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Can Bergdahl Get a Fair Trial?

His new commander-in-chief has repeatedly said he should be executed.

WASHINGTON—Can a soldier get a fair trial if the man who is his commander-in-chief today has repeatedly condemned him as a traitor and a deserter and publicly suggested he be executed?

The defense team of Sgt. Bowe Bergdahl, who is awaiting an April 18 court martial on charges that he deserted his Afghanistan post before he was kidnapped and spent five years in brutal Taliban captivity, has moved to dismiss the charges against him. They say their client couldn’t possibly get a fair trial with Donald Trump in the White House.

The videographic evidence is hard to ignore. The team has assembled a YouTube video consisting of 30 minutes of Trump predetermining Bergdahl’s guilt at no fewer than 65 campaign events and media appearances since 2014. Trump calls Bergdahl a “dirty rotten traitor” and a “deserter” countless times. Trump also claims that six U.S. military personnel died looking for him, which the Department of Defense has said is not true, and promises to not only review but alter the case once in office.

After at least 10 minutes of Trump calling Bergdahl a traitor and deserter, the video shifts its focus to capital punishment. Trump tells of the “good ol’ days” when they would take deserters and—here he mimicks a rifle shot—“bang!” Trump repeats this pantomime numerous times with small tweaks and embellishments for effect. He also says, “I would take that son of a bitch and drop him over the top” of Taliban territory from a plane.

“He’s a traitor, a no-good traitor, who should’ve been executed,” he says at a rally in Las Vegas.

“Before we bomb ISIS we drop Bergdahl right in the middle of it,” he says to another enthusiastic audience.

“I may have him flown back into that place, and boom, drop him … it’s cheaper than a bullet,” he says to another.

“I want to renegotiate that deal,” he says of the swap that was made for five of “the worst killers.” (At least four of the five Taliban swapped were political, moderate Taliban never accused of direct violence.)

“Send him back … I don’t want him,” he says to another rally, again to lusty cheers from the crowd. “Should we give him a parachute or not? I say no. Why waste a perfectly good parachute?”

Whatever one thinks of Bergdahl, that he was mentally unsound or a deserter or both (TAC has written extensively of the circumstances leading up to and following his disappearance in 2009), he has a constitutional right to due process. His chief defense counsel, Eugene R. Fidell, says Trump’s numerous statements, made consistently over the course of nearly two years to audiences across the country, deny him that right and also pose an “unlawful command influence,” which is prohibited in the court of military justice, even though Trump’s statements were made before he was elected president.

“The case really is unprecedented, and it poses a challenge for the military justice system. Mr. Trump can’t ignore—we can’t ignore—what he previously said like he just put on a clean shirt for the inauguration. There is history and history has consequences,” Fidell told TAC Monday.

“These weren’t generic comments, they were comments that focused specifically on [Bergdahl],” and they were never repudiated, he pointed out. “This is a person who successfully campaigned for the highest office of the country on that basis.”

Not only does it prejudice public opinion, but it prejudices the military jurors and officers who now call Donald Trump their commander-in-chief.

Lorraine Barlett, a retired Army Judge Advocate General (JAG), told TAC in an email that she “sadly agrees” with the Bergdahl team that his fair trial has been compromised:

In this political climate there well may be a case of “reverse” jury (panel) nullification, meaning, despite even a failure to prove the case beyond a reasonable doubt, there is likely to be a predisposition to find him guilty and HAMMER it home (call it the Trump factor, anti-Obama-ism, a backlash against the Chelsea Manning pardon, any number of possible reasons). And of course any comments by Trump concerning this case will almost certainly sway the outcome improperly—we call it “unlawful command influence.”

When asked about the motion to dismiss, a spokesman at Fort Bragg, where the general court martial is to be held starting April 18, told the New York Times that the military remained committed to “ensuring his ongoing legal proceeding’s fairness and impartiality.”

The government has five days to respond to the January 20 motion. If convicted on the charges, Bergdahl, 30, faces life in prison.

Kelley Beaucar Vlahos is a Washington, DC-based freelance reporter.

Editor’s note: This article has been amended to reflect a change in the court-martial date, from February 5 to April 18.



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