FORT BRAGG, N.C. — A new commander-in-chief will be in charge when Army Sgt. Bowe Bergdahl is court-martialed in February.
The new trial date set by a military judge on Tuesday could give the proceedings a higher profile, coming only weeks after the new president — probably either Hillary Clinton or Donald Trump — is sworn into office.
The likely Democratic nominee is already being criticized by Trump supporters for supporting the Taliban prisoner swap that brought Bergdahl home after five years in captivity.
Bergdahl’s defense team, meanwhile, says the presumptive Republican nominee has already damaged the soldier’s chances for a fair trial by calling him a “dirty, rotten traitor” who “should have been executed.”
The concern is that a President Trump could influence Army brass to exert “undue command influence” on the trial, Rachel VanLandingham, a former Air Force lawyer who teaches at Southwestern Law School in Los Angeles.
Lawyers will have to try to figure out whether the Army judge or jury deciding Bergdahl’s fate have taken Trump’s harsh comments to heart, said Eric Carpenter, a former Army helicopter pilot and lawyer who now teaches at Florida International University College of Law in Miami.
“If Trump is elected, it doesn’t matter that he made the statements before becoming the commander-in-chief,” Carpenter said. “The key is that the panel is free from members who have been influenced by Trump’s statements.”
“The military judge would allow the defense team to question the jurors, find the ones that have been influenced, and then remove them from the panel,” he added.
Bergdahl also could choose to be tried by a judge alone.
The soldier from Hailey, Idaho, now 30, faces charges of desertion and misbehavior before the enemy. The latter charge is relatively rare and carries the potential of life in prison.
Bergdahl said he was trying to alert superior officers to problems in his unit when he walked away from his combat outpost in Afghanistan in 2009. He was swiftly captured by the Taliban, and remained a prisoner until President Barack Obama exchanged five Guantanamo Bay detainees for his safe return two years ago.
Obama said the U.S. “does not ever leave our men and women in uniform behind,” but the swap was harshly criticized. Some members of Congress said it jeopardized national security.
Clinton was no longer secretary of state by then, but she has defended the deal as a hard but noble decision to retrieve a U.S. soldier who might otherwise have died in captivity.
Bergdahl sat attentively Tuesday in his dress blue formal uniform, his infantry cord looped under the epaulet on his right shoulder, during the brief hearing.
The judge, Col. Jeffrey Nance, delayed the trial date from August to resolve any disputes over classified documents. Nance also ruled that media organizations could hire a stenographer for the trial, and gave Army prosecutors one week to provide reporters with online access to court documents.
The Army’s primary investigating officer recommended against jail time, saying he did not see evidence that any service members were killed or wounded while searching for him. A preliminary hearing officer recommended against a bad-conduct discharge, but noted that no definitive conclusion has been made yet on the question of casualties.
Those recommendations of leniency were scrapped in December by the four-star general overseeing the case, Robert Abrams, who leads the Army Forces Command at Fort Bragg.
Meanwhile, Bergdahl remains assigned to desk duty at Fort Sam Houston in Texas, where law enforcement officials have been notified about continuing threats against the solider.
A spokesman at the Texas post, Sgt. Maj. Matt Howard, wouldn’t describe the measures they take to protect Bergdahl, but said that as “a group of soldiers, battle buddies, we all look out for each other.”
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