       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 Mat-
   thew 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); Lieuten-
   ant 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 dissent-
   ing 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, Ap-
pellant, 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

the state of his mental health. See infra Part II.C. Specifi-
cally, Appellant erroneously came to believe that poor leader-
ship in his battalion put his platoon at risk of being sent on a
suicide mission. In order to report his concern, Appellant de-
cided 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 ef-
fort. 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, ex-
changed 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 dis-
charge, 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 Sen-
ate 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 jus-
tice system because “an objective, disinterested observer,
fully informed of all the facts and circumstances, would har-
bor a significant doubt about the fairness of the proceeding.”
United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (in-
ternal quotation marks omitted) (quoting United States v.
Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)). Appellant asks this


                               2
           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

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 accounta-
ble at a general court-martial for his offenses (to which he vol-
untarily pleaded guilty); and (2) Appellant would not have re-
ceived the dishonorable discharge he himself subsequently
requested.
    Thus, simply stated, it was the totality of the circum-
stances 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. Accord-
ingly, we hold that there was no appearance of unlawful com-
mand 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).



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           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

                       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 com-
mand 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 ad-
      judged by the court, or with respect to any other ex-
      ercise of its or his functions in the conduct of the pro-
      ceeding. No person subject to this chapter may
      attempt to coerce or, by any unauthorized means, in-
      fluence the action of a court-martial . . . or any mem-
      ber 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 re-
      spect to the findings or sentence adjudged by the
      court-martial . . . , or with respect to any other exer-
      cise 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 sub-
      ject to the code may attempt to coerce or, by any un-
      authorized means, influence the action of a court-
      martial or any other military tribunal or any mem-
      ber thereof, in reaching the findings or sentence in
      any case or the action of any convening, approving,
      or reviewing authority with respect to such author-
      ity’s judicial acts.

    There are two types of unlawful command influence that
may arise in the military justice system: actual unlawful com-
mand 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.




                                 4
            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

    This Court reviews allegations of unlawful command in-
fluence 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 com-
mand influence occurred. Boyce, 76 M.J. at 249 (internal quo-
tation 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 rea-
sonable 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 unlaw-
ful 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 (alter-
ation 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 Diction-
ary 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 accepta-
ble.”); 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.”).



                                  5
            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

                           II. Analysis
 A. Ability to Commit Unlawful Command Influence
    As a threshold matter, based squarely on the plain lan-
guage 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 com-
mitting 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 author-
ity . . . may censure, reprimand, or admonish a court-mar-
tial . . . .” 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 . . . .”




                                 6
            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

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 lan-
guage into a rule that is anything but ambiguous is the an-
tithesis 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, Fix-
ing 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-dis-
cusses-statutory-interpretation (“We’re all textualists now.”).
Indeed, the conclusion that the words of R.C.M. 104(a)(1) nec-
essarily 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).



                                  7
           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

to omit”); Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (“If un-
certainty 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) pro-
vides 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 pre-
senting “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 re-
ferral 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 de-
lay or block assignments or promotions of senior military per-
sonnel. 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 con-
gressional oversight of the armed forces regarding military
justice issues generally, or the disposition of certain catego-
ries 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



                               8
            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

to his liking. This situation is altogether different from stand-
ard 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 (inter-
nal quotation marks omitted) (citations omitted).
   Senator McCain’s comment was especially problematic be-
cause of the timing of his remarks. He made them after learn-
ing that the preliminary hearing officer in Appellant’s case
recommended that the charges be referred to a special court-
martial 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 out-
come 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) (sec-
ond alteration in original) (italics removed). However, this is a con-
clusion 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 com-
mand influence, and a de novo review of the facts as applied to the
apparent unlawful command influence demonstrates that Appel-
lant has met his initial low burden of presenting “some evidence.”



                                  9
          United States v. Bergdahl, No. 19-0406/AR
                    Opinion of the Court

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 do-
      ing 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 Berg-
      dahl. 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 devas-
      tated, ruined, destroyed. And they were killed going
      out to try and bring him back, and they lost five peo-
      ple, probably six, by the way. But at least five peo-
      ple. . . . 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 tell-
      ing you. I’m telling you.


