Bergdahl appeals judge’s decision not to dismiss case over Trump comments
By COREY DICKSTEIN | STARS AND STRIPES Published: February 27, 2017
WASHINGTON — Lawyers for accused deserter Sgt. Bowe Bergdahl asked an appellate court on Monday to overturn a military judge’s decision not to dismiss the court-martial against the soldier over repeated, negative comments made by President Donald Trump.
During his presidential campaign, Trump made comments that included calling Bergdahl a “dirty, rotten, no good traitor” and make it impossible for the soldier to receive a fair trial because the public could perceive that anyone involved in the case, including jurors, were influenced by the opinions of their commander in chief, Bergdahl’s attorneys wrote in an appeal to the United States Army Court of Criminal Appeals. The attorneys added the appellate court should vacate the decision handed down Friday by Army Col. Jeffery R. Nance, the judge overseeing Bergdahl’s court-martial, and dismiss the case entirely or limit its outcome to no punishment.
“Justice cannot be done and public confidence in military justice cannot be maintained under these circumstances,” Bergdahl’s chief attorney, Eugene Fidell wrote in the appeal. “… President Trump’s repeated public vilification of Sgt. Bergdahl must be explicitly acknowledged as apparent [unlawful command influence] and decisive remedial action taken.”
Lawyers for Bergdahl, 30, who faces a maximum life in prison sentence on charges of misbehavior before the enemy and desertion, filed a motion asking Nance to dismiss the case within hours of Trump’s inauguration on Jan. 20. They submitted evidence that Trump on more than 60 occasions between June 2014 and August 2016 made derogatory comments about Bergdahl at campaign rallies and in public interviews. Trump’s comments included opining Bergdahl should be executed or dropped from an airplane into enemy territory.
“There can be no doubt about what President Trump thinks about Sgt. Bergdahl,” the attorneys wrote. “In a democratic society, it is a core premise that statements made by those who seek elected office must be taken seriously, especially when those statements are made repeatedly.”
But Nance declined to throw out the case in his decision Friday, nearly two weeks after Bergdahl’s attorneys and prosecutors argued the motion in a Fort Bragg, N.C. courtroom.
In his decision, Nance wrote the president’s comments as a candidate were “disturbing and disappointing” and even potentially “problematic.” However, the judge ultimately sided with the prosecutors’ assertions that they were largely campaign trail rhetoric that can be avoided by carefully screening potential jurors.
People familiar with Trump’s comments will understand they were primarily made as a political attack on President Barack Obama’s May 2014 decision to trade five senior-level Taliban members detained at Guantanamo Bay in Cuba for Bergdahl’s release, Nance wrote.
“All reasonable members of the public and potential panel members will know that was what [Trump] was doing and will not allow the rhetoric to affect their impartiality,” he wrote.
In their appeal, Bergdahl’s attorneys rejected Nance’s declaration that thorough questioning of potential jurors to determine if they had been influenced by Trump’s statements would maintain the integrity of the case.
It is the second decision by Nance that Bergdahl’s attorneys have sought to have overturned by a higher court. Last fall, they appealed to two appellate courts to have the soldier’s court-martial dismissed after Nance declined to throw out the case over comments made by Sen. John McCain, R-Ariz.
The soldier’s lawyers argued McCain, who is chairman of the Senate Armed Services Committee, improperly influenced the case by threatening to hold a hearing if Bergdahl goes unpunished.
Bergdahl’s trial is scheduled to begin April 18, but is likely to be pushed back, Nance has said.
The soldier has yet to enter a plea to charges of “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty.”
He was held for five years by the Taliban-aligned Haqqani Network in Pakistan after he was captured within hours of walking off his small combat outpost in eastern Afghanistan in June 2009.
After his release, Bergdahl told Army investigators he intentionally left Observation Post Mest, but he insisted he only intended to cause a disturbance that would place him in front of senior leadership to air concerns about his commanders. He said he had no intention of permanently deserting his unit.
Bergdahl remains on active duty in a clerical job at Joint Base San Antonio in Texas and he has not been held in pre-trial confinement.