Lawyers for Sgt. Bowe Bergdahl are appealing a decision not to toss their client’s case out over disparaging comments made by President Trump on the campaign trail.
Defense lawyers filed the appeal Monday with the U.S. Army Court of Criminal Appeals after a military judge ruled against their motion to dismiss the case Friday.
“To describe President Trump’s comments about Sgt. Bergdahl as merely ‘troubling,’ ‘made without consideration of their possible impact on the trial of the accused,’ ‘disturbing and disappointing,’ and ‘problematic,’ … does not begin to vindicate the important interest in fostering public confidence in the administration of military justice,” Bergdahl’s lawyer wrote in the appeal, quoting the judge’s written ruling.
Bergdahl is set to face a court-martial in April 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.
Trump referenced Bergdahl multiple times throughout the campaign, calling him a traitor who should be executed.
At a rally in October 2015, Trump said, "We're tired of Sgt. Bergdahl, who's a traitor, a no-good traitor, who should have been executed"
“Thirty years ago, he would have been shot,” he added.
Bergdahl’s lawyers argue those comments coming from the commander-in-chief compromise their client’s right to a fair trial.
Prosecutors argued that since those comments were made before Trump’s inauguration, they don’t affect the trial.
The judge in the case, Col. Jeffery Nance, ruled Friday that those comments, while “disturbing and disappointing,” didn’t prejudice the Army’s case against Bergdahl and so there’s no reason to dismiss the case.
“No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial,” Nance wrote in the ruling.
In their appeal, Bergdahl’s lawyers argued that if the appeals court doesn’t act, the case will be “conducted under a dark cloud” of apparent unlawful commander influence (UCI).
“The strong interest in fostering public confidence in the administration of military justice weighs heavily in favor of grasping this nettle now,” they wrote. “President Trump’s repeated public vilification of Sgt. Bergdahl must by explicitly acknowledged as apparent UCI and decisive remedial action taken.”