Judge Bars Bergdahl Lawyers from Asking About Voting for Trump

Sgt. Bowe Bergdahl, right, talks with his military attorney, Lt. Col. Franklin Rosenblatt after, after a hearing, Wednesday, Aug. 24, 2016, on Fort Bragg, N.C. (Andrew Craft/The Fayetteville Observer via AP)
Sgt. Bowe Bergdahl, right, talks with his military attorney, Lt. Col. Franklin Rosenblatt after, after a hearing, Wednesday, Aug. 24, 2016, on Fort Bragg, N.C. (Andrew Craft/The Fayetteville Observer via AP)

FORT BRAGG, N.C. -- Attorneys for accused Army deserter Sgt. Bowe Bergdahl can ask prospective jurors in the soldier's court-martial about their impressions of President Donald Trump but not if they voted for him, the judge overseeing the case said Thursday.

The judge, Army Col. Jeffery R. Nance, told defense attorneys that polling potential jurors on their vote in the 2016 presidential election would be inappropriate to include in a roughly 40-question survey that will be distributed to the jury pool next week.

"I believe it is prohibited by [court] rules," Nance said during a pretrial hearing at Fort Bragg where the former Taliban captive appeared for a second consecutive day.

Bergdahl, 31, faces a court-martial in October on charges that he deserted his small combat outpost in eastern Afghanistan in June 2009 and endangered his unit through misbehavior. The more serious misbehavior charge carries a potential life sentence.

The questionnaire will include more than five questions probing the potential jurors impressions of Trump, including his trustworthiness. Nance also allowed the defense to ask prospective jurors if they were familiar with Trump's negative campaign trail comments about Bergdahl and what impact those statements might have on their impressions of the soldier.

Trump made more than 60 negative references to Bergdahl during public campaign rallies and speeches between June 2014 and August 2016, calling him "a dirty, rotten traitor" and opining he should be executed or sent back to his captors. As president, Trump has not made public mention of Bergdahl and the White House has declined to comment on his past statements.

Lead defense attorney Eugene Fidell called Nance's decision not to include the voting question "regrettable."

"Not to be coy about it, but we really do believe that we need to know how people voted," Fidell told reporters Thursday after the hearing. "President Trump made no secret of his view of our client, to use his word, as ‘a traitor.'"

Fidell is concerned jurors might believe Trump's campaign trail rhetoric could influence jurors to believe they must punish Bergdahl.

Defense attorneys also want the survey to ask the potential jurors if they had ever posted opinions of Bergdahl on social media and details of those posts. Nance said he would consider including that question in the survey.

The prospective jurors' answers to the questionnaire will be kept confidential as Nance ordered them sealed from public view. It was not clear Thursday if Nance would allow the questions on the survey to be released to the public.

Bergdahl has yet to choose whether he will be tried by a jury or by Nance alone. He also has yet to enter a plea on charges of "misbehavior before the enemy by endangering the safety of a command, unit or place" and "desertion with intent to shirk important or hazardous duty."

Bergdahl has admitted he walked off Observation Post Mest in Paktika province without permission. He was quickly captured by Taliban fighters, who held him in Pakistan for five years until he was released in May 2014 in a controversial prisoner swap for five senior Taliban commanders held in the detention facility at Guantanamo Bay, Cuba.

Bergdahl remains on active duty in a clerical job at Joint Base San Antonio in Texas and has not been held in pretrial confinement.

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