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            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

Def. Appellate Ex., at 45.
    To begin with, “[t]he term ‘traitor’ is particularly odious,
particularly in the military community.” United States v. Bar-
razamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003). And im-
portantly, the record does not support the contention that Ap-
pellant 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 else-
where, 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 en-
emy, 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 cap-
tivity Appellant complied with the Code of Conduct for Mem-
bers 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 es-
cape, . . . 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. Ap-
pellate Ex., at 28; “[H]e was a deserter 100% it’s not like the old



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            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

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 can-
didate, 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, nei-
ther Article 37, UCMJ, nor R.C.M. 104(a)(1), applied to com-
ments 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 some-
       thing today, as we know. And he’s also—they’re set-
       ting 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 in-
sane” 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.



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           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

       be that in spite of knowing that he should not com-
       ment 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 trai-
tor 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-mar-
tial . . . 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 pro-
ceedings.” R.C.M. 104(a)(1).
    Similarly, President Trump later posted to the social net-
working 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 Mil-
itary.” Donald J. Trump (@realDonaldTrump), Twitter (Nov.
3, 2017, 11:54 AM). This statement appeared both to “cen-
sure” the court-martial with respect to the sentence, and had
the potential to appear to influence other subsequent “func-
tions 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 in-
fluence. 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 crimi-
nal matter pose a grave risk to the goal of ensuring that jus-
tice 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—de-
spite the commission of heinous crimes—if the actual or ap-
parent unlawful command influence results in the dismissal



                               13
            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

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 lan-
guage 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 un-
lawful command influence).
    In this particular case, however, we conclude that a find-
ing 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 cu-
mulatively.
    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



                                 14
            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

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 dur-
ing the investigation and preferral stages of this case.
    In regard to the next stage of the court-martial proceed-
ing, Appellant emphatically—and understandably—under-
scores the fact that although the Article 32, UCMJ, prelimi-
nary hearing officer recommended that this case be referred
to a special court-martial not empowered to adjudge a bad-
conduct discharge—which would have precluded the dishon-
orable discharge that was actually imposed here—the
GCMCA in this case, General (GEN) Robert B. Abrams, ulti-
mately referred Appellant’s case to a general court-martial
that was empowered not only to adjudge a dishonorable dis-
charge 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, Commis-
sions, and Committees, Procedures for Administrative Investiga-
tions 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 recom-
mended 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 impris-
onment be imposed on Appellant. Once again, MG Dahl’s recom-
mendation was followed.



                                15
           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

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 af-
fidavit 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 denuncia-
tion of and disassociation from these comments. Although
these two points are not dispositive of the issue in a case in-
volving 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 con-
junction with the additional supporting facts discussed below.
   Next, there is no requirement that a convening authority
adopt the recommendations of an Article 32, UCMJ, prelimi-
nary hearing officer. See R.C.M. 601. Indeed, any observer of
the military justice system would realize that it is not uncom-
mon for a GCMCA to refer a case to a court-martial in a man-
ner 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, disinter-
ested 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 court-
martial 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


                              16
           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

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 exten-
sive 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 differ-
ent 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 se-
rious injuries to his right hand, continues to experience phys-
ical pain, and has not fully regained the use of his hand de-
spite surgery. Additionally, during the same mission, Master


    12 DUSTWUN is used “when the responsible commander sus-

pects the member [of the armed forces] may be a casualty whose
absence is involuntary, but does not feel sufficient evidence cur-
rently exists to make a definite determination of missing or de-
ceased.” United States Army Human Resources Command, Army
Casualty and Mortuary Affairs Frequently Asked Questions (Mar.
23,    2020),    https://www.hrc.army.mil/content/Army%20Casu-
alty%20and%20Mortuary%20Affairs%20Fre-
quently%20Asked%20Questions (last visited Aug. 19, 2020).




