Why "no comment" can be a good answer

Trump is of course famous (or infamous) for spouting off on Twitter. Liberals often condemn his tactlessness and usually can't help but do so with smugness and sanctimony. Trump supporters usually defend it as Trump's way to communicate directly to the people and unencumbered by a hostile media and not subject to its filter.

Most of the time, his comments don't have real consequences beyond the political. They create some headlines for a few days and amp up his base, but it eventually dies down without incident or tangible consequences.

But sometimes they do have consequences. There's a reason why "no comment" is the standard answer about ongoing criminal prosecutions and litigation.

And again as with the NFL protests, I think this is politically smart for Trump, because the outcomes reinforce his narrative. But if you actually care about terrorists and deserters getting into serious trouble, then it's a bad thing.

 

I find the defense of this sentencing based upon a political candidate's stated views ... response to query, by the way ...

to be shameful.

The Justice system is supposed to be void of political favors ... and yet ... a military JAG has succumbed? That's not only weak, it's dangerous.

The crime has an array of punishment associated with it ... and this perpetrator got that absolute BARE minimum which is to say, the judge filled the square, but justice was hardly served.

The deserter acted not only out of a primal fear of being in combat ... but actively worked against The United States ... moreover, his desertion/recovery efforts cost dearly.

This was a POOR sentencing and has rendered the UCMJ as almost trivial ... this isn't the only act against the UCMJ and justice and proper behavior ... but it's the most recent.

 

The problem is that it wasn't a political candidate's views. If it had been limited to that, it likely wouldn't have impacted the judge's decision. The judge suggested that when he refused the defense's motion to toss the case. The problem is that it was a President making the comments as President and as the commander in chief. Something similar happened in another case that Obama decided to stick his nose into.

 

I thought POTUS essentially said "no comment" ...or at least "no change" but didn't repeat his answer as a candidate.

Regardless.

If this judge ... who is insulated by the military institution, btw ... The Senate confers Flag Officer Status ... can't make a decision irrespective of WHO is CINC ... then he needs to resign with an apology for all the benefits he was afforded as such a JAG.

Does he really think being on Trump's "bad list" ... or Obama's "bad list" is materially relevant? Perhaps he has ambitions of being the DOD's "Top JAG" in the Cabinet ... whereby SUCH history of fawning WOULD confer "good boy" status to a POTUS without integrity.

 

"No change" is incorporating his previous comments into his current position.

The problem is that the appearance of command influence is improper. It doesn't have to actually exist. If the commander in chief acts like a drunk at a bar spouting off about the news, it looks bad, and a judge is going to want to make it clear that he's not ruling in a similar manner. Would I have done the same? No. But it wasn't a legally crazy thing to do.

Regardless of what he thinks, the law thinks it is. In fact it thinks even the appearance of it is.

 

But the bottom line is this judge subverted justice to poke the CINC in the eye.

If it were up to me, he’d be demoted to O-3 and retired.

 

Here is a McClatchy article on this general topic. How saying something at the right time, on the right topic, works to Trump's benefit, as opposed to saying nothing --

"Democrats decided 16 months before the 2018 election how they would start winning races again. Gathered in a small Virginia town on a sweltering July day, Chuck Schumer, Nancy Pelosi and their lieutenants laid out a “Better Deal" agenda focused on middle-class jobs and higher wages — a vow, they said, that their party would never again waver from a laser-like focus on the economy.

Donald Trump makes some promises difficult to keep.

Just days later, the president declared on Twitter that transgender men and women were banned from the military. His action drew a swift rebuke from Democrats, who rose in unison to denounce the president over the newest front in a cultural — not economic — fight.

The pattern would repeat itself through the summer and into the fall. Whether it was his response to the Charlottesville white nationalist march or his condemnation of NFL players who knelt during the anthem to protest police brutality, Trump forced Democrats onto the battlefield of his choosing.
* * *
“As much as I’m appalled by the daily actions from the Oval Office, I have to admire the president’s ability to keep us talking about anything other than jobs and economic well-being,” said Democratic Rep. Jim Himes of Connecticut. “If we keep falling for that, we will pay a huge political cost.”
* * *
To many Democrats, Hillary Clinton’s campaign was too fixated on Trump’s moral failings and obsessed with the Republicans’ litany of rhetorical offenses. But some worry that a singular focus on jobs is simply too hard to maintain. Trump is good at picking out divisive cultural issues and mainstreaming them. And while Democrats doubt his provocations are part of a grand strategy, they say he has a rare instinct for choosing fights that will thrill his base. (Said Ohio Democratic Party Chair David Pepper, “When he’s engaging in divisive culture war fights, that’s when he seems the happiest.”)

