Army Sgt. Bowe Bergdahl after his arraignment last month.

Photographer: Sara D. Davis/Getty Images

Bergdahl Defense Could Call His Loudest Critic: Trump

Josh Rogin is a former Bloomberg View columnist.
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Donald Trump’s repeated public smears of Army sergeant Bowe Bergdahl are compromising his right to a fair trial and an impartial jury, according to Bergdahl’s lawyer, who is considering calling Trump as a witness in Bergdahl’s upcoming court-martial.

While campaigning for the Republican presidential nomination, Trump has repeatedly called Bergdahl a “no-good traitor” and a “dirty rotten traitor,” and said he “should have been executed.” Those comments could land Trump on the witness stand when the former Taliban prisoner goes on trial this year. If Trump is compelled to testify in the proceeding, he could be required to appear in the middle of the presidential election season.

Calling Trump as a witness would be only the latest in a string of efforts by Bergdahl’s lawyers to protest Trump’s attacks.

“We've made no decision yet on whether to call Mr. Trump as a witness,” Bergdahl’s lawyer Eugene Fidell told me. “We continue to monitor his defamatory statements.”

Bergdahl, who spent five years in captivity after he left his outpost in Afghanistan in 2009, is charged with misbehavior before the enemy and desertion. His court-martial is scheduled for August. If convicted, he could face life in prison.

Bergdahl’s lawyers have been arguing for months that Trump’s statements, combined with the huge media platform he enjoys, are creating an unfair situation for their client. Bergdahl is not able to defend himself from Trump’s attacks in the press, and the lawyers argue that Trump’s accusations are poisoning public opinion and potentially influencing the jury pool.

“The First Amendment rules out any effort to prevent Mr. Trump from making these defamatory remarks,” Bergdahl’s lawyers argued in a related court filing in October. “The fact remains, however, that his pattern of doing so, with the full glare of public attention before mass audiences around the country, materially threatens SGT Bergdahl’s right to fair consideration by the convening authority as well as in a court-martial.”

That motion was written before Bergdahl’s case was referred for a general court-martial in December. Fidell argues now that Trump’s comments could influence that jury pool and others involved in the case. He wants the courts to release documents that he says would show that Trump’s comments, including Trump’s claim that six U.S. soldiers died searching for Bergdahl, are false.

The court has not yet released a pretrial report by Major General Kenneth Dahl, which reportedly concludes that Bergdahl should not face any additional imprisonment related to his actions. The court has also not released the transcript of Bergdahl’s hours-long interview with Dahl. Fidell argues that releasing these documents would give Bergdahl the opportunity to counter bias against him in the court of public opinion.

“Mr. Trump and the echo chamber that has amplified his voice beyond all reason have a right to free speech,” Fidell wrote in his court filing. “Simple fairness demands that SGT Bergdahl at least be able to defend himself by permitting public access in real time to documents that put the lie to the kind of character assassination to which he is being subjected.”

Military law experts said that while Trump’s statements may be defamatory, that is not the question at hand. Bergdahl’s lawyers would have to convince the judge that Trump's comments have harmed Bergdahl’s ability to receive a fair trial.

“The only legal issue here is that Sergeant Bergdahl is constitutionally entitled to an unbiased and impartial jury trial. The question is, will statements like this taint the jury pool,” said Rachel VanLandingham, a former Air Force judge advocate now a professor at Southwestern Law School. “Is this unfair to Bowe Bergdahl what’s going on? Yes. But is it legally unfair?”

The military courts may not be convinced that Trump’s influence over politics and public opinion are legally relevant to Bergdahl’s ability to receive a fair trial, she said. But if the court at least grants Fidell a motion to have a hearing on the issue, Trump could be called to testify. If the presiding judge approved calling him and Trump refused to attend, he could be subpoenaed.

The Trump campaign did not respond to multiple requests for comment.

Trump is not the only figure Bergdahl’s lawyers have criticized for publicly opining about the case. Last summer, Fidell argued in court that comments by the Senate Armed Services Committee chairman, John McCain, were having undue influence on the case because the Army officer presiding over the case was up for a promotion that required Senate confirmation.

But McCain is no longer running for president. There is no chance he would wield influence as commander in chief. Trump, however, is campaigning for just that power. To rile up his supporters and score short-term political gain, he is setting aside the constitutional presumption that one is innocent until proven guilty.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Josh Rogin at joshrogin@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net