President Donald Trump’s flurry of campaign-trail attacks on alleged Army deserter Sgt. Bowe Bergdahl don’t require that the charges against Bergdahl be tossed out, a military judge has ruled.
Defense lawyers for Bergdahl had argued that candidate Trump’s frequent denunciations of Bergdahl as a “dirty rotten traitor” amounted to “unlawful command influence” that made it impossible for the soldier to get a fair trial at an upcoming court martial.
Col. Jeffrey Nance ruled that Trump’s comments were political rhetoric that could not be expected to impact Bergdahl’s trial.
“The multitude of comments made by Candidate Trump is troubling. Doubtless, they were made without consideration of their possible impact on the trial of the accused. However, they were clearly made to enflame the passions of the voting populace against his political opponent and in Mr. Trump’s favor,” Nance wrote in an eight-page decision dated Friday.
The judge called Trump’s statements “disturbing and disappointing,” but concluded that remarks he made could not amount to improper influence on the trial because he wasn’t yet president and wasn’t in the military chain of command. “The statements of a private citizen, even if running for President, cannot be unlawful command or influence. No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because Candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial.”
A lawyer for Bergdahl, Eugene Fidell, said the defense is planning an immediate appeal.
“Sgt. Bergdahl’s defense team has worked through the weekend on an urgent petition for a writ of mandamus to the U.S. Army Court of Criminal Appeals. We hope to have it ready for filing on Monday,” Fidell said in a statement Sunday night. “The issues presented by President Trump’s outrageous and unprecedented vilification of a fellow citizen are important to public confidence in the administration of justice, as well as simple fairness to Sgt. Bergdahl. They should be addressed now by the appellate courts, rather than having to await the completion of what has already proven to be a lengthy and complicated trial process.”
Bergdahl went missing from his base in Afghanistan in 2009. He spent five years as a prisoner of the Taliban before being released in a prisoner swap negotiated by the Obama administration, involving the release of five Taliban fighters long held at Guantánamo Bay in Cuba. Trump was among many Republicans who denounced the trade as unwise and who questioned Bergdahl’s loyalty to the U.S.
However, few GOP leaders spoke about Bergdahl as often and vividly as Trump, who repeatedly urged the soldier be executed and sometimes “pantomimed executions by rifle and pistol shot, complete with sound effects,” the defense said in an earlier filing. Video of some of Trump’s comments was played for the judge at a hearing earlier this month.
Bergdahl was charged in 2015 with desertion and misbehavior before the enemy. He faces a possible sentence of up to life in prison at a trial set to open on April 18 at Fort Bragg, North Carolina.