There’s little doubt about how President Trump feels about Sgt. Bowe Bergdahl, the U.S. soldier who walked off his post in Afghanistan in 2009, and got himself captured by the Taliban, and sparked a months-long military manhunt.
“A dirty rotten traitor,” is how Trump described Bergdahl, not once, but at least 65 times, according to a motion to dismiss all charges against him, filed by his attorney on Jan. 20, Inauguration Day.
Bergdahl’s court-martial, on charges of desertion and misbehavior before the enemy, is set for April. After having failed to get a pardon from President Obama, Bergdahl’s lawyer is trying another tactic: arguing that Trump’s comments over the long campaign have made it impossible for Bergdahl to get a fair trial.
One example: “We’re tired of Sgt. Bergdahl, who’s a traitor, a no-good traitor, who should have been executed,” Trump said at a rally in October of 2015. “Thirty years ago, he would have been shot.”
“President Trump transformed his rallies into a televised traveling lynch mob. Justice cannot be done and public confidence in military justice cannot be maintained under these circumstances,” Eugene Fidell wrote in his motion to a military judge in Fort Bragg, N.C.
Bergdahl’s attorney is relying on a long-standing principle of military justice: Superior officers cannot indicate the guilt of the accused before trial because military members who make up the jury may be swayed to convict.
It’s a legal principle know as “unlawful command influence,” and if President Trump, who is now commander in chief, were to repeat any of the things he said on the campaign trail, it would be a slam-dunk case, say military legal experts.
“It would be an easy case, if President Trump had made all the comments that candidate Trump had made about Bergdahl. Clearly then it would be a different scenario for the military judge,” said Cully Stimson, a senior legal fellow at the Heritage Foundation, and a former military judge himself.
But because Trump made the comments while a private citizen, and because a finding of unlawful command influence does not require the charges to be dropped, the prospects for Bergdahl to avoid trial are murky.
“The question then is not whether there is [unlawful command influence],” said Stimson, “the question is what is the remedy?”
The judge in Bergdahl’s case could take several remedial measures, such as allowing the defense more latitude in picking a jury, barring certain witnesses from testifying, or even permitting Bergdahl’s lawyers to ask potential jurors if they voted for Trump.
Under military rules, jurors have an absolute right to keep their vote secret, but they could be asked if they would be willing to voluntarily waive that right.
It’s impossible to forecast how a judge will rule, but given that Trump has said nothing about Bergdahl since he took office, the motion to dismiss seems like a long shot.
Bergdahl’s release was secured by President Obama in 2014, in a swap for five Taliban members who were being held in Guantanamo Bay.
But that could change in a single tweet, or casual comment from the president.
Just last week Trump tweeted about the case of Chelsea Manning, the former Army intelligence analyst who gave more than 700,000 classified documents to WikiLeaks, and whose sentence was commuted by President Obama.
Trump referred to Manning as an “ungrateful traitor, who should never have been released from prison.”
Were the president to be provoked into hurling a similar insult at Bergdahl, it could tip the legal argument in his favor, and give him what would amount to an accidental pardon.