A month after the “Better Deal” rollout, Trump leaned into his most controversial fight yet, saying there was “blame on both sides” between white nationalists who rallied in Charlottesville and the people who showed up to protest hate groups.

In a case like that, Democrats felt morally compelled to respond....."
​

http://www.mcclatchydc.com/news/politics-government/article182495486.html

 

You don't know this. He might also be a conscientious judge who's trying to faithfully apply the law as it was handed down to him. Keep in mind that he heard the evidence and knows the law at issue.

Also, when Obama shot off his mouth about the sexual assault cases and caused a similar result, did you tear the judge a new one?

 

From a political standpoint, I think McClatchy is right.

 

This speaks to why a POTUS should never comment on an individual case, right?

 

Generally, yes.

It's true that some lawyers comment on ongoing litigation and cases, but this is very much of a "don't try this at home" issue. It takes real expertise to know what can be said without screwing up the case. Having said that, Obama was a lawyer and screwed it up in that sexual assault case, so it not only takes general expertise, it takes expertise specific to the case at hand.

 

I think we can all agree that Bergdahl committed a serious crime, and that he deserves to do time for it.

But sometimes, the guilty get away with crimes because we live under a government with limited powers. Of relevance here, the Constitution gives criminal defendants the right to a fair trial governed by principles of due process. This right benefits everyone -- even those who are obviously guilty, and even those before military tribunals.

It is hard to fathom a clearer case of improper influence. The judge's direct-chain superior -- the CINC, in fact -- predetermined that the defendant is guilty and deserves to be punished harshly. That can't help but put pressure on the judge to impose a harsh sentence, casting doubt over the government's ability to provide a fair trial. Recognizing this, the judge declined to impose a harsh penalty, which he probably would have done had President Trump kept his trap shut.

A decent argument can be made that the judge should have dismissed all charges against Bergdahl. The judge instead decided to put his neck on the line by finding Bergdahl guilty. Military law experts seem to agree that this was on the aggressive side of what may be defensible on appeal.

President Trump is now making things worse by commenting on the verdict, jeopardizing Bergdahl's ability to get a fair hearing on appeal. It is mind-blowing that the president cares more about riling up his base than he does about bringing a criminal to justice.

My prediction is that the ultimate result will be that Bergdahl walks, with an honorable discharge and a full pension. That will be a travesty, and it will be 100% Donald Trump's fault.

 

It's fairly clear that Bergdahl was a deserter and needs to be punished as such. If any of Trump's actions resulted in reduced punishment that is unconscionable.

 

I'm sure it's only my ignorance SH, but which do you deem unconscionable, Trump's actions or the judge considering them in rendering the punishment?

 

Trump's actions. Per NJLonghorn, the judge has to consider them.

Bergdahl deserves to be doing jail time as a traitor.

 

Is that not the suggestion? "Because POTUS said 'no change' about his stance on this case before it was adjudicated, I'm making this decision"

Isn't that what YOU said above?

 

what an absolute crock.

This may happen (deserter walks/ et al as you suggested) ... but that will have nothing to do with POTUS and everything to do with a failed application of the UCMJ.

Need we chew the cud on the varied application of law regarding Secrets? One dude taking photos of a submarine ... A SOS absolutely the cause of Secrets getting out?

 

What I'm saying is that you don't know the judge's intentions. You think he did this out of spite. What I'm telling you is that instead of assuming that, you should consider the fact that he's bound by rules and laws that govern what he does.

 

My guess was that he was talking out his *** when he commented as a candidate. I don't think he knew the potential consequences of his words but was just spouting off like he did when he said NATO was obsolete. However, his more recent comments are surely being made with knowledge that they could impact the case.

