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Bergdahl case presents early legal test of Trump rhetoric


    U.S. Army Sgt. Bowe Bergdahl.

RALEIGH, N.C. >> A military court will weigh the real-world consequences of President Donald Trump’s fiery rhetoric as Army Sgt. Bowe Bergdahl argues he can’t get a fair trial under his new commander in chief.

Minutes into the Republican president’s term, lawyers for Bergdahl cited Trump’s scathing criticism in a request to dismiss charges that Bergdahl endangered comrades by walking off his post in Afghanistan. The motion filed Friday argues Trump violated his due process rights by repeatedly calling him a traitor and suggesting ways he could be punished.

The motion noted more than 40 instances of Trump’s criticism at public appearances and in interviews through August 2016.

“Remember the old days? A deserter, what happened?” Trump said while campaigning in July before pantomiming pulling a trigger and adding: “Bang.”

Trump’s negative comments take on new importance now that he is commander in chief. Legal scholar Rachel VanLandingham said she thinks it will be hard for potential jurors and others involved in the case to ignore what Trump has said because of the sheer repetition.

“Ingrained in military culture is the desire to serve and follow commanders’ orders, and that what commanders say is right,” said VanLandingham, a former Air Force lawyer who teaches at Southwestern Law School in California. “And so that applies to the ultimate commander in chief. … They were made time after time after time, and I do think they are seared into the military psyche.”

Bergdahl’s trial is scheduled for April at Fort Bragg on charges of desertion and misbehavior before the enemy. The latter carries a maximum penalty of life in prison.

Bergdahl, who is from Idaho, has said he walked off his post in 2009 to cause an alarm and draw attention to what he saw as problems with his unit.

He was held captive by the Taliban and its allies for five years. The Obama administration’s decision in May 2014 to exchange Bergdahl for five Taliban prisoners prompted some Republicans to accuse Obama of jeopardizing the nation’s safety.

During his campaign, Trump made criticism of Bergdahl a staple of his campaign speeches, suggesting such outlandish punishments as returning him to the Middle East by throwing the soldier out of a plane without a parachute.

At a December 2015 rally in Iowa, Trump said: “Let’s fly him over. We’ll dump him right in the middle; throw him out of the plane. Should we give him a parachute or not? I say no.”

There is precedent for a military judge to decide a president’s comments have tainted a prosecution. In 2013, a Navy judge cited comments by then-President Barack Obama when he said two defendants in sexual assault cases couldn’t be punitively discharged if they were found guilty because of Obama’s public comments about cracking down on sexual assault.

Now, Bergdahl’s lawyers say the question of whether Trump went too far is one of monumental importance to the military justice system.

“The circumstances require the military justice system to defend itself,” the defense lawyers write. “Administrations come and go, but the credibility of the system must remain the lodestar.”

Eric Carpenter, a former Army lawyer who teaches law at Florida International University, said dismissing the charges “wouldn’t be an unreasonable decision,” but that military judges typically seek ways to keep cases moving. The judge could also give the defense wide leeway to challenge potential jurors or limit Bergdahl’s punishment if convicted.

VanLandingham said she believes dismissing the case would be the right thing to do.

“I think justice demands a dismissal. But do I think it’s going to happen? No,” she said.

As to whether Trump’s brashness could affect future cases, Carpenter said he expects the secretary of defense or military lawyer to give Trump advice on how to avoid comments that create problems for the military justice system.

“Time will tell whether Trump would respond to that advice,” he said.

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    • Said what he felt. Refreshing and it got him elected. His statements REMIND us of how REAL punishments USED to be IN CONTRAST to what’s happening now. He said it – we’re reminded and maybe more inclined to give harsher sentences. Hope he continues with what got him elected.

    • That’s what they said about him flapping his mouth about the cost of Airforce 1 and THEN look what happened. Costs came down ALONG with other military contracts. Hope that mouth just keeps a-flappin’

      • No, that’s not what happened. He flapped his mouth with falsehoods. When the truth came out (the reality of the numbers and estimates), Trump took credit for the “reduction.” But of course, the fools of the public believed it.

      • Yes, Trump being Trump again. They deleted my fact check post, which had only facts, nothing offensive. (And I’m not throwing out “rigged media” conspiracy theories.)

        Experts calculated the cost of the AF1 fleet (TWO planes, not one) to be $2.8 billion over 5 years, or $3.73 billion over 12 years. So Boeing’s “pledge” to keep the costs below $4 billion is nothing, at most an agreement to uncharacteristically raise the price (there’s NO evidence of that happening yet).

        The Russians helped by releasing the very worst emails they could find associated with Clinton. A bunch of fake news writers helped sway a few million reading comprehension-challenged votes toward Trump. And who’s the biggest fake news writer of all? Yeah, his name begins with “T” and ends with “ump”.

  • Bergdahl would never had been a problem if Obama had NOT negotiated with Muslim terrorists to release Berghdahl in exchange for setting free many dangeruous Muslim terrorists the US had in custody.

  • Typical lawyer . Disingenuous double-speak. She knows Bergdahl is guilty of treason and there is no way around it so she grasps at straws. In Military Court it isn’t likely to work .

  • Bergdahl should have been court-martialed in 2014 and would have been under normal military procedures if Obama had not made Bergdahl some kind of a hero when he announced at the White House, with Bergdahl’s parents standing next to him, that Bergdahl was being released by the Taliban in exchange for five high-profile Gitmo terrorists. That sent a clear signal to the Army’s top brass that they dare not do anything to embarrass Obama while still in office like court-martialing Bergdahl for allegedly deserting and other military offenses. There is no other reason for the trial being delayed for three years.

  • Weak defense. During jury selection, the prosecutor could ask potential jurors if they consider themselves “Trump supporters” or not. Put only non-Trump supporters in the jury. Regardless of who’s the president, desertion is desertion, period. Now what can Bergdahl’s lawyers say about that?

  • I’m no attorney, but I doubt if what any public office candidate mouthed off during their election campaigns, would not have any effect in any court of law. In fact, this defense attorney is just playing the public to get publicity for his case.

  • Fact: Bergdhal deserted. Fact: People were injured or killed while searching for Bergdhal. Fact: UCMJ allows for harsh penalties for deserters.

    Regardless of statements made by Trump, follow the UCMJ and prosecute Bergdhal to the fullest extent of the law. Bergdhal scrooed the pooch and let his fellow soldiers down. The man should spend life in prison.

  • I would have a little more respect for Bergdahl if he accepted responsibility and consequences for actions instead of trying to weasel his way out by first asking Obama for a pardon and now whining how he can’t get a fair trial because President Trump made critical remarks of him…time for him to grow up and live up to the responsibilities that come with wearing that uniform….

      • Right now I have no respect for him since he is trying to weasel his way out…if he had accepted responsibility and faced the consequences then I might have a little more respect for him as a man…

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