                               17
           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

Sergeant (MSG) Mark Allen was shot through the head. Fol-
lowing his injury, MSG Allen was in a “vegetative state,” se-
verely 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 re-
moval of both his frontal lobes, MSG Allen continued to expe-
rience 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 po-
sitions where he would be privy to such information. After
Appellant’s desertion but before his rescue, GEN Abrams be-
came the Commanding General of the Third Infantry Divi-
sion. He deployed to Afghanistan in that capacity where he
received briefings concerning the Army’s efforts to rescue Ap-
pellant. Later, GEN Abrams served as the Senior Military As-
sistant to the Secretary of Defense, during which time he was
present for briefings regarding Appellant, was aware of nego-
tiations taking place to effect Appellant’s return from Taliban
captivity, and provided daily reports to the Secretary of De-
fense 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 com-
mand posts in the military. Thus, an objective and disinter-
ested 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-who-
searched-for-bowe-bergdahl/index.html.
   14 The preliminary hearing officer also said that any such evi-
dence of casualties needed to be served on the defense. And yet,
there is no evidence that the Government did so. However, Appel-
lant has not raised this issue before this Court.




                               18
            United States v. Bergdahl, No. 19-0406/AR
                      Opinion of the Court

this casualty information at the time he decided to send Ap-
pellant’s case to a general court-martial rather than to the
more limited special court-martial recommended by the Arti-
cle 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 re-
sponsible for combat readiness of all . . . Army . . .
forces . . . .”). An indispensable element of unit cohesion, read-
iness, 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 in-
formed 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 casu-
alties at the time he referred the charges to a general court-martial,
he was aware of the following: (1) United States Armed Forces con-
ducted a massive, long-term manhunt for Appellant in hostile ter-
ritory 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 man-
date 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 em-
powering 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.



                                  19
             United States v. Bergdahl, No. 19-0406/AR
                       Opinion of the Court

72 M.J. at 423), would recognize that if GEN Abrams had cho-
sen 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 Appel-
lant 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 ser-
vicemembers were injured or were likely injured in the course
of the military’s efforts to rescue Appellant from the conse-
quences of his own misconduct. Therefore, a hypothetical ob-
server would “[not] harbor a significant doubt about the fair-
ness 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 pro-
ceedings, it cannot be emphasized strongly enough that Ap-
pellant 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 sit-

ting as a general court-martial convicted Appellant of one specifica-
tion of desertion with intent to shirk hazardous duty and one spec-
ification 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 de-
sertion—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.



                                   20
           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

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 mili-
tary 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 court-
martial proceedings can prevail.
    In terms of the sentencing stage of these proceedings, Ap-
pellant presented significant mitigation evidence. For exam-
ple, he produced evidence that prior to his Army service, he
served in the United States Coast Guard but soon was sepa-
rated, 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 Appel-
lant 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 testi-
fied, at the time of the offenses in 2009 Appellant likely suf-
fered 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 dis-
ease or defect, he nevertheless was able to “appreciate the na-
ture 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 Berg-
dahl left [his post] with good, albeit misguided, motives.”




                              21
           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

    Additionally, although it was a tragic consequence of his
own decision to abandon his post, Appellant presented com-
pelling 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 cap-
tivity, 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, Ap-
pellant’s hands and feet were shackled to a metal bedframe,
causing the development of bedsores and resulting in such se-
vere 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—includ-
ing on the bottom—and was elevated about eight inches above
the ground. The size and construction of the cage made it “ex-
cruciatingly painful” to stand, and “impossible” to move
around. Appellant was left to “rot inside that cage.” This tor-
ture exacerbated Appellant’s preexisting mental conditions.
As a result, he requires “more complicated” and “more ex-
tended” medical treatment for his mental health problems.
However, Appellant is precluded from accessing such health-
care 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 signifi-
cant 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 Afghani-
stan. 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 Sen-
ator McCain or President Trump and was instead based solely
on the serious offenses to which Appellant pleaded guilty and


                              22
           United States v. Bergdahl, No. 19-0406/AR
                     Opinion of the Court

on the facts established during the Government’s case in ag-
gravation. Indeed, it is telling that at his sentencing hearing
after his guilty plea, and fully aware of his own case in miti-
gation, Appellant specifically recognized that he was deserv-
ing 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 princi-
       ple 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 dis-
charge and that he wanted the military judge to impose that
specific punishment upon him. Accordingly, it is difficult in-
deed 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 sensa-
tional 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 re-
ceive 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 ob-
jective, 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 testa-
ment to the strength and independence of the military justice
system. Therefore, assertions of an appearance of unlawful
command influence are once again unavailing.




