Bergdahl lawyers: Judge should throw out case over new Trump comment

Accused Army deserter Sgt. Bowe Bergdahl is shown in this undated file photo.


By COREY DICKSTEIN | STARS AND STRIPES Published: October 18, 2017

WASHINGTON — Attorneys for Army Sgt. Bowe Bergdahl renewed efforts to have the soldier’s court-martial dismissed, filing an 11th-hour motion Tuesday arguing President Donald Trump’s reasserted past criticism of their client makes a fair sentence impossible.

Just hours after Bergdahl pleaded guilty Monday to charges that he deserted his combat post in Afghanistan, misbehaved before the enemy and endangered his fellow troops, Trump indicated he stood by disparaging campaign trail comments that he repeatedly made about the former Taliban captive, Bergdahl’s lawyers wrote in the motion.

“President Trump’s comment [Monday] cast an impermissible shadow over this critical [sentencing] phase,” Bergdahl’s lead attorney Eugene Fidell wrote in the motion.

A pre-sentencing trial, which could last several days, is set to begin Monday at Fort Bragg in North Carolina. Bergdahl is due to be sentenced after the trial and he faces a maximum punishment of life imprisonment.

Defense attorneys had filed an earlier motion to have Bergdahl’s case thrown out over Trump’s comments, which included calling the soldier “a dirty, rotten traitor” who “should be shot.” The motion was filed Jan. 20, just hours after Trump was sworn in as president.

The judge overseeing the case, Army Col. Jeffery R. Nance, called Trump’s statements “disturbing” and potentially “problematic,” but ruled in February that the statements did not amount to unlawful command influence because Trump was a private citizen when he made them. Nance told Bergdahl’s lawyers that they could revisit the issue if Trump were to raise it while in office.

As president, Trump had not publicly mentioned Bergdahl until Monday.

Before the president acknowledged his previous criticism of Bergdahl, he initially declined to comment when asked during a news conference whether he believed his campaign trail rhetoric impacted the soldier’s ability to receive a fair trial.

“They’re setting up sentencing, so I’m not going to comment on him,” Trump said. “But I think people have heard my comments in the past.”

The White House did not immediately respond Wednesday to Stars and Stripes’ request for comment.

Fidell wrote in the motion that the president’s remark Monday “removes any doubt about whether his campaign comments reflect his current opinion.” He added Trump’s comments make it impossible for officials, including the judge, an active-duty Army officer, to punish Bergdahl fairly, because they might be influenced by the statements of their commander in chief.

Bergdahl admitted in court Monday that he left his combat outpost in Paktika province, Afghanistan, on June 30, 2009 in an attempt to walk to a nearby base to complain about problems that he perceived in his chain of command. He told Nance that his actions were “inexcusable,” as he entered a guilty plea without any pre-trial agreement with the Army to cap his potential sentence.

By military law, Bergdahl can withdraw his guilty plea before he is sentenced if he can demonstrate to the judge a legitimate reason to change his plea, Nance said Monday.

Bergdahl, 31, spent five years in the custody of Taliban-linked militants in Pakistan before he was released to the United States in a controversial prisoner exchange for five Taliban commanders who had been held in the detention facility at Guantanamo Bay in Cuba.

He was charged with “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty” in March 2015.

Bergdahl has remained on active duty since he was released, serving in a desk job at Joint Base San Antonio in Texas and has not been held in pretrial confinement.

Twitter: @CDicksteinDC