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Judge says Trump's statements did not prejudice case against Bergdahl

  • Author: Richard A. Oppel Jr., The New York Times
  • Updated: February 24, 2017
  • Published February 24, 2017

A military judge in North Carolina ruled Friday that while President Donald Trump's campaign-trail calls for the execution of Sgt. Bowe Bergdahl were "troubling," his statements had not prejudiced the Army's case against the sergeant, and that he saw no reason to dismiss the serious charges against him.

Bergdahl, 30, faces a court-martial as soon as April on charges of desertion, which carries a potential five-year sentence, and endangering troops sent to search for him, which carries a potential life sentence. The charges came after he walked off his remote Army outpost in Afghanistan in 2009 and was held captive by the Taliban for five years, until President Barack Obama approved a deal to swap him for five detainees from Guantánamo Bay prison.

U.S. Army Sgt. Bowe Bergdahl leaves the courthouse after an arraignment hearing for his court-martial in Fort Bragg, N.C., on Dec. 22, 2015. (Jonathan Drake/ Reuters file)

While campaigning last year, Trump repeatedly denounced Bergdahl as a "dirty rotten traitor," and even mimicked the sound of a rifle as he pantomimed a firing squad executing him.

After Trump was sworn in as president, Bergdahl's lawyers asked the military judge handling the case, Col. Jeffery R. Nance of the Army, to dismiss the charges. They said a fair trial was now impossible given such inflammatory comments from the man who is now the military's commander in chief.

In his ruling Friday, Nance wrote that Trump's statements "were disturbing and disappointing," and carried a "problematic potential" for the case.

But the judge concluded: "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."

Bergdahl's chief defense lawyer, Eugene R. Fidell, said he would appeal the ruling to the U.S. Army Court of Criminal Appeals on Monday.

"The issues presented are of tremendous significance for the rule of law in the armed forces and the integrity of the military justice system," Fidell said.

Fidell had contended that Trump's statements constituted "unlawful command influence," which is defined in military case law as commanders or anyone with the "mantle of command authority" wrongly taking actions that influence decisions about a defendant's fate.

Since all the officers who could play a role in deciding the outcome of Bergdahl's case — including the judge and jurors — now ultimately report to Trump, they cannot be impartial in deciding guilt or innocence, Fidell argued.

A spokesman at Fort Bragg in North Carolina, where the trial would be held, did not comment on the substance of the ruling, but said the Army will "maintain careful respect for the military-judicial process, the rights of the accused, and ensuring the case's fairness and impartiality."