USA First Look

Bowe Bergdahl lawyers say Trump's comments mean he cannot get a fair trial

President Trump’s campaign-trail condemnation of Bowe Bergdahl, the soldier charged with desertion while serving in Afghanistan, could prevent him from getting a fair trial, say the Army sergeant's lawyers.

Army Sgt. Bowe Bergdahl arrives for a pretrial hearing at Fort Bragg, N.C., in January 2016.
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Can Army Sgt. Bowe Bergdahl get a fair trial after President Trump repeatedly denounced him as a traitor during the presidential campaign? No, his lawyers will argue Monday in a pretrial hearing at Fort Bragg. 

Attorneys for Sergeant Bergdahl, the US Army soldier who left his post in Afghanistan in 2009 and was captured and held by the Taliban for five years before his release in a 2014 prisoner swap, will attempt to convince a military judge that he cannot get a fair trial on charges of desertion and misbehavior before the enemy after a series of statements made by Mr. Trump on the campaign trail. 

Trump violated Bergdahl's due process rights, they say, by repeatedly referring to him as a "traitor" and making other charged statements. In October 2015, Trump called the soldier a "no-good traitor" who should have been executed. 

"There is no precedent for a candidate running for high office to go after a single individual like this," Bergdahl's lawyer, Eugene Fidell, told The New York Times in November, in reference to the more than 40 disparaging statements Trump had made about his client in media interviews and public appearances as of August 2016. "Because he is at the pinnacle of the chain of command, what he says not only has direct and indirect legal consequences but symbolic potency."

Bergdahl has been a subject of debate and controversy among Americans since his release in a prisoner swap for five Taliban in 2014, as Brad Knickerbocker reported for The Christian Science Monitor in 2015: 

Initially, Bergdahl’s return was hailed as a bit of good news in a long, costly, and increasingly unpopular war. National Security Adviser Susan Rice said Bergdahl had served “with honor and distinction.” Family and friends in Hailey, Idaho, planned a big celebration honoring his return home.

But efforts to celebrate faded, and questions soon were raised about Bergdahl’s conduct, as well as that of President Obama in arranging the prisoner swap without first notifying Congress – a violation of federal law, the nonpartisan Government Accountability Office ruled last August....

Meanwhile, some soldiers who had been in Afghanistan with Bergdahl began asserting that certain military assets – including helicopters, intelligence drones, and designated patrols – had been diverted to look for Bergdahl, resulting in unnecessary US casualties.

Throughout his campaign, Trump repeatedly called for harsh punishment for Bergdahl, including one suggestion that he should be thrown out of an airplane. He also rejected the possibility that "psychological problems" may have led Bergdahl to desert, despite a document from July 2015 showing an Army Sanity Board's conclusion that Bergdahl had suffered from a personality disorder when he walked off his post. 

After such statements, Bergdahl's attorneys argue, potential jurors might feel obligated to agree with the new president. It would not be the first time a military judge decided that a president's comments have tainted a trial: In 2013, a Navy judge issued a pretrial order that two defendants in sexual assault cases couldn't be punitively discharged if found guilty, citing public comments from Obama cracking down on sexual assault. 

But prosecutors say that any reasonable observer would understand that Trump's remarks were merely campaign rhetoric and should not be taken literally. The president's use of the word "traitor," they argue, was meant in a conversational sense, not a legal sense. 

If convicted of misbehavior before the enemy in April, Bergdahl could face a life sentence. 

This report includes material from the Associated Press and Reuters.