A “Discernible Interest In The Outcome”

The United States District Court for the District of Columbia (Judge Walton) granted and denied in part defendant’s motion to dismiss and granted and denied in part plaintiff’s summary judgment in a civil matter attacking a court martial conviction of Bowe Bergdahl

Moreover, although the Department of Justice was not one of the parties in the plaintiff’s court-martial proceedings, this case is unique in that the head of the executive branch during part of the plaintiff’s court-martial proceedings—former President Trump—and thus the ultimate authority over the agency that would determine the military judge’s appointment as an immigration judge, expressed during his candidacy and subsequently ratified after his election explicit condemnations of the plaintiff, reflecting his “discernible interest in the outcome[,]” United States v. Wilson, No. ACM 39387, 2021 WL 2390367, at *13 (A.F. Ct. Crim. App. June 10, 2021), of the plaintiff’s case.17 See, e.g., Pl.’s Facts ¶ 90 (stating that Trump “repeatedly vilified the plaintiff, describing him as a traitor at numerous rallies, and suggesting, among other things, that he be executed”); id. ¶ 92 (“The plaintiff, [ ] Trump further asserted, was ‘the worst,’ ‘no good,’ ‘this bum,’ a ‘whack job,’ ‘this piece of garbage,’ a ‘son of a bitch,’ and ‘a very bad person who killed six people.’”); id. ¶ 94 (“Trump asserted that deserters used to be shot, implying and at times saying outright that the plaintiff deserved the death penalty.”); id. ¶ 104 (stating that, after he was elected president, Trump “ratified [his] disparaging pre-Inauguration comments about [the plaintiff]”); Def.’s Resp. to Pl.’s Facts ¶¶ 90, 92, 94, 104. See also Def.’s Mot., Ex. 8 (2d UCI Ruling) ¶ 15 (noting that the military judge “recognizes that this is an unusual case, perhaps unique in all the annals of military justice” in part because “a man who eventually became President of the United States and Commander[-]in[-]Chief of all the armed forces ma[de] conclusive and disparaging comments . . . about a soldier facing potential court-martial” and that “[t]he Court recognizes the problematic potential created by these facts”); Bergdahl II, 80 M.J. at 245 (Stucky, C.J., concurring in part and dissenting in part) (“This case is unique in modern American military jurisprudence. Let us hope that we shall not see its like again.”). Thus, former President Trump—and, arguably, the executive branch by extension—had explicitly stated an interest in a particular outcome in the plaintiff’s case, i.e., that the plaintiff would be convicted and receive the death penalty. See Pl.’s Facts ¶ 94; Def.’s Resp. to Pl.’s Facts ¶ 94. Furthermore, Trump’s statements formed the basis for the plaintiff’s second and third motions to dismiss based upon unlawful command influence. See Pl.’s Facts ¶¶ 100, 104; Def.’s Resp. to Pl.’s Facts ¶¶ 100, 104. Therefore, even though the Department of Justice was not directly involved in the plaintiff’s case as a party, Trump’s statements were integral to the potential success of the plaintiff’s defense, see Pl.’s Facts ¶¶ 100, 104 (indicating that former President Trump’s remarks formed the basis for two of the plaintiff’s motions to dismiss); Def.’s Resp. to Pl.’s Facts ¶¶ 100, 104, and specifically referenced the former president’s desire that the plaintiff be convicted and how he should be punished, see, e.g., Pl.’s Facts ¶¶ 90, 94, 103; Def.’s Resp. to Pl.’s Facts ¶¶ 90, 94, 103. Thus, the Court concludes that, based upon the military judge’s job application to an executive branch position—a situation in which he might reasonably be expected to appeal to the president’s expressed interest in the plaintiff’s conviction and punishment—“it would appear to a reasonable person[,]” Liljeberg, 486 U.S. at 860, “knowing all the circumstances,” id. at 861 (internal quotation marks omitted), “that [the judge]’s impartiality was in jeopardy[,]” Al-Nashiri, 921 F.3d at 235

Having concluded that this case presents a unique situation where the military judge might be inclined to appeal to the president’s expressed interest in the plaintiff’s conviction and punishment when applying for the immigration judge position, or at least that being the perception a reasonable member of the public would have, the Court concludes that the other circumstances of this case further “undermine [the judge’s] apparent neutrality[,]” id. at 237. Namely, the military judge in this case submitted a writing sample along with his application, consisting of an order in which he denied the plaintiff’s unlawful-command-influence motion which was based upon former President Trump’s statements, and ruled against the plaintiff—both actions that a reasonable person might view as serving the president’s interests in the case and thus, “creating the appearance of impropriety[,]” Liljeberg, 486 U.S. at 858. See Al-Nashiri, 921 F.3d at 237 (concluding that, by “cho[o]s[ing] to emphasize his role as the presiding judge over Al-Nashiri’s commission” and “suppl[ying] an order from Al-Nashiri’s case as his writing sample[,]” the judge “affirmatively called the [Department of] Justice[’s] [ ] attention to his handling of Al-Nashiri’s case, making his performance as presiding judge a key point in his argument for employment”). Finally, the military judge’s decision not to disclose his application for the immigration judge position, coupled with his misleading affirmative statements regarding his impending retirement, see supra note 14, also could lead “a reasonable observer [ ] [to] wonder whether the judge had done something worth concealing[,]” Al-Nashiri, 921 F.3d at 237.

The Court therefore concludes, based upon the totality of the circumstances, that “a reasonable person, knowing the relevant facts, would expect that [the military judge in this case] knew of circumstances creating an appearance of partiality[,]” Liljeberg, 486 U.S. at 850, and because, “in [this] proceeding[,] . . . [ ] th[e] military judge’s impartiality might reasonably be questioned[,]” R.C.M. 902(a), he should have disclosed his job application as a potential ground for his disqualification. In reaching this conclusion, the Court does not mean to opine that there was actual bias in this case or that the military judge’s “orders were [not] the product of his considered and unbiased judgment, unmotivated by any improper considerations.” Al-Nashiri, 921 F.3d at 237. Rather, the facts of this case present an appearance of partiality and, while “[a]ppearance may be all there is, [ ] that is enough[.]” Microsoft Corp., 253 F.3d at 115.

Accordingly, the Court concludes that it must deny the defendant’s motion and grant the plaintiff’s motion as to Count II of the plaintiff’s Complaint. Furthermore, the Court will vacate all orders and rulings issued by the military judge who presided over the plaintiff’s court-martial as of October 16, 2017, and thereafter—which was the date when that military judge submitted his employment application for an immigration judge position, see Pl.’s Facts ¶ 119; Def.’s Resp. to Pl.’s Facts ¶ 119—and “further vacate all decisions issued by [the appellate military courts] reviewing such orders [and rulings].” Al-Nashiri, 921 F.3d at 241 (vacating all orders issued by the military judge after the submission of his job application which the D.C. Circuit concluded should have been disclosed). Consequently, the judgment of the military judge regarding the plaintiff’s court-martial is rendered void. See Schlesinger, 420 U.S. at 746–47 (“Collateral attack seeks, as a necessary incident to relief otherwise within the [C]ourt’s power to grant, a declaration that the judgment is void.”)

(Mike Frisch)