Trump’s comments about Bergdahl 'disturbing,' judge says

Sgt. Bowe Bergdahl leaves the courtroom at Fort Bragg, N.C., on Aug 22, 2016.


By COREY DICKSTEIN | STARS AND STRIPES Published: February 13, 2017

FORT BRAGG, N.C. — Disparaging remarks made by President Donald Trump on the campaign trail about accused Army deserter Sgt. Bowe Bergdahl are “disturbing,” the military judge overseeing the soldier’s court-martial said Monday.

The judge, Army Col. Jeffery R. Nance, was especially concerned about Trump’s 2015 pledge to review the case if he was elected president. Such a comment has the potential to put a “black eye” on the public’s confidence in the court-martial process, Nance said after defense attorneys played a video containing the statement in the courtroom during the pre-trial hearing.

Nance must determine whether some 60 derogatory comments made by Trump between June 2014 and August 2016, such as calling Bergdahl “a dirty, rotten traitor” and opining he should be executed or dropped from an airplane to the Islamic State group, impacted the soldier’s right to a fair trial.

Attorneys for Bergdahl filed a motion seeking the case’s dismissal over those comments within hours of Trump taking office Jan. 20. Nance did not say how long he expected to consider the matter before issuing a ruling.

Bergdahl’s court-martial on charges of desertion and the more serious misbehavior before the enemy is scheduled to begin April 18. During the hearing Monday, Nance declined to push back the trial’s schedule but he indicated it was likely to be delayed for the third time.

Bergdahl’s attorneys argued the soldier cannot receive a fair trial with Trump as commander in chief, because the president has well established his negative opinion of him. Potential jurors could believe they must convict Bergdahl because their president wants him punished, the soldier’s lead attorney Eugene Fidell said.

“President Trump decided to use Sgt. Bergdahl as a tool in his quest for the White House,” he said. “… It is perfectly clear there has never been a case like this.”

Prosecutors dismissed Trump’s statements as mere campaign rhetoric. But Fidell argued Trump’s statements cannot be ignored and cited examples of high-profile campaign promises that he has already taken steps to fulfill, including his pledge to build a border wall and his now-stalled executive order temporary banning immigrants from seven Muslim-majority nations.

“President Trump has assured the country that he does not kid,” Fidell said. “…How odd would it be if … on one breath he’s expected to be taken with the upmost seriousness and on the other was thought simply to be kidding.”

Lead prosecutor Justin C. Oshana argued Trump’s criticism of Bergdahl was pointed primarily at attacking President Barack Obama for his decision to trade five senior Taliban leaders held at the detention facility at Guantanamo Bay, Cuba for Bergdahl.

“Trump is certainly not the only one to criticize the deal,” Oshana said, adding there is “no evidence the president has attempted to interfere in any way, shape or form with the contents of this proceeding.”

He further argued a case cannot be dismissed based on comments made by a private citizen with no immediate tie to the military, even if that person later becomes president of the United States.

Instead of dismissing the case, Oshana said, Nance should simply allow attorneys to ask prospective jurors whether they had heard Trump’s comments and what impact those comments had made.

But Fidell argued that remedy would not go far enough to curtail the appearance of improper influence by the president.

Though Trump has not made a public statement about Bergdahl since August, the president also has not explained any of his previous comments, Fidell said.

“President Trump’s statements on the campaign trail cannot simply be chucked into the burn bag,” he said, asking the judge to consider Trump’s matter-of-fact demeanor in the video.

Bergdahl, 30, appeared uncomfortable as his attorneys shared about five minutes of the 28-minute video that they compiled with Trump’s statements. The soldier sat stiffly, glancing occasionally at the monitor. His attorneys physically consoled him several times as he listened to Trump’s criticism.

Bergdahl 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.

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 remains on active duty in a desk job at Joint Base San Antonio in Texas and he has not been held in pre-trial confinement.

Bergdahl 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 in May 2014.

Twitter: @CDicksteinDC