                               23
             United States v. Bergdahl, No. 19-0406/AR
                       Opinion of the Court

    And finally, in terms of the clemency and appellate stages
of this case, we reiterate the following critical points: Appel-
lant pleaded guilty to deserting his unit with intent to shirk
hazardous duty and of engaging in misbehavior before the en-
emy; 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. deten-
tion facility in Guantanamo Bay, Cuba, in order to secure Ap-
pellant’s release; and yet the military judge imposed as a sen-
tence 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 Ap-
pellant was a foregone conclusion unaffected by any public
comments made about the case. We further observe that Ap-
pellant’s post-trial matters submitted to the convening au-
thority were “absent of any formal request for clemency in the
form of a sentence reduction.” Bergdahl, 79 M.J. at 526. Sim-
ilarly, 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).




                                 24
             United States v. Bergdahl, No. 19-0406/AR
                       Opinion of the Court

“disturbing,”18 “disappointing,”19 “inaccurate,”20 “inappropri-
ate,”21 and “ill-advised”22 they were—did not place an intoler-
able 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-mar-
tial 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).
   21R. of Trial, United States v. Bergdahl, vol. XXXVI, 579 (testi-
mony of GEN Robert Abrams).
   22   Bergdahl, 79 M.J. at 522 (internal quotation marks omitted).



                                  25
           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 su-
perbly argued and has brought forth the finest efforts of my
colleagues, both in the majority opinion and in the concur-
rences. 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 un-
lawful 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 cor-
rectly points out. But conditioning the hearings on Appel-
lant’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 in-
stitutional consequences of adjudging or approving such a
sentence.
   President Trump’s vicious and demeaning remarks about
the treatment he believed Appellant should receive were re-
layed 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 presi-
dent, and particularly this one, the government has a unique
burden to bear in rebutting the appearance of unlawful influ-
ence. It has not done so. That being the case, I agree with
Judge Sparks: the comments of Senator McCain and the Pres-
ident 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

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.




                               2
           United States v. Bergdahl, No. 19-0406/AR
    Judge SPARKS, concurring in part and dissenting in part

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




                               3
           United States v. Bergdahl, No. 19-0406/AR
    Judge SPARKS, concurring in part and dissenting in part

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 court-
martial 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.




                                 4
           United States v. Bergdahl, No. 19-0406/AR
    Judge SPARKS, concurring in part and dissenting in part

                          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.




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           United States v. Bergdahl, No. 19-0406/AR
    Judge SPARKS, concurring in part and dissenting in part

                        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.




                              6
           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 com-
mand influence unless three conditions are met. The first con-
dition 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 sec-
ond 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 con-
cludes that Appellant is not entitled to relief.
    My views are different, but I reach the same ultimate con-
clusion. 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 other-
wise 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 ques-
tion, the second sentence of this article read as follows:
       No person subject to this chapter may attempt to co-
       erce or, by any unauthorized means, influence the
       action of a court-martial or any other military tribu-
       nal 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

        or sentence in any case, or the action of any conven-
        ing, 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 Sena-
tor 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 evi-
dence” 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 stat-
utory 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 an-
other’s property.” Black’s Law Dictionary (11th ed. 2019) (en-
tries for “coerce” and “threat”). Definitions from other diction-
aries 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 au-
thority’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”).



