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Military judge denies motion to toss out Bergdahl case

A military judge overseeing Sgt. Bowe Bergdahl's case announced Monday that he will not throw out the case over President Donald Trump's comments about the soldier.
FORT BRAGG, NC - OCTOBER 30: U.S. Army Sgt. Robert Bowdrie “Bowe’ Bergdahl, 31 of Hailey, Idaho, is escorted into the Ft. Bragg military courthouse for his sentencing hearing on October 30, 2017 in Ft. Bragg, North Carolina.

FORT BRAGG -- A military judge overseeing Sgt. Bowe Bergdahl's case announced Monday that he will not throw out the case over President Donald Trump's comments about the soldier.

Col. Jeffrey Nance said the president's remarks do amount to the basis for "unlawful command influence," or an inappropriate attempt to sway the case, but that the attempted influence would neither affect his decision nor cause an outside observer to lose faith in the integrity of the military justice system.

The decision came the week after Bergdahl's defense team filed the motion to dismiss the case, pointing to the president's disparaging remarks about the Hailey native.

As a candidate, Trump told rally crowds he thought Bergdahl - who spent years as a Taliban captive after walking off his Afghanistan outpost in 2009 - deserved to be executed. Trump also vowed to use his power as president, if elected, to review the case if Bergdahl received a sentence he deemed inadequate.

The president seemed to double down on those comments Oct. 16 when asked about Bergdahl's case, telling a reporter that he wouldn't comment on the case, "but I think people have heard my comments in the past."

Nance, the military judge, said he interpreted that statement as the president reiterating the comments he had made as a candidate.

"He wanted to make sure everyone remembered what he thought should happen to the accused," Nance said.

But the judge said the president's remarks place "no intolerable strain" on the ability of the military justice system to make a fair ruling.

Nance said that he "was completely unaffected" by the president's opinion on the case, and had not even seen the comments until they came up as motions as part of Bergdahl's case.

The judge also pointed to a statement released by the White House after Trump's Oct. 16 comments, which announced that military personnel are expected to decide each ruling on the facts, and that there is no expected sentence in any case.

"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," the statement reads in part.

Bergdahl, who pleaded guilty to desertion and misbehavior before the enemy earlier this month, faces up to life in prison.

His defense attorneys had asked Nance to agree to sentence Bergdahl to no prison time, arguing it was the only possible counterweight to the damage of Trump's unlawful command influence.

With the denial of the motion, Nance signaled he would not be held to such an agreement, although he said he will consider Trump's comments as mitigation when fashioning Bergdahl's sentence.

The sentencing will continue Monday afternoon with Bergdahl unexpectedly speaking "unsworn," apologizes to military personnel who was wounded searching for him.

KTVB"s Katie Terhune was in the courtroom and will be publishing more details here very soon.