Sen. Jeff Flake announced yesterday that he will not seek reelection next year. Explaining his decision on the Senate floor, Flake had harsh words for President Trump. Among them were these:
Reckless, outrageous and undignified behavior has become excused as telling it like it is when it is actually just reckless, outrageous and undignified. And when such behavior emanates from the top of our government, it is something else. It is dangerous to a democracy.
President Trump’s behavior has been reckless, outrageous, and undignified at times. I’m not convinced that this behavior endangers democracy, but on the whole it isn’t good for the country.
Andy McCarthy argues that reckless comments by Trump about Bowe Bergdahl have jeopardized the military’s prosecution of the deserter. To understand how, we need to distinguish, as Andy does, between comments Trump made as a candidate and comments he made as president.
As a candidate, Trump ripped Bergdahl as a “dirty, rotten traitor.” Reportedly, he even mimicked the sound of a rifle shot as he pantomimed a firing squad executing Bergdahl.
Because Trump was not president at the time, this behavior did not affect the Bergdahl prosecution. Earlier this year, the military judge in that case rejected the defense’s attempt to rely on what Trump said before he became president.
Trump has not repeated his words about Bergdahl since becoming commander-in-chief. However, it can be argued that he has incorporated them by reference. McCarthy explains:
[L]ast week, at a White House press conference, he was asked whether his previous attacks on Bergdahl had unfairly prejudiced the court-martial against the defendant. There is only one proper answer to that question or, indeed, to any question to the president about the pending case: No comment.
Alas, that answer does not seem to be in the Trump repertoire. While the president declined to opine on what effect his comments may have had, he couldn’t just leave it there. Instead, he compulsively added, “But I think people have heard my comments in the past.”
Andy says this response “can be interpreted only one way: Trump wanted to make clear that he stands by his prior condemnatory remarks — as if he were making them again.” This may not be the only possible interpretation, but I think it’s the most plausible one.
Accordingly, Trump has placed the prosecution of Bergdahl in jeopardy. This isn’t just McCarthy’s view. Cully Stinson, now of the Heritage Foundation and formerly a military lawyer and judge, shares it. He cites the military law principle known as “unlawful command influence.” It forbids any official with the mantle of command authority from taking any action, including making any statement, that could influence a military tribunal that is considering a soldier’s case.
At a minimum, Trump has flirted with a violation of this principle. And he has done even though he knew, or should have known, that his earlier comments about Bergdahl were already being used by the defense team. McCarthy reminds us:
Shortly after Trump was sworn in, Bergdahl’s lawyer, Yale’s Eugene Fidell, began arguing that the case against his client should be thrown out on the theory that Trump’s remarks constituted “unlawful command influence.”. . .
In February, after a hotly contested litigation, the judge, Army Colonel Jeffrey R. Nance, denied Bergdahl’s motion on this rationale.
Consequently, all the president had to do to avoid further problems for the prosecution was to avoid further commentary about Bergdahl. Too much to ask, apparently.
So now, the Bergdahl defense team has renewed its motion, even though Bergdahl already pleaded guilty. The military judge is taking the motion seriously.
The judge explained that when he denied the motion to dismiss back in February, he reasoned that the “disturbing” campaign rhetoric could be disregarded because Trump was not in a position of command influence. That rationale, he observed, “tend[s] to be eroded when the now-president of the United States adopts those past statements.”
The judge has adjourned the sentencing proceedings until today, Wednesday, to consider whether Trump’s remarks warrant granting Bergdahl’s motion for a sentence of minimal, if any, imprisonment. As McCarthy rightly says, if the “dirty, rotten traitor” gets a pass, President Trump will have only himself to blame.