Bowe Bergdahl

Bergdahl appeal filed, judge also pushes back court-martial trial set for April

Sgt. Bowe Bergdahl, center, arrives with his civilian attorney, Eugene Fidell, and military attorney, Lt. Col. Franklin Rosenblatt, for a hearing last year at Fort Bragg, N.C.
Sgt. Bowe Bergdahl, center, arrives with his civilian attorney, Eugene Fidell, and military attorney, Lt. Col. Franklin Rosenblatt, for a hearing last year at Fort Bragg, N.C. The Fayetteville Observer

Lawyers for U.S. Army Sgt. Bowe Bergdahl are continuing their efforts to have the desertion case against their client dismissed because of disparaging remarks made by Donald Trump while he was campaigning for president.

Bergdahl’s lawyers on Thursday filed an appeal with the U.S. Court of Appeals for the Armed Forces, claiming that Trump’s repeated comments calling Bergdahl a traitor, wrongly insisting that six soldiers lost their lives searching for Bergdahl and saying he should be executed makes it impossible for the Hailey native to received a fair trial.

The appeal was filed after a military judge, Army Col. Jeffery Nance, ruled last month that Trump’s statements were troubling but would not prevent Bergdahl from receiving a fair trial.

Bergdahl was scheduled to go on trial April 18 on charges of desertion and misbehavior before the enemy. He walked off his post in Afghanistan in 2009. He was later captured by a group friendly with the Taliban and held hostage until a prisoner exchange was arranged in 2014.

Unrelated to the appeal, Nance rescheduled that trial to begin Aug. 8.

If convicted of misbehavior before the enemy, Bergdahl could be sentenced up to life in prison.

During the presidential campaign, Trump repeatedly called Bergdahl a “dirty rotten traitor” and told rally audiences that he should be executed. He suggested Bergdahl be thrown out of an airplane without a parachute in an area controlled by the Islamic State.

“If I win, I might just have him floating in the middle of that place and drop him, boom. Let ’em have him. Let ’em have him. I mean, that’s cheaper than a bullet,” Trump said Oct. 16, 2015, at a rally in Tyngsboro, Mass.

In his February ruling, Nance said there was strong circumstantial evidence that Trump’s comments “were nothing more than inflammatory campaign rhetoric.”

He noted that since Trump took office in January, he has not commented publicly on the Bergdahl case.

Bergdahl defense attorney Eugene Fidell, in his 48-page motion, argued that Trump’s comments constituted unlawful command influence, a legal concept where a person of command authority exerts pressure or appears to place pressure on military judicial proceedings. He said military prosecutors have the burden to show that wasn’t the case.

Fidell asked that either the case against Bergdahl be dropped or for his client to face no punishment.

It’s unclear how soon the appeals court will take up the case. No hearings have yet been scheduled.

This story has been updated to reflect that the filing of the appeal was unrelated to Nance rescheduling Bergdahl’s court-martial trial from April to August.

John Sowell: 208-377-6423, @IDS_Sowell

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