Appeals court upholds decision not to toss Bergdahl case over Trump comments

A three-judge panel in an Army appeals court has upheld a decision not to toss out Sgt. Bowe Bergdahl’s case over comments made by President Trump during the election campaign.

In response, Bergdahl’s lead lawyer vowed to appeal to the United States Court of Appeals for the Armed Forces.

“It is really an important issue, and it ought to be addressed now,” Eugene Fidell, Bergdahl’s lead lawyer, told The Hill on Tuesday.

Bergdahl is set to face a court-martial in April on charges of desertion and misbehavior before the enemy after walking off his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.

Trump referenced Bergdahl multiple times throughout the campaign, calling him a traitor who should be executed.

At a rally in October 2015, Trump said, “We’re tired of Sgt. Bergdahl, who’s a traitor, a no-good traitor, who should have been executed.”

“Thirty years ago, he would have been shot,” he added.

Bergdahl’s lawyers argued such comments coming from the commander-in-chief compromise their client’s right to a fair trial.

But the judge in the court-martial, Col. Jeffery Nance, ruled in February that while “disturbing and disappointing,” the comments didn’t prejudice the Army’s case against Bergdahl and there’s no reason to dismiss the case.

Bergdahl’s lawyers appealed to the U.S. Army Court of Criminal Appeals, where a three-judge affirmed Nance’s decision.

In a concurring opinion, Judge Lt. Col. Stefan Wolfe raised the issue of civil-military relations when a military appellate court is asked to review conduct of civilian leaders. He also noted the difference in composition between the Army Court of Criminal Appeals, where judges are active duty, and the Court of Appeals for the Armed Forces, where judges are civilians.

But ultimately, he said, he agrees with the decision not to toss the case. 

“At this early stage of the court-martial, and given the high burden petitioner faces in obtaining an extraordinary writ, I agree with the court’s disposition of this petition,” Wolfe wrote.