Bergdahl, Bowe R

With Tweet, Trump May Add Burden to Prosecution of Attack Suspect

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By the end of the day, the Manson team’s lawyers had moved for a mistrial, citing the president’s remarks, and Nixon issued what his press secretary called a “clarification” taking them back.

“The last thing I would do is prejudice the legal rights of any person, in any circumstances,” Nixon said. The defendant later held up in court a newspaper with the headline “Manson Guilty, Nixon Declares.” But the judge allowed the trial to proceed, ultimately ending with a conviction.

In 2005, President George W. Bush expressed his confidence that Representative Tom DeLay of Texas, the former Republican majority leader, would be acquitted, weeks before his trial on money laundering charges was to open. “I hope that he will, ’cause I like him, and plus, when he’s over there, we get our votes through the House,” Mr. Bush told a television interviewer.

His successor, President Barack Obama, forecast an execution for Khalid Shaikh Mohammed, the self-described mastermind of the attacks on Sept. 11, 2001. Defending a decision to try Mr. Mohammed in civilian court rather than a military tribunal, Mr. Obama said critics would not find it “offensive at all when he’s convicted and when the death penalty is applied to him.”

The impact of such comments is more pronounced in military justice cases since the president is commander in chief of the judges and juries that determine guilt or innocence and hand down sentences.

Responding to a wave of sexual harassment allegations in the military, Mr. Obama declared in 2013 that troops who commit sexual assault should be “prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged.” In this instance, he was not commenting on a particular defendant, but attorneys nonetheless argued that it constituted “unlawful command influence.”

Such influence refers to actions by commanders that could be seen as an attempt to sway a court martial. Defense lawyers in multiple cases cited Mr. Obama’s words. In one case in South Carolina, a judge noted the command influence issue in dismissing sexual assault charges against an Army officer. In another in Hawaii, a Navy judge decided that two defendants could not be punitively discharged because of the president’s comments.

Mr. Trump has more than once offered strong words about people suspected of major crimes. He called the man who opened fire on a concert in Las Vegas last month a “very sick man” and “a very demented person,” but since the man was killed, there will be no trial to influence. On Wednesday, he called Sayfullo Saipov, the immigrant from Uzbekistan charged with plowing a pickup truck into a crowded bicycle trail, killing eight, “this animal.”

Mr. Trump was unflinchingly vocal about Sergeant Bergdahl as a candidate, calling him a “dirty rotten traitor” who should be executed. A military judge in February called the comments “disturbing and disappointing,” but decided since they were made when Mr. Trump was a private citizen, not the president, they did not constitute undue command influence.

Mr. Trump was more restrained when asked about Sergeant Bergdahl’s case last month, but not so much that it did not come up in court. “I can’t comment on Bowe Bergdahl,” Mr. Trump told reporters in the Rose Garden. “But I think people have heard my comments in the past.”

After concerns were raised about the “but” in his comment, the White House sought to mitigate any possible damage with a statement. “The president expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations,” the statement said.

Col. Jeffery R. Nance, the Army judge presiding over the case, rejected a request that he dismiss the case or limit the potential sentence because of Mr. Trump’s remarks, saying he had not been influenced. But he indicated that he would weigh the president’s comments before determining punishment. “I will consider the president’s comments as mitigation evidence as I arrive at an appropriate sentence,” he said.

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Wendy Pettit

Wendy Pettit is a writer for NYT and writes for other publications on her spare time. She lives in Chicago with her husband and her dog Zuko.

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