Lawyers for Army Sgt. Bowe Bergdahl plan to ask for his desertion case to be tossed out once President-elect Donald TrumpDonald TrumpKinzinger welcomes baby boy Tennessee lawmaker presents self-defense bill in 'honor' of Kyle Rittenhouse Five things to know about the New York AG's pursuit of Trump MORE takes over as commander in chief.
Eugene Fidell, Bergdahl’s lead lawyer, on Tuesday said he’ll file a motion in January to get the case dismissed, arguing Trump’s comments about his client compromise the right to a fair trial and impartial jury.
“It’s a fair trial issue,” Fidell said. “And it’s one that’s without precedent in American military history.”
Bergdahl is set to face a court-martial on charges of desertion and misbehavior before the enemy after walking off his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.
The trial, originally scheduled for August and later pushed back to February, is now set to start May 15 after the prosecution asked for a continuance.
Over the course of the campaign, Trump referenced Bergdahl multiple times to make his case that the U.S. has become weak.
"We're tired of Sgt. Bergdahl, who's a traitor, a no-good traitor, who should have been executed," Trump said at a rally in October 2015. "Thirty years ago, he would have been shot."
In March, Bergdahl’s lawyers sent a letter to Trump asking to interview him about his comments.
Fidell said Tuesday they never received a response to the letter. He and his team are still deciding whether to ask the judge to require Trump to give a deposition.
A deposition may not be necessary, Fidell added, since he has tape of Trump talking about Bergdahl “dozens of times.”
“We’re armed for bear,” Fidell said.
Bergdahl’s lawyers have also been trying to get the case dismissed over comments made by Sen. John McCainJohn Sidney McCainRedistricting reform key to achieving the bipartisanship Americans claim to want Kelly takes under-the-radar approach in Arizona Senate race Voting rights, Trump's Big Lie, and Republicans' problem with minorities MORE (R-Ariz.). McCain, chairman of the Armed Services Committee, promised to hold a hearing if Bergdahl avoids punished.
The judge ruled in September against dismissing the case because of McCain’s comment. Bergdahl’s lawyers have appealed to the U.S. Court of Appeals for the Armed Forces.
The so-called McCain motion also asked that Bergdahl face no punishment if the case isn’t tossed out.
Since he hasn’t written the Trump motion yet, Fidell said he’s not sure if he’ll ask for Bergdahl to face no punishment in that motion as well.