President Donald Trump’s campaign-trail criticism of Army Sgt. Bowe Bergdahl, while “problematic,” hasn’t prevented the soldier from getting a fair trial on charges that he endangered comrades by walking off his post in Afghanistan in 2009, a military judge ruled Friday.
Bergdahl’s lawyers had argued that Trump violated their client’s due-process rights by repeatedly calling him a “traitor” and that the judge should dismiss charges of desertion and misbehavior before the enemy. Bergdahl is scheduled for trial in April and could face life in prison on the latter charge.
The Judge, Army Col. Jeffery Nance, wrote in his ruling that Trump’s comments were “disturbing and disappointing” but didn’t constitute unlawful command influence. Nance agreed with prosecutors’ arguments that Trump’s comments amounted to campaign-trail rhetoric, and the judge wrote the comments shouldn’t harm potential jurors’ impartiality.
“The accused was merely the foil for delivering that political message,” Nance wrote. “All reasonable members of the public and potential panel members will know that was what he was doing and will not allow the rhetoric to affect their impartiality.”
Nance did say, however, that he would allow defense attorneys wide leeway to question potential jurors about Trump. He said they can renew their request to dismiss the charges once they’ve sought to find out how Trump’s comments affected potential jurors.
Nance wrote: “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. … The Court recognizes the problematic potential created by these facts.”
Bergdahl’s lead defense attorney, Eugene Fidell, said that he planned to appeal Nance’s ruling and would “pursue the matter vigorously.”
White House spokesman Michael Short declined comment.
The defense’s motion, filed shortly after Trump was sworn in as president, cites more than 40 instances of Trump’s criticism at public appearances and media interviews through August 2016. Defense attorneys argued that it would be hard for potential military jurors to ignore what their commander in chief said.
Prosecutors argued that Trump’s comments were campaign rhetoric aimed at actions taken by President Barack Obama’s administration to bring Bergdahl home after he was held captive for five years by the Taliban and its allies. Obama’s decision in May 2014 to exchange Bergdahl for five Taliban prisoners prompted some Republicans to accuse the president of jeopardizing the nation’s safety.
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