Bergdahl lawyers appeal Trump motion to top military court

Lawyers for Sgt. Bowe Bergdahl fulfilled a promise Thursday when they asked the top military court to toss out their client’s case because of disparaging comments made by President Trump on the campaign trail.

In a 314-page motion filed Thursday with the United States Court of Appeals for the Armed Forces, defense lawyers said the “unprecedented circumstances” of Trump repeatedly calling Bergdahl a traitor who should be executed constitute apparent unlawful command influence (UCI). 

“To describe President Trump’s comments about Sgt. Bergdahl as merely ‘troubling,’ ‘made without consideration of their possible impact on the trial of the accused,’ ‘disturbing and disappointing,’ and ‘problematic,’ … does not begin to vindicate the important interest in fostering public confidence in the administration of military justice,” they wrote in the motion, quoting the judge in Bergdahl’s court-martial. “President Trump’s repeated public vilification of Sgt. Bergdahl must be explicitly acknowledged as apparent UCI and decisive remedial action taken.”

If the case is not dismissed, they continued, Bergdahl should face no punishment, or his punishment should not include confinement.

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

Trump mentioned 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 that 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 thus there was no reason to dismiss the case.

Bergdahl’s lawyers then appealed to the U.S. Army Court of Criminal Appeals, where a three-judge panel ruled earlier in March in support of Nance.