Bergdahl Lawyers Say Judge's Job Application Posed Conflict

CHARLOTTE, N.C. (AP) — A new motion filed in the case of former U.S. Army Sgt. Bowe Bergdahl is asking the highest appeals court for the U.S. military to overturn his conviction, citing an alleged conflict of interest involving the judge who originally presided over his sentencing.

The motion filed Friday seeks to have the Court of Appeals for the Armed Forces re-examine the impartiality of retired Army Col. Jeffrey Nance, the military judge who sentenced Bergdahl. The motion says Nance was working to secure a job with the Department of Justice at the time of his ruling in the Bergdahl case.

In 2017, Bergdahl pleaded guilty to desertion and misbehavior before the enemy. Bergdahl was a 23-year-old private first class in June 2009 when, after five months in Afghanistan, he disappeared from his remote infantry post near the Pakistan border, triggering a massive search operation.

Videos emerged soon after Bergdahl's disappearance showing him in captivity by the Taliban. For years, the U.S. kept tabs on Bergdahl with spies and satellites as behind-the-scenes negotiations played out sporadically. Then in May 2014, he was handed over to U.S. special forces in a swap for five Taliban detainees at the Guantanamo Bay prison, fueling an emotional U.S. debate about whether Bergdahl was a hero or a deserter.

The appellate judges upheld Bergdahl’s conviction earlier this year in a narrow 3-2 decision when they held that disparaging comments made about Bergdahl by the late Sen. John McCain and President Donald Trump in the White House Rose Garden back in October 2017 did not invalidate his prosecution.

Trump had described the ex-soldier as a “dirty rotten traitor,” called for the execution of Bergdahl by firing squad and joked in campaign appearances last election cycle that Bergdahl should be thrown from a plane without a parachute.

On Oct. 16th, the same day Nance accepted Bergdahl’s guilty plea, court documents show he applied for a position as a federal immigration judge.

Following Trump’s comments, Bergdahl’s attorney asked Nance to dismiss the case because of Trump’s comments “vilifying” Bergdahl.

According to court documents, Nance assured Bergdahl’s counsel that Trump’s comments would have no impact on his decision saying, “I have no hope or ambition beyond my current rank … I am completely unaffected by any opinions President Trump may have about Sgt. Bergdahl.”

But according to the motion, Nance highlighted his role as the judge presiding over Bergdahl’s case while applying to work in the Justice Department and even included as a writing sample a ruling rejecting Bergdahl’s unlawful command influence arguments.

Court documents state Nance never disclosed he was applying for a position as an immigration judge. But a press release announced his appointment to the position, by Attorney General Jeff Sessions in September 2018.

Public affairs staff at the Justice Department who handle communications for the Georgia immigration court that currently lists Nance as a judge didn’t immediately respond to an email seeking comment.

The motion was first reported on the CAAFlog website, which covers military legal affairs. Bergdahl’s attorney, Eugene Fidell, confirmed that the motion posted on the blog was accurate but declined further comment in an email.

In November 2017, Nance spared Bergdahl prison time in a sentence that included a dishonorable discharge, a reduction in rank and the forfeiture of some pay. Prosecutors had sought a stiffer penalty of more than a decade in prison because of wounds suffered by service members who searched for Bergdahl after he disappeared in 2009. Trump quickly called the sentence a “disgrace” at the time.

Before the sentencing, Nance rejected defense motions that charges should be dismissed or punishment limited because Trump was exerting unlawful command influence. While he declined to rule in the defense’s favor, he said at the time he had concerns about Trump’s comments affecting public perception of the military justice system. He said then that he would consider Trump’s comments a factor promoting leniency.

This article was written by SARAH BLAKE MORGAN from The Associated Press and was legally licensed through the Industry Dive publisher network. Please direct all licensing questions to legal@industrydive.com.