than 24 hours suggested major policy swings on national security matters of life and death, but the Justice Department appears to increasingly be doing the once-unthinkable: tuning out the president of the United States…
In a number of instances, Justice Department lawyers have tried to distance themselves from Trump’s pronouncements. In arguments over the administration’s various travel bans, they gave argued that comments by the president and his advisers should not be considered because, in the department’s view, the courts should not look beyond official statements and the order itself to determine its purpose…
In a lawsuit over the administration’s attempt to yank funding from “sanctuary cities,’’ Justice Department lawyers argued that even the president’s executive order isn’t a new policy but rather a type of “bully pulpit’’ exhortation meant to highlight a new approach to immigration enforcement.
Trump’s tweets about Saipov plus his musing yesterday about how frustrating it was that he can’t order the DOJ and FBI to prosecute Hillary Clinton have Trump critics wringing their hands about the erosion of norms. To take just two examples, David Frum and Obama alumnus Tommy Vietor:
President Trump is changing us. Had any predecessor said the things about FBI Trump said this AM, the country would have been convulsed.
— David Frum (@davidfrum) November 3, 2017
If the press uncovered secret conversations between Trump and DOJ where he pushed the FBI to investigate Hillary, it would be a massive scandal. Watergate-level. But when he tweets it repeatedly, it gets brushed off.
— Tommy Vietor (@TVietor08) November 3, 2017
There’s truth to both points. It’ll certainly be easier for Trump’s successors to cross the line in trying to influence the Justice Department for political reasons and secret conversations about prosecuting Hillary would be big news. I wouldn’t underestimate how much of the public views Trump as fundamentally abnormal, though, and is unlikely to give a more polished successor the same leeway on behavior that he has. The reason a secret conversation about prosecuting Clinton would raise the alarm is because it would suggest serious purpose to act. Trump tweeting about it while watching “Fox & Friends” in the morning feels like the opposite of that. A thought floats across his mind, he burps it out without thinking about the implications, then he moves on. No one takes it very seriously, which is a hell of a thing to say about the president but happens to be true. Who thinks he’d still care about prosecuting Hillary if Mueller announced today that the Russiagate probe was finished and POTUS was in the clear? How much did he care about her email malfeasance two weeks after the election?
All of that could change at any time, of course. The country *would* be convulsed if Trump suddenly fired Sessions and replaced him with someone vowing to prosecute Clinton. But the story of the first nine months of his presidency is that he’s almost all talk. Even the threat to ship Saipov off to Gitmo didn’t last a day. Despite his obsession with “strength,” he’s been a conspicuously weak president so far, unable to bend Congress to his will despite having a majority in both chambers. He seems happiest being the talk-radio-host-in-chief, tossing rhetorical red meat to please his fans; that’s a bad new norm to set but it also happens to be the role in which his critics believe he’s likely to do the least amount of damage. If we end up with President Bernie Sanders in 2021, the worries will have much less to do with him leaning on the DOJ to indict his enemies than they will with the government trying to take over the health-care industry.
As for Fidell, I wonder how much of this shpiel about Trump is legal in nature and how much is political. Right now Bergdahl’s a man without many friends on either side. The surest way to earn him some sympathy among Democrats is to paint him as a victim of Trump, never mind the American soldiers killed and maimed in the course of trying to bring his sorry ass back from enemy territory in Afghanistan.