Minutes after President Donald Trump took the oath of office Friday, Sgt. Bowe Bergdahl's defense lawyers filed a motion to dismiss court martial charges based on Trump's repeated statements as a candidate calling him a "dirty rotten traitor" and a "no good traitor."
"It's inimical to the administration of justice" and a denial of Bergdahl's due process rights to a fair trial to allow the case of U.S. v Bergdahl to proceed on charges of desertion and misbehavior before the enemy under Articles 85 and 99 of the Uniform Code of Military Justice, said Eugene Fidell, a civilian defense counsel for Bergdahl.
Fidell said Trump's statements amounted to "apparent unlawful command influence" that could prejudice any potential military jury panel called to decide Bergdahl's fate, although Trump made the statements as private citizen and candidate and not as commander in chief.
The motion said that "Sergeant Bergdahl has never been charged with, indicted for, or convicted of treason. Nonetheless, President Trump referred to him as 'traitor Bergdahl' and repeatedly described him as, variously, a traitor, a 'dirty, rotten traitor,' a 'no-good traitor,' a 'dirty, no good traitor,' and 'a horrible traitor.' He did this at rally after rally across the country."
At a 2015 rally in Las Vegas, 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."
The motion also argued that Trump would be unable to withdraw the statements as Commander-in-Chief. "Given the nature of the statements, which through repetition and positive audience response became a signature campaign theme, any attempt to recant them after the filing of this motion and safely after President Trump became commander in chief would be deeply cynical and unworthy of credence," the motion said.
The motion was filed with Army Col. Jeffery Nance, the trial judge for Bergdahl's general court martial, which is tentatively scheduled for April at Fort Bragg, North Carolina on the desertion and misbehavior before the enemy charges. The latter carries a maximum penalty of life in prison.
Bergdahl said he walked off his post in Afghanistan in 2009 in an effort to reach commandeers to tell them of problems with his unit. He was held captive by the Taliban and its allies for five years.
The Obama administration in May 2014 arranged to exchange Bergdahl for five Taliban prisoners at the Guantanamo Bay, Cuba, detention facility.
-- Richard Sisk can be reached at Richard.Sisk@Military.com.