Bergdahl lawyers: Trump attacks damage chances of fair trial

RALEIGH, N.C. – Donald Trump’s ideas for punishing Army Sgt. Bowe Bergdahl include that he “should have been executed,” someone should “throw him out of a plane” without a parachute or he should be dropped in terrorist territory “before we bomb the hell out of ISIS.”

Bergdahl’s defense attorneys argue Trump’s attacks are damaging his chances for a fair trial, saying the Republican presidential front-runner keeps repeating false information in front of large audiences.

Trump is the most vocal critic to pressure the military to punish Bergdahl, though several experts say it’s unlikely his comments alone can convince the judge that the soldier’s due process rights were violated.

“When they get that kind of media attention, it gets information in front of a jury,” said Philip Cave, a retired Navy attorney who’s not involved in the case. “There is concern that all of this information … prejudices Bergdahl in getting a fair trial.”

Bergdahl, who walked off a base in Afghanistan in 2009, faces charges of desertion and misbehavior before the enemy, the latter of which carries up to a life sentence. He was held five years by the Taliban and its allies before a swap involving five Guantanamo Bay detainees, prompting criticism from some in Congress that the move threatened national security.

Court documents show Bergdahl’s attorneys intend to use statements from their client’s critics – including U.S. Sen. John McCain – to bolster their case. They also sent a letter warning Trump they may seek his testimony, and sued for access to documents that may show improper congressional influence.

Bergdahl’s lawyer Eugene Fidell said Thursday that Trump hasn’t responded.

“There is a point beyond which prejudicial pretrial publicity represents a due process violation and basically subverts the legal process,” Fidell said by phone.

Bergdahl attacks have been a staple of Trump speeches, and they’re noted in what the defense calls a “Trump Defamation Log” included in the court record. A recent version contained 30 instances through January.

Among them are variations of this statement about returning Bergdahl to the Middle East, made at a December rally in Iowa: “Let’s fly him over. We’ll dump him right in the middle; throw him out of the plane. Should we give him a parachute or not? I say no.”

Also problematic is Trump’s repetition of debunked claims.

Trump has repeatedly said lives were lost during the search for Bergdahl – even though the Pentagon has said no soldiers died looking for him. The candidate frequently calls Bergdahl a “dirty, rotten traitor,” but a general who investigated the case found no evidence Bergdahl was sympathetic to the other side.

“There are thousands and thousands of people who seem to consider him a plausible candidate for the nation’s highest position,” Fidell said. “So I have to assume some, if not many, if not all of his listeners take his comments seriously.”

A spokeswoman for Trump didn’t return messages seeking comment Thursday.

A Feb. 4 motion filed seeking public release of the general’s investigation sheds light on defense strategy regarding damaging public statements.

The lawyers write that they plan to file a motion alleging McCain’s statements unlawfully influenced the case, according to the document, which says potential witnesses have refused to speak to them because of negative publicity. McCain said in October that the Senate Armed Services Committee he chairs would review the case if Bergdahl isn’t punished.

Such “unlawful command influence” arguments wouldn’t apply to Trump because he’s outside of the military chain of command, legal experts said. But that could change if he’s elected president and the case – currently delayed by a disagreement over classified documents – pushes into next year.

In the meantime, the negative statements add to “the very real possibility that it will be difficult to obtain a fair court-martial for Sgt. Bergdahl,” said Rachel VanLandingham, an associate law professor at Southwestern Law School in Los Angeles and former Air Force lawyer.

The defense could argue Bergdahl’s due process rights were violated because negative publicity poisoned the jury pool. But she doubts the trial judge would rule in their favor, saying: “unfair in reality and unfair in legal due process terms are often different things.”

Cataloguing Trump’s negative comments in the court record may give defense attorneys a tool to shape the jury, which would consist of Army members, legal experts say. Bergdahl could also choose trial by judge alone.

Defense attorneys will have a chance to question potential jurors about Trump and ask the judge to remove any who admit biases, said Eric Carpenter, an assistant professor of law at Florida International University who served as an Army prosecutor and defense attorney. However, he expects most can separate what they’ve heard from their work on the case.

“It’s going to be next to impossible for someone in the military not to have heard this stuff,” he said. “That doesn’t mean they’re going to act on it.”