                                 2
          United States v. Bergdahl, No. 19-0406/AR
     Judge MAGGS, concurring in part and in the judgment

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 un-
authorized means [to] influence the action” of a convening au-
thority 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 Ap-
pellant receives no punishment was “some evidence” of both
(a) an attempt “to influence the action” of the convening au-
thority, 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 enumer-
ated 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 ad-
       ministration of existing laws as well as proposed or
       possibly needed statutes. It includes surveys of de-
       fects 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, inef-
       ficiency 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 condi-
tions which the legislation is intended to affect or change.’ ”
(second alteration in original) (quoting McGrain v. Daugh-
erty, 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-



                                3
            United States v. Bergdahl, No. 19-0406/AR
       Judge MAGGS, concurring in part and in the judgment

tion.”). The Supreme Court further has recognized that Con-
gress 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 re-
lated to, and in furtherance of, a legitimate task of the Con-
gress.” 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 Su-
preme Court has declared that Congress’s investigative pow-
ers are limited to legislative concerns, explaining: “Congress
[is not] a law enforcement or trial agency.” Id. But the Su-
preme 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 con-
text involved is discussed in United States v. Calley, 46 C.M.R.
1131, 1138 (A.C.M.R. 1973).



                                4
            United States v. Bergdahl, No. 19-0406/AR
       Judge MAGGS, concurring in part and in the judgment

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 vio-
lation 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 Ser-
        vices 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 leg-
islator in asking for money from constituents is a question for the
trier of fact).



                                 5
            United States v. Bergdahl, No. 19-0406/AR
       Judge MAGGS, concurring in part and in the judgment

        uncover malfeasance or malfeasance by public offi-
        cials 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 cer-
        tainly hold hearings, gather information and draft
        and submit changes to the UCMJ to the [C]ongress
        for vote. However, such changes would be: 1) Pro-
        spective and 2) Not tied to or effecting [sic] a partic-
        ular case that has already been disposed of. The de-
        fense 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 un-
        fairness 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 proceed-
ings. Accordingly, based on the absence of findings of fact nec-
essary 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 oc-
curred.” 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 as-
sumed 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 con-
vening 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 un-
like 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.



                                   6
          United States v. Bergdahl, No. 19-0406/AR
     Judge MAGGS, concurring in part and in the judgment

nation in Part II.A.2 that R.C.M. 104(a)(1) applied to Presi-
dent 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 sen-
       tence 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. Ap-
pellant contends that the term includes President Trump be-
cause he has the power to convene a general court-martial.
The Government argues that the term includes only the per-
son 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 an-
swers this question about the meaning of “convening author-
ity” 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 Presi-
dent 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 any-
one 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 court-
martial. 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 irrele-
vant because President Trump did not convene this court-
martial, even though he had the power to do so.
   In my view, the answer to the disputed issue lies in recog-
nizing the important “principle that a text does include not
only what is express but also what is implicit.” Antonin Scalia


                                 7
          United States v. Bergdahl, No. 19-0406/AR
     Judge MAGGS, concurring in part and in the judgment

& 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 “conven-
ing 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 court-
martial the right to present evidence and make argument in
any other court-martial. Likewise, when R.C.M. 705(e) pro-
vides 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 ex-
pressly 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



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            United States v. Bergdahl, No. 19-0406/AR
       Judge MAGGS, concurring in part and in the judgment

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 ad-
monish . . . 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 is-
sue.”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 & Gar-
ner, 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 re-
assigned 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 fa-
miliar and uncontroversial principle that a difference in the word-
ing of two sections of “the same Act” presumably gives the two sec-
tions different meanings. 464 U.S. 16, 23 (1983) (internal quotation
marks omitted) (citation omitted). This principle, however, is not



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           United States v. Bergdahl, No. 19-0406/AR
      Judge MAGGS, concurring in part and in the judgment

    This reading also strikes me as being much more plausible
than the one asserted by Appellant. If “no convening author-
ity” implicitly means no person empowered to act as a conven-
ing 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 con-
vening 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 de-
terminations with respect to both Senator McCain and Presi-
dent Trump, I do not join Parts II.A. or II.B. of the lead opin-
ion. 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 evi-
dence that Senator McCain had violated Article 37(a), UCMJ,
and even if R.C.M. 104(c) did apply to the President, the state-
ments 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 stat-
ute like Article 37(a), UCMJ, to the wording of a presidentially
promulgated procedural rule like R.C.M. 104(a)(1), because the ar-
ticle 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 pre-
sumably also carries the same implied limitation.



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