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ANALYSIS

Trump called Bergdahl a 'dirty, rotten traitor,' now a judge has to decide if it matters

By COREY DICKSTEIN | STARS AND STRIPES Published: February 10, 2017

WASHINGTON – Attorneys for Sgt. Bowe Bergdahl will spar with Army prosecutors Monday over disparaging comments about the accused deserter made by President Donald Trump on the campaign trail and whether they will have an impact on the soldier’s ability to receive a fair trial.

Trump made more than 60 negative references to Bergdahl during public campaign rallies and speeches between June 2014 and August 2016, calling the former Taliban captive “a dirty, rotten traitor” and opining that he should be executed or sent back to his captors. Army judge, Col. Jeffery R. Nance, will have to decide whether those statements by Trump before he was elected president of the United States could affect the soldier’s court-martial.

Bergdahl’s attorneys said they will argue Nance must dismiss the case in its entirety because Trump’s comments denied the sergeant his right to due process and they amounted to unlawful command influence, because the commander in chief has made it clear that he wants the soldier punished. Prosecutors, in court documents filed this week, wrote Trump’s comments have no impact on Bergdahl’s ability to receive a fair trial and argue the case cannot be dismissed over statements made by a private citizen, even if that individual later becomes president.

Monday’s pre-trial hearing at Fort Bragg in North Carolina is the last hearing on the docket ahead of the court-martial scheduled for April. But Nance is expected to add additional hearings to that docket on Monday, and he might push back Bergdahl’s trial date for a third time since the Army formally charged him with desertion and the more-serious misbehavior before the enemy in 2015.

Nance is unlikely to make a ruling during the hearing -- scheduled for Monday and Tuesday -- on the issue of Trump’s comments. The judge has rarely issued rulings directly from the bench in Bergdahl’s case. When the soldier’s attorneys argued in August that Nance should dismiss the case over comments made by Sen. John McCain, R-Ariz., the judge waited more than one month to rule that McCain’s comments were “ill advised” but did not necessitate dismissal of the case.

Prosecutors dismissed Trump’s comments as campaign-trail rhetoric. Lead prosecutor Maj. Justin C. Oshana wrote in the court filing that servicemembers would not be impacted by the language, because they would understand it was largely aimed at criticizing President Barack Obama and his decision to trade five senior Taliban leaders who had been detained at the U.S. detention facility at Guantanamo Bay, Cuba for Bergdahl’s release in May 2014.

“Any observer would be aware of Mr. Trump’s status at the time that he made the statements, and of the fact that he did not have any position within the government or the military,” Oshana wrote in the court filing. He added the comments “were designed to attack President Obama and highlight Mr. Trump’s ability to make better deals, a consistent theme of his campaign.”

Bergdahl’s lead attorney, civilian Eugene Fidell, wrote in a response to Oshana’s filing that the intentions and the timing of Trump’s statements are “irrelevant.” Anyone serving in the military – including prospective jurors, witnesses and officials overseeing the case – could be influenced to punish Bergdahl because that is what Trump wants, he added.

“There can be no doubt about what President Trump thinks of Sgt. Bergdahl,” Fidell wrote. “In a democratic society, it is a core premise that statements made by those who seek elective office must be taken seriously, especially when those statements are made repeatedly.”

Trump has not made a public statement about Bergdahl since August.

Bergdahl, 30, faces 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.” The misbehavior charge carries a potential life sentence. He has yet to enter a plea to those charges.

Bergdahl remains on active duty, assigned to a desk job at Joint Base San Antonio in Texas.

The soldier has admitted to Army investigators that he intentionally left his eastern Afghanistan post in June 2009, but he denied he intended to desert his unit. Instead, Bergdahl said he wanted to cause a disturbance that would place him in front of senior leaders to express complaints about his commanders.

He was captured within hours of leaving Observation Post Mest and held for five years by the Taliban-aligned Haqqani Network in Pakistan before he was released in the controversial swap authorized by Obama.

dickstein.corey@stripes.com
Twitter: @CDicksteinDC
 

In a July 7, 2016 file photo, Sgt. Bowe Bergdahl, right, arrives with his military lawyer, Lt. Col. Franklin Rosenblatt, for a legal hearing at the courtroom facility, on Fort Bragg, N.C.
ANDREW CRAFT/THE FAYETTEVILLE OBSERVER

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