Friday, November 3, 2017

A Note On Trump’s “Mitigation Evidence” For Bergdahl


But why was what Trump said in characterizing Bergdahl and what punishment he wished for him “mitigation evidence” for Bergdahl?

from Noah Rothman:

.... Divorcing this decision from the politics of the matter is impossible. Bergdahl’s attorneys insisted that their client’s case should be dismissed outright because Donald Trump had attacked the defendant on the campaign trail as a “dirty, rotten traitor” who should face execution. They argued that Trump interfered in the process, but the motion was dismissed. The presiding judge, Army Col. Jeffery R. Nance, said he felt no pressure from the White House to deliver a harsher sentence. Quite the opposite, in fact. On October 30, Nance appeared to imply that his sentencing would send a message to the president. “I will consider the president’s comments as mitigation evidence as I arrive at an appropriate sentence,” he said....

I take mitigating evidence to be evidence that logically goes to lessening the severity of a sentence such as it being a first offense, or the accused being youthful or manipulated, or otherwise exemplary and so on. 

So the evidence is of factors or circumstances that create some sympathetic understanding for the accused and may go to soften the harshness of the crime, or that may add some weight of overall mitigating understanding. And thus this evidence can lead to the leavening of sentence.

Therefore, the answer I come up with to my own question is that Judge Nance reasoned that in his excoriating public humiliation Bergdahl suffered and suffers a lot. Trump’s comments, carrying with them the force, authority and power, such as they may be in his case, of the American presidency, served extraordinarily to magnify that public humiliation and therefore Bergdahl’s suffering and were, therefore, effectively some punishment. As such, they could be considered in weighing what was an appropriate sentence, and in departing from what otherwise might have been a harsher sentence.

In this, if so, in what he wished on Bergdahl, then surely Trump hung himself by his own words as they created the result opposite from what he said he wanted.

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