State News

Defense says Bergdahl can't get fair trial because of criticism from Trump

Posted February 13, 2017 10:32 a.m. EST
Updated February 13, 2017 5:32 p.m. EST

— Lawyers for Army Sgt. Bowe Bergdahl tried Monday to convince a judge that he cannot get a fair trial on charges of desertion and misbehavior before the enemy because of highly charged statements made by President Donald Trump.

Bergdahl is scheduled for trial in April and could face a life sentence if convicted of misbehavior before the enemy. He is accused of endangering the lives of soldiers who searched for him after he walked off his post in Afghanistan in 2009.

Defense attorneys argue that Trump violated Bergdahl's due process rights by repeatedly calling him a "traitor" and making other harsh statements about the soldier.

The defense motion, filed within hours of Trump taking office last month, cites more than 40 instances of Trump's criticism at public appearances and media interviews through August 2016. It includes comments from his Twitter account, published news articles and a 28-minute video that repeatedly shows Trump on the campaign trail calling Bergdahl "a no-good traitor" and suggesting he should be shot or dropped from an airplane into Afghanistan. At one point, Trump acted out an execution and said that's how traitors used to be handled.

Bergdahl appeared to be uneasy while four minutes of the video played in court. Col. Jeffery Nance, the military judge overseeing the case, didn't allow the whole video to be played.

"He was uncomfortable," defense attorney Eugene Fidell said of Bergdahl outside of court. "I felt very badly having to subject him to seeing this Niagara of abuse that President Trump heaped on him for months and months and months."

His attorneys argue that potential jurors may feel obligated to agree with the new president and would have a hard time ignoring what he said.

Prosecutors contend that any reasonable observer would understand that Trump's comments amounted to campaign rhetoric and should not be taken literally. They argue that Trump's use of the term "traitor" was not meant in the legal sense but in a conversational way.

They also said that, because all of the comments were made before Trump became president, none of it amounts to undue influence from the chain of command. Trump's real target was former President Barack Obama's handling of Bergdahl's release, prosecutors said.

"That doesn't give President Trump a license to just sort of shoot all the civilians," defense attorney Eugene Fidell said outside of court Monday. "It doesn't work that way. You cannot treat human beings as road kill on the way to the White House, and frankly, that's what President Trump did."

Nance didn't rule on the motion, but he did express concern about Trump's statement on the campaign trail that he wanted to review the case if he was elected.

"He's going to take an active interest in something that he's basically screwed up," Fidell said.

Bergdahl, who is from Idaho, has said he walked off his post to cause alarm and draw attention to what he saw as problems with his unit. He was held captive by the Taliban and its allies for five years.

The Obama administration's decision in May 2014 to exchange Bergdahl for five Taliban prisoners prompted some Republicans to accuse Obama of jeopardizing the nation's safety.