A military judge on Friday rejected defense claims that U.S. Army Sgt. Bowe Bergdahl cannot get a fair trial after Donald Trump, when he was running for president, repeatedly called the Idaho native a traitor and said he should be pushed out of a plane without a parachute.
Trump’s comments also included saying in 2015 that Bergdahl “should be shot” and that “in the good old days he would have been executed.” The judge, Army Col. Jeffery Nance, said the statements were troubling. However, Nance said they were “clearly made to enflame the passions” of voters against Democrat Hillary Clinton but do not prevent Bergdahl from receiving a fair trial.
“No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial,” Nance wrote in his eight-page decision.
Defense attorney Eugene Fidell told the Idaho Statesman his team was “very disappointed” in the ruling.
“President Trump’s long vilification of Sgt. Bergdahl raises profound issues for the integrity of the military justice system and, more broadly, the rule of law in our country,” Fidell said.
On Monday, Fidell said, he will ask the U.S. Army Court of Criminal Appeals to overturn the decision.
A Hailey, Idaho, native, Bergdahl is scheduled to go to trial April 18. He faces charges that he endangered the lives of soldiers who searched for him after he walked off his post in Afghanistan in 2009.
The judge said it was too early to know whether potential military jurors heard Trump’s comments or were influenced by them.
“This is simply not a matter than can be ascertained at this point in the proceedings,” Nance wrote.
He also rejected claims that Trump’s comments amounted to unlawful command influence, a legal concept where a person of command authority exerts pressure or appears to place pressure on military judicial proceedings.
During 512 days of campaigning for president, Trump referred to Bergdahl 65 times and called him a traitor at least 45 times. Trump called Bergdahl a “horrible, terrible, dirty rotten traitor,” a “whack job,” a “bum” and a “very bad person,” among other insults.
Nance also noted that as president, Trump has not commented on Bergdahl nor the court-martial proceedings against him.
The judge said there was strong circumstantial evidence “that his comments were nothing more than inflammatory campaign rhetoric.”
Nance said he was not convinced, either, that Trump’s comments prejudiced Bergdahl’s case because of unfair pretrial publicity. He said that could not be determined until potential jurors are questioned as part of the pretrial procedure.
Trump’s comments, he said, were always couched in terms of Clinton and the Obama administration making a “bad deal” for the release of Bergdahl in exchange for the release of five “really bad guys” held by the U.S.
“The name calling and characterization of the accused’s actions were designed to make that contrast, and the contrast between Mr. Trump and his political opponents, as stark as possible. The accused was merely the foil for delivering that political message,” Nance wrote.
Still, the judge said the issues raised make it a case “perhaps unique in all the annals of military justice.”
“We have a man who eventually became president of the United States and Commander in Chief of all the armed forces making conclusive and disparaging comments while campaigning for election about a soldier facing potential court-martial for actions that had already captured the attention of the public,” Nance wrote.
As a result, the judge said he will have lawyers on both sides create a questionnaire on the subject for potential jurors. He said he will also allow liberal questioning of jurors as they assemble the panel that will decide Bergdahl’s fate.
John Sowell: 208-377-6423, @IDS_Sowell