The Justice Department is appealing a U.S. District Court judge’s decision to dismiss the conviction and sentence of former Army Staff Sgt. Bowe Bergdahl, who abandoned his post in Afghanistan, triggered a military search and spent years in Taliban captivity.
A filing May 29 puts the case in the hands of the U.S. Court of Appeals for the District of Columbia Circuit. Judge Reggie Walton ruled last July that the sentence given by the military judge in Bergdahl’s court-martial — a reduction in rank and dishonorable discharge — must be dismissed because the judge failed to disclose a potential conflict of interest while overseeing the case.
After Walton’s announcement, the Justice Department filed a motion for reconsideration, as did Bergdahl’s attorneys, who argued that a separate decision by Walton dismissing their argument that President Donald Trump and the now-deceased Sen. John McCain, R-Ariz., had exerted unlawful command influence in the case be reconsidered.
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Walton on May 23 published his reasoning for his decisions, reaffirming his earlier stance — that the dismissal of Bergdahl’s conviction should stand because Army judge Col. Jeffery Nance failed to disclose he had applied for a job within the Trump administration while he was hearing the case and in fact cited his involvement in the Bergdahl case as part of the application process.
Walton also said he saw no reason to reconsider his decision refuting that unlawful command influence had been committed by Trump or McCain.
The Justice Department argued that there was a “risk of injustice” if Bergdahl’s court-martial results were overturned, and the dismissal would result in a new court-martial that would cost the military time and resources.
In his opinion, Walton said those arguments weren’t applicable, given legal precedent.
The Justice Department also said that, by vacating the court-martial, the decision risked undermining public confidence in the judicial system. But Walton argued that, if he had decided against dismissing the sentence when Nance clearly had a conflict of interest, that would undermine the system as well.
Being a judge “requires the most scrupulous conduct,” Walton wrote, citing other cases.
The Justice Department filed its appeal of Walton’s original judgment and denial of reconsideration. The department did not respond to a request for comment by publication.
Bergdahl’s attorneys had asked Walton to reconsider a ruling that there was no unlawful command influence by Trump in light of his ruling that Nance failed to disclose his conflict of interest.
Walton denied that motion to reconsider. Bergdahl’s attorneys declined to comment on the case and did not say whether they plan to cross-appeal.
Bergdahl was serving with 1st Battalion, 501st Parachute Infantry Regiment, in 2009 when he walked away from his outpost in Afghanistan. He was captured by the Taliban, triggering a massive military search, and was held captive for five years.
The monetary and human cost of the search — the death of a soldier 10 years later from injuries sustained after being shot in the head during the manhunt, injuries to four others troops, and the trade for five members of the Taliban that resulted in Bergdahl’s repatriation in 2014 — touched off a firestorm in national politics and within the ranks.
Bergdahl pleaded guilty to charges of desertion and misbehavior before the enemy in 2017 and received a dishonorable discharge, reduction to the rank of private, and forfeiture of $10,000 in pay. He lost his appeals through the military justice system and filed a civil suit arguing he was denied a fair trial as a result of Nance’s failure to disclose his employment application, as well as the alleged unlawful command influence.
The circuit court has not yet placed the case on its calendar.
Related: Veterans in Congress Press for Bowe Bergdahl to Be Retried After Sentenced Was Dismissed
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