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What Is 'Unlawful Command Influence' In The Military Justice System?


In the fall of 2017, Bowe Bergdahl was dishonorably discharged from the U.S. Army for deserting his post in Afghanistan years earlier. His rank was reduced. He had to pay a fine, but he did avoid prison time. And on the day Bergdahl was sentenced, President Trump tweeted that his sentence was a, quote, "complete and total disgrace." This wasn't the first time Trump had weighed in on the case. On the campaign trail, he had called Bergdahl a dirty, rotten traitor and said he should be executed for deserting.

Now, this week, a panel of military judges ruled that Trump's comments were evidence of what's called unlawful command influence. That's when someone higher up on the chain of command tries to influence the outcome of a military trial. Here to further explain unlawful command influence is Stephen Vladeck. He teaches military justice at the University of Texas School of Law. Welcome.

STEPHEN VLADECK: Thanks for having me.

CHANG: So I should first mention that while these military judges did find evidence of unlawful command influence, they still declined to change Bergdahl's sentence in any way. Bergdahl still lost his appeal. That said, what were the specific comments from Trump that these judges took issue with?

VLADECK: The Army Court of Criminal Appeals, the judges who were hearing this case, focused on the tweet you mentioned referring to the sentence imposed by the trial judge. And all three judges on the Court of Appeals said that's the exact kind of direct attempt to influence the participants in a military trial that unlawful command influence is supposed to prohibit. And so although the court divided as to the consequences, all three judges, active military officers all, found that the president had crossed the line, had broken the law.

CHANG: And just to be clear, this idea of unlawful command influence - it's something that we find only in the military justice system - right? - not in the civilian justice system.

VLADECK: That's right. And I think what's really important to understand about the military justice system is unlike in our civilian courts, the entire military justice system is comprised of men and women in uniform. And so these are folks who don't have the same kind of independence as our civilian judges.

CHANG: Right.

VLADECK: So from the trial lawyers to the defense lawyers to oftentimes the members on the jury to the judge, these are all folks who are subject to being influenced by their superior officers. And the whole point of unlawful command influence is to try to insulate as much of the military justice system from those pressures as possible.

CHANG: Now, has any other president besides Trump been found to have engaged in unlawful command influence?

VLADECK: Yeah, there was a high-profile case a couple of years ago involving President Obama. President Obama had given a speech where he had expressed concern that in too many of the sexual assault cases in the military, the defendants, once they were convicted, were getting off with sentences that were too light, that were too lenient. And there were a couple of military judges in Hawaii who actually found that that statement, even though wasn't a reference to any individual case - that that statement of itself was unlawful command influence because it was suggesting from the president that military judges should be imposing stricter sentences than they might otherwise be inclined to impose. And so in both of those cases, the judges ordered relief, and they actually imposed lesser sentences.

CHANG: Wow. That is so interesting because it raises the question. I mean, when can a president ever publicly talk about military justice at all without it possibly weighing in on some particular case?

VLADECK: Yeah, and I think the real concern is presidents of whatever stripe should not be commenting on cases in the military justice system in a way in which they're suggesting that the military justice system has not been harsh enough. That's where this concern is most prevalent. That's exactly what the Army Court found in the Bergdahl case.

CHANG: Bergdahl's case is not the only one that Trump has weighed in on. He was very publicly supportive of Eddie Gallagher, the Navy SEAL who was on trial for war crimes earlier this year. Trump even tweeted, quote, "glad I could help" when Gallagher was acquitted. Do military courts consider that kind of supportive remarks to be unlawful command influence as well?

VLADECK: Not usually. I mean, so it usually really is a one-way street with regard to unlawful command influence because the principal concern here is fairness to the defendant. And the military, fairness to the defendants means ensuring that they are insulated from, you know, unduly harsh treatment. More lenient treatment, especially at the order of the president the United States, is not only not forbidden. It's actually and consistent with both the president's constitutional authority and the history of our military justice system.

CHANG: Stephen Vladeck is a professor at the University of Texas School of Law.

Thank you very much for joining us today.

VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.