Nevertheless, like I said before, it's politically smart. It's going to play well in the Rust Belt, and most of his supporters are going to blame the injustice that's occurring on the judge who was just trying to do his job even though it should be blamed on Trump. Hell, it's (so far) working on ShAArk, who's much sharper than your average voter and is having it explained to him.

 

It’s not “working on SHAARK”

The JAG shouldn’t have made reference to the CINC’s comments if they weren’t relevant to his decision.

If they were, then he’s weak and shouldn’t be there. Do the right thing. Period.

He had his chance and he blew it ... further he blamed someone else for his failure.

 

Is the CINC just a ceremonial position from your perspective? I've always seen the role as the top of the food chain when I was in the military. If you agree, them I'm not sure how his comments would ever be irrelevant.

 

Sorry, Bro. It worked like a charm. No offense, but it definitely did. And prior to practicing law and understanding what a judge's job is, it would have worked on me too.

They were relevant to his decision.

 

I reckon you are Sorry.

Where is the requirement of this JAG to include anyone’s remarks about this case?

No one can point to where the CINC can black ball him, even, for crying out loud.

He faltered.

Kicker is ... it’s clear he wanted Trumps remarks to be “relevant” so as to give him the opportunity.

If he was more interested in justice, the sentence would have been much different.

 

The issue of Undue Command Influence ("UCI") is set forth in a detailed JAG manual. The manual is basically a collection of precedents from from prior cases, setting forth general principles that then must be applied to later cases. Among the fundamental principles are the following:

• Even if the judge does not believe he or she was influenced, even an "appearance of impropriety" mandates a finding of UCI. In other words, the defendant is entitled to a trial that (a) is fair and (b) appears to be fair.

• Along a similar vein, UCI rules apply even if the judge feels that the command influence did not result in unfairness, if the judge feels that the command influence had the "potential to cause unfairness".

• If the defense shows conduct that can reasonably be interpreted as command influence, the burden shifts to the prosecutor to disprove command influence beyond a reasonable doubt. This is huge. The government must PROVE BEYOND A REASONABLE DOUBT that there is no APPEARANCE of impropriety.

• On appeal, the reviewing authority will analyze whether the judge removed "any residual taint" of UCI. If not, the conviction must be overturned.

To be fair, there are lots of exceptions and caveats to these principles, and I'm not qualified to address them in detail. Suffice it to say that I'll defer to the military-law experts, who all seem to be saying that the defense has made a strong case for UCI.

 

Nor am I and wouldn't even care to trod that path anyway ... way too much legalese which a good litigator could successfully argue both sides of the same coin.

I've already stated my position; this Col Nance is either a political hack who was looking for a reason to subvert justice by blaming DJT ... or he's an incompetent JAG officer.

Yeah, I'd tell that to the guy's face. I don't need to be intimately familiar with JAG ops manual to know this.

 

Here's the problem. It's the job of a judge to look at the law as it's handed to him and apply it. If the law requires him to consider command influence or comments, then it's his job to do so. If you want to sit on the sidelines and not trod that path, you have that luxury. A judge doesn't.

Again, or he's just a judge trying to do his job.

Yep, who the hell cares about manuals and laws or judges? Just toss the guy out of a plane with no parachute.

Yeah, I think Trump's rap worked on you very well.

 

On issues of jurisprudence, a conservative is someone who believes in the application of legal principles to resolve disputes, result be damned. A liberal is someone who chooses the desired result, then searches for a way to make the law fit that result.

On this issue, @ShAArk92 is an unabashed liberal.

 

Ouch.

 

LOL ... sure. Whatever.

We keep talking about in inside/outside of a 2 3/8" pipe ...

I'm not suggesting the guy should have violated the law ... I'm stating there's no cause to blame anyone not involved in the court. Seems like it was his job to determine the sentencing and he went with the absolute most lenient ... btw, sounds like this is reviewable by a General ... who can make the sentencing EVEN more lenient???

The world is inverted, I tell you what. A deserter who directly caused the injury/death of other service members in their effort to rescue what they thought may have been a capture situation ... a guy who's barter for release from capture included release of 5 really bad actors ... a guy who has actively worked in traitorous actions against These United States ...

and he's walking among us.

Where is the justice in that?

 

What if the law says you should consider (or "blame" as you call it) the acts of someone not involved in the court?