Former Blaine County resident Sgt. Bowe Bergdahl, who has lost two appeals in military courts, may yet see his convictions for desertion and misbehavior before the enemy overturned on the grounds that the trial judge had reason to curry favor with President Donald Trump, who had called Bergdahl “a dirty, rotten traitor” deserving conviction.
The judge, Army Col. Jeffery Nance, accepted Bergdahl’s guilty pleas in October 2017 and later sentenced him to a dishonorable discharge, reduction in rank to private and partial forfeiture of pay. Bergdahl lost an appeal of his conviction and sentence, based on a claim of “unlawful command influence” by Trump and Sen. John McCain, in the U.S. Army Court of Criminal Appeals last year; that decision was affirmed by the U.S. Court of Appeals for the Armed Forces, the military’s highest court, this August.
Bergdahl’s lawyer, Eugene R. Fidell, filed a petition for reconsideration of the decision on Sept. 7, claiming that the appeal was unfairly decided for several reasons. On Sept. 18, Fidell filed a motion to supplement the petition, containing the revelation that Nance had applied for a position as a federal immigration judge on the same day that he accepted Bergdahl’s guilty pleas. The motion states that the sole writing sample that Nance submitted with his employment application was his order denying Bergdahl’s motion for dismissal based on Trump’s comments against him.
According to the recent motion to supplement written by Fidell, Nance had asserted during the proceedings that he was immune from any outside influence, saying “The evidence establishes beyond a reasonable doubt that I ... hold no fear of any repercussions from anyone if they do not agree with my sentence in this case."
The motion states that Nance never disclosed to the defense that he had applied for a position as an immigration judge.
“A reasonable person would … think that Judge Nance had concealed his hope for employment in the Executive Branch over which the President presides,” Fidell’s recent motion states. “Judge Nance bolstered his denial of the renewed [unlawful command influence] motion by claiming that as a retiring Colonel he was immune from influence. He stated that he was heading for ‘retirement pastures’ and added, ‘I don’t expect to go anywhere but back home as soon as the Army is done with me in a year.’ When he made those statements, the ink was barely dry on the job application he had filed only days before.”
In an amicus brief filed Sept. 25, law professors Joshua Kastenberg and Rachel Vanlandinham, both veterans, argued that Nance was applying for a position in which he would be expected to uphold the administration’s policies.
“Particularly in the context of the politicization of immigration judge hiring during the Trump Administration, Judge Nance’s omissions would lead a reasonable person to conclude that Judge Nance desired to become a part of that politicized process by showing his fealty to the executive branch by his continued rulings finding that President Trump’s egregious comments regarding Appellant did not constitute apparent unlawful command influence,” the professors’ brief states.
In an answer to Fidell’s motion, the federal government contends that it was filed too late, noting that the Department of Justice issued a press release on Sept. 28, 2018, about Nance’s appointment as an immigration judge by then Attorney General Jeff Sessions, though the answer does not state to whom the release was issued. It also states that Fidell submitted a Freedom of Information Act request for Nance’s employment application on Aug. 27, 2020. Fidell’s motion states that he received the requested documents on Sept. 15.
“Granting Appellant’s motion would only incentivize litigants to ignore potential evidence until after the opponent can no longer respond,” the answer states.
The government also contends that Nance did not condone Trump’s comments, but rather called them “troubling,” “disturbing” and “disappointing,” and handed down a relatively light sentence. Trump had publicly stated that Bergdahl should be executed.
If his motion to reconsider is denied, Bergdahl retains the right to petition the U.S. Supreme Court to hear his case.