A pardon for Bowe Bergdahl? Unlikely, experts say
By COREY DICKSTEIN | STARS AND STRIPES Published: December 13, 2016
WASHINGTON — A presidential pardon to spare ex-Taliban captive Army Sgt. Bowe Bergdahl from facing a court-martial on charges he deserted and endangered his fellow soldiers appears unlikely in the final weeks of President Barack Obama’s tenure, according to experts.
Not only has Obama granted few pardons, the president also has demonstrated no interest in meddling with the military justice system in which Bergdahl has been entangled since his release in May 2014 by insurgents in Afghanistan, several experts on presidential pardons and military law told Stars and Stripes.
Bergdahl, 30, has admitted to Army investigators that he willingly left his post in eastern Afghanistan in June 2009 and was quickly abducted by Taliban fighters. Last year, the Army charged him with “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty.” The more serious misbehavior charge carries a potential life sentence, if convicted. His trial is scheduled for April.
But because Bergdahl’s court-martial will occur during the administration of President-elect Donald Trump, the soldier’s attorneys have petitioned the White House for a pardon. Eugene Fidell, Bergdahl’s lead lawyer, has said his client cannot receive a fair trial with Trump as commander in chief after the president-elect criticized Bergdahl on several occasions during the campaign. Trump referred to Bergdahl as a “no-good traitor” at nationally televised rallies and opined that he should have been executed.
Fidell said he is preparing, if necessary, to file a motion to dismiss the case on the basis of Trump’s comments soon after the Jan. 20 inauguration. Beyond that, Fidell has declined to discuss the pardon request.
Few pardons under Obama
Bergdahl’s defense team will probably have to file the motion for a pardon, said P.S. Ruckman Jr., a political scientist and the editor of the Pardon Power blog.
A pre-conviction pardon would be extremely rare, he said. While not unheard of – President Gerald Ford famously pardoned his predecessor Richard Nixon in 1974 ahead of any conviction related to the Watergate scandal – pre-trial pardons have typically been reserved for blanket amnesty approvals. For example, President Jimmy Carter granted unconditional pardons on his first day in office in 1977 to draft dodgers during the Vietnam War.
Perhaps more telling, Ruckman said, is Obama’s own history with clemency.
While Obama has granted commutations – a power to reduce convicted offenders’ sentences – at a historic rate, he has shown little interest in granting pardons.
Obama has approved only 70 pardon requests in his eight years in office, the second fewest granted since John Adams, the nation’s second president. Obama has denied more than 1,600 pardon requests during his presidency, according to the Justice Department.
“Someone trying to get a pardon from this guy is a long, long shot,” Ruckman said. “After eight years, there is zero evidence that Obama is likely to grant a big time, controversial pardon. There is just zero evidence at this point to suggest that he is the kind of person willing to do anything like that.”
Even the White House hinted a pardon for Bergdahl – or any other high-profile clemency-seekers such as Edward Snowden or Army Pvt. Chelsea Manning – is unlikely to come before Jan. 20.
“The president … has said previously, he does not expect to essentially ram through any pardons at the last minute,” White House Press Secretary Josh Earnest told reporters Dec. 8. “There’s an established process and the president believes that’s a process that’s worth following.”
Typically, that process only begins after a five-year post-conviction waiting period, and approval can take several more years once the petition has been submitted, Ruckman said. It involves background investigations and reviews by the deputy attorney general and the White House council.
“It’s a multilayered, bureaucratic, slow-moving, plodding kind of thing,” Ruckman said. “And, frankly, no sane person would bet on it” with Obama in office.
If Obama really wanted to dismiss the charges against Bergdahl, he could have done so at any time, said Eric Carpenter, an assistant law professor at Florida International University and a former Army defense attorney and prosecutor.
“The fact that President Obama has not to this point taken any action to prevent a court-martial -- he could have at any point -- is pretty strong evidence to me that he won’t grant a pardon,” Carpenter said.
Obama’s advisers are certainly aware of the opinions of many people in the military and veterans’ communities, who on social media have regularly voiced displeasure with Bergdahl’s actions, said Victor Hansen, an associate law professor at the New England School of Law and a former Army lawyer.
“There’s no political gain for the president in pardoning Bergdahl,” Hansen said. “I would expect his advisers to steer him away from this and tell him: ‘Why would you want to get involved in this case that has not even been litigated yet?’”
That’s a message Republican lawmakers have been expressing since news of the pardon request broke last week. A letter signed by 27 Republican congressmen delivered to the White House on Dec. 8 urged Obama to allow the court-martial to play out.
“A pardon would be a slap in the face to all of our nation’s servicemembers who put their lives on the line each and every day,” said Rep. Bradley Byrne, R-Alabama, a member of the House Armed Services Committee and one of the letter’s signees.
Several law professors with substantial military law experience had differing opinions on whether Bergdahl should receive a pardon.
Hansen dismissed the petition as a defense team “pipe dream,” and said the factors surrounding the case do not merit a pardon.
Another former military lawyer and now law professor, Richard D. Rosen, said the pardon request was a smart move because it highlights the comments made by Trump about the case.
Nonetheless, he said he did not think Obama should grant it because the charges against Bergdahl are “serious” and a military jury should be capable of judging him fairly despite what Trump has said.
“I think Bergdahl ought to be tried,” said Rosen, who teaches at Texas Tech University in Lubbock, Texas.
But Rachel VanLandingham, an associate professor of law at Southwestern Law School in Los Angeles and former Air Force judge advocate, said Obama should at least “seriously consider” granting Bergdahl a pardon.
She said the president should consider whether Bergdahl should have ever been in the Army. The soldier had washed out of the Coast Guard’s initial entrance training three years before he enlisted in the Army. An Army investigation later determined he was suffering from mental health issues when he walked off Observation Post Mest in Afghanistan.
Moreover, VanLandingham said, Trump’s “irresponsible and grossly prejudicial” remarks as a candidate raise the “appearance of unfairness in this case off the charts,” if the court-martial is conducted while he is commander in chief.
“This case warrants dismissal with prejudice by the military judge presiding over it, if not a presidential pardon,” she wrote in an email. “However, … I doubt one will be forthcoming, regardless of the strong merits for doing so. The president surely does not want to contribute to a sense that he has not been sensitive to the real negative repercussions of Sgt. Bergdahl’s actions.”