FORT BRAGG, NC -- The military judge presiding over Army Sgt. Bowe Bergdahl's desertion case paused the sentencing Monday to consider whether comments by President Donald J. Trump have unfairly influenced the case.
Bergdahl's defense team had previously raised a motion to dismiss the case back in January, arguing that then-candidate Trump's comments calling Bergdahl a "traitor" and suggesting he should be shot or thrown out of an airplane without a parachute made it impossible for the former prisoner of war to get a fair trial.
Col. Jeffrey Nance, the judge overseeing the case, denied the motion. Although the presidential candidate's comments were "disturbing and disappointing," they did not amount to unlawful command influence, Nance ruled.
Defense attorney Eugene Fidell renewed the motion Monday, the day Bergdahl's sentencing was set to begin. This time, Fidell pointed to comments the president made to reporters last week when asked about Bergdahl.
"Well, I can't comment on Bowe Bergdahl because he’s -- as you know, they're -- I guess he’s doing something today, as we know. And he's also -- they're setting up sentencing, so I’m not going to comment on him. But I think people have heard my comments in the past," Trump said Oct. 16, according to an official White House transcript.
Fidell argued the answer amounted to endorsement - this time, by the Commander and Chief of the United States, rather than a blustering candidate - of his previous criticism of Bergdahl. The defense team played a clip of Trump at a campaign rally before his election, expressing incredulity at the idea that Bergdahl could end up not serving time in prison for desertion and suggesting Bergdahl should be shot.
"If I get in, we will review his case, I assure you," he told the cheering crowd.
Fidell argued that Trump's comments in the Rose Garden Oct. 16 "reconfirmed the campaign trail words and deeds."
Bergdahl has already pleaded guilty to both desertion and misbehavior before the enemy. The Hailey native was captured by the Taliban after walking off his post in Afghanistan in 2009, and spent five years as a prisoner of war before being freed in 2014.
KTVB traveled to North Carolina to cover Bergdahl's sentencing from the courtroom.
Bergdahl told Nance at the start of the hearing that he was not seeking to withdraw his plea. He arrived at the courthouse Monday wearing the Army's dress blues uniform, and spent much of the hearing looking down at the table in front of him.
He faces up to life in prison.
Fidell argued that the only way to undo the unfair influence of Trump's comments would be for Nance to agree not to sentence Bergdahl to any time behind bars.
"Nothing less than public confidence in the administration of justice is at stake," Fidell warned. "Taking confinement off the table is absolutely essential if the integrity of the military justice system is [to be] preserved."
But Maj. Justin C. Oshana, the prosecutor, argued that Trump's Rose Garden response - "but I think people have heard my comments in the past" - did not amount to improper influence. Instead, the words "recognize that [the comments] were made and that people had heard them," he said.
Oshana added that the president did not indicate that he still held the same opinion of Bergdahl's case when he alluded to his previous statements
Nance seemed unsatisfied with that explanation, calling Oshana's interpretation "strained."
Although the judge said he considered Trump's pre-election statements to be "campaign rhetoric designed to embarrass a political opponent," the same standard would not apply once Trump was elected President.
Oshana also pointed to a White House statement on military justice released Friday ahead of Bergdahl's hearing.
"Military justice is essential to good order and discipline, which is indispensable to maintaining our armed forces as the best in the world. Each military justice case must be resolved on its own facts," the statement reads. "The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations. There are no expected or required dispositions, outcomes, or sentences in any military justice case, other than those resulting from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law by officials exercising their independent judgment."
Nance told Bergdahl and the attorneys that his own judgment had not been compromised by what Trump said. He said he had carefully avoided news about Bergdahl's case, and had not seen Trump's comments until they came up in the defense motion.
"I don't have any doubt whatsoever I can be fair and impartial," he said.
But under military law, even the appearance of influencing or trying to influence a decision is barred, regardless of whether the attempt at pressure is unsuccessful. Nance did not immediately rule on the motion.
Bergdahl's case has drawn controversy since his release in 2014, secured as part of a prisoner swap with the Taliban. Officials who had at first praised the soldier's rescue criticized then-President Barack Obama's decision to free five Taliban members in exchange for Bergdahl, especially once details of his desertion came to light. The town of Hailey canceled a planned celebration of his release after receiving threats.
Many others, including members of his own platoon, say Bergdahl's disappearance placed other soldiers in Afghanistan at risk as the Army scrambled to find him. According to the Associated Press, three service members were severely injured while looking for Bergdahl.
Bergdahl told investigators he snuck away from his outpost in 2009 with plans to run about 20 miles to Forward Operating Base Sharana in order to bring attention to what he saw as serious issues and leadership mistakes within his unit.
Bergdahl told an Army investigator the plan was to trigger the Army's missing soldier alert DUSTWUN - shorthand for Duty Status Whereabouts Unknown - in order to secure an audience with a general to voice his concerns.
"Because if I am willing to risk leaving the wire at a defense point, in the middle of a war zone, that we have been attacked at, that we have been blown up at, on multiple occasions, if this guy is willing to risk doing that, and then shows up again at the FOB, [the general] is going to want to know why and he is going to want to listen to this guy," Bergdahl told now-Lt. Gen. Kenneth Dahl in 2015, referring to himself in the third person. "And he has a reason to do it, because this guy has gone out of his way. He has risked his own personal safety. He has to have a good reason for it. He is going to ask me, “Why?” He is going to ask that person, “Why?” That person is going to say, 'Sir, these people, the BC, the sergeant major, they are unfit their positions from what I have seen.'"
The sentencing will pick back up Wednesday at 10 a.m., with no court held either Tuesday or Friday. Testimony is slated to begin next week.
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