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Judge to decide whether to end case against Bergdahl because of Trump comments

Posted October 23, 2017 8:06 a.m. EDT
Updated July 13, 2018 1:40 p.m. EDT

— A military judge on Monday suspended the sentencing hearing for Army Sgt. Bowe Bergdahl to determine whether charges against him should be dismissed because of critical comments made by President Donald Trump.

Bergdahl pleaded guilty a week ago to charges of desertion and misbehavior before the enemy for walking off his remote post in Afghanistan in 2009.

His defense attorneys have repeatedly argued that he couldn't receive fair treatment because Trump roundly criticized Bergdahl last year while campaigning for president. Trump called Bergdahl a traitor and suggested he should be shot for leaving his post.

Col. Jeffrey Nance, the military judge handling the court-martial, previously denied a defense motion seeking a dismissal over Trump's comments, saying they were made while he was a candidate, not commander-in-chief, and were political rhetoric primarily aimed at President Barack Obama, who traded five Taliban prisoners to gain Bergdahl's release in 2014.

But defense lawyers on Monday showed a video of Trump answering a reporter's question about Bergdahl during a news conference last Monday. Trump said he couldn't talk about Bergdahl before adding, "But I think people have heard my coments in the past."

Defense attorney Eugene Fidell argued those comments constitute unlawful command influence, adding that prison time should be taken off the table if charges aren't dismissed.

Prosecutors maintained that nothing has changed since Nance denied the motion earlier, but the judge noted the "but" in Trump's response to the question last week indicates that the opinions he had on the campaign trail may have carried over to the Oval Office.

Late Friday, the White House released a statement saying each case in the military justice system "must be resolved on its own facts."

"The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations," the statement read. "There are no expected or required dispositions, outcomes, or sentences in any military justice case, other than those resulting from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law by officials exercising their independent judgment."

Greg Rinckey, a former military judge, said Bergdahl's defense has a valid argument.

"I think there's more legs to stand on now than in the past. It's not the same motion," Rinckey said. "Not only was it said previously when President Trump was a candidate, now he's reiterating his feelings as a sitting president. So, I think it does raise some unlawful command influence issues that the judge is going to have to deliberate on very judiciously."

Nance said Monday that he hasn't felt any outside influence in the case and would provide Bergdahl with an impartial hearing, but he wants to take a couple of days to consider the defense motion. The sentencing hearing is expected to resume on Wednesday.

Bergdahl was captured by the Taliban in 2009 after abandoning his post, and he was held captive for five years. During that time, he was caged, kept in darkness and beaten, and he said he tried to escape more than a dozen times.

"I understand that leaving was against the law," Bergdahl told Nance during his plea. "At the time, I had no intention of causing search and recovery operations."

Monday's sentencing hearing was expected to feature dramatic testimony from soldiers who were badly hurt while they searched for Bergdahl.

Nance has wide discretion is sentencing if he proceeds with the case. He could put Bergdahl in military prison for the rest of his life – the maximum punishment for misbehavior before the enemy – imprison him for a lesser time or determine that the five years he spent as a prisoner of war were punishment enough.