Bergdahl case presents early legal test of Trump rhetoric

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.