Will this Straw Finally Break the Government's Back in Bergdahl?

In addition to the reply to the Government's response to his reconsideration motion, Sergeant Bergdahl filed a motion to supplement the record in his case today. Sergeant Bergdahl is seeking to add evidence the trial judge, Judge Nance, made misleading and incomplete statements about the potential influence President Trump's UCI could have on the disinterested observer.

This new evidence shows Judge Nance applied for an executive agency job as an immigration judge during Sergeant Bergdahl's trial, and sent as his writing sample the order denying Sergeant Bergdahl's original motion on UCI. The facts here are similar to In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019), where Colonel Spath, as a trial judge applying for an immigration judge position prompted the D.C. Circuit to vacate all his orders in the case.

What makes Judge Nance's actions more relevant, and troubling, is he made numerous comments suggesting he was bulletproof while denying the UCI motion. His argument was that he was facing his upcoming mandatory retirement date in the Army, no statements by President Trump could influence him, or create the perception he would be influenced by them. Yet, Judge Nance was seeking a position to work for President Trump as an immigration judge, a job he later got. And to get that job, he sent as a writing sample his order denying Sergeant Bergdahl's UCI motion.

As earlier posts have noted, I believe CAAF made the wrong decision in this case. And I feel like the reconsideration motion and reply make the right arguments to highlight CAAF's errors. However, this new evidence may tip the scales in favor of Sergeant Bergdahl, as CAAF's decision explicitly relied on Judge Nance's bulletproof position, in part, when it affirmed a case that it said was already close.

Categories: Uncategorized