The motion was filed on Friday, the same day Donald J. Trump was sworn in as president and became commander-in-chief of the U.S. military. It also came after Barack Obama could no longer issue a pardon to Bergdahl. Lawyers for Bergdahl claim statements made by candidate Trump who is now president makes it impossible for the soldier to get a fair trial.
Bergdahl joined the army in 2008 and was sent to Afghanistan the following year. In the summer of 2009 he allegedly walked away from his post and was later captured by the Taliban. He remained in the custody of the Taliban for five years. In May 2014, Bergdahl was released in a prisoner swap that saw five detainees held at Guantanamo Bay exchanged for the sergeant. In March 2015, Bergdahl was charged with desertion and misbehaviour before the enemy, offences under the Uniform Code of Military Justice. The latter charge carries a maximum penalty of life in prison.
As Digital Journal reported, back in March Bergdahl’s lawyers requested a meeting with Trump, then a Republican candidate for his party’s presidential nomination. The lawyers wanted to either meet with Trump or depose him to determine whether or not they would call him as a witness. The lawyers wanted to examine Trump to see if what he had said was prejudicial to their client.
The motion includes a 28-minute video that is a compilation of various statements Trump made during the campaign. Trump had referred to Berghdahl as a “dirty rotten traitor” and several times said he should be shot. The president also suggested he would like to throw Bergdahal out of a plane somewhere in the Middle East and even offered to kill the 30-year-old himself.
Altogether, the video contains about 40 instances of Trump allegedly making inflammatory or untrue statements about Bergdahl. The motion further states on several occasions Trump had said six soldiers died while looking for Bergdahl after he left his post. This fact is disputed by the Defense Department.
Legal scholar and former Air Force lawyer, Rachel VanLandingham, sees merit in the application. She said it will be hard for jurors and others involved in the case to ignore what Trump said because of the repetition of his remarks. She added in the military culture, soldiers want to follow the orders of their commanding officers and want to believe what these commanders say is right. As president and commander in chief, Trump is now their ultimate commander.
One of Bergdahl’s lawyers, Eugene R. Fidell, said Trump’s remarks amount to “unlawful command influence” and cannot simply be ignored. Fidell described the proceedings as “unprecedented” and said “it poses a challenge for the military justice system.”
Lorraine Barlett, a retired Judge Advocate General (JAG), said she “sadly agrees” with the position of the defense regarding Trump’s comments amounting to “unlawful command influence.”
If the motion to dismiss is unsuccessful, Bergdahl’s court martial is scheduled to begin in April at Fort Bragg. His lawyers may still want to call the president as a witness.
