The military's case against Army Sgt. Bowe Bergdahl resumes with a pre-trial hearing Tuesday that could result in his court-martial being moved until after this fall's elections.
The government has proposed delaying the start of the trial to December so classified documents can be properly reviewed and prepared.
Given the shape of the presidential campaign, that could mean Bergdahl will face military justice after voters decide in November whether the incoming Commander-in-Chief will be either Hillary Clinton or Donald Trump.
Bergdahl's defense is already saying the presumptive Republican presidential nominee is damaging their client's chances for a fair trial by calling him a “dirty, rotten traitor,” who “should have been executed.”
The 30-year-old soldier faces charges of desertion and misbehavior before the enemy. The latter charge is relatively rare and carries the potential of life in prison.
Bergdahl, of Hailey, Idaho, was quickly captured after walking off his combat post in Afghanistan in 2009. He was held as a prisoner of war for five years by the Taliban and its allies until President Barack Obama exchanged five Guantanamo Bay detainees for his safe return, saying the U.S. “does not ever leave our men and women in uniform behind.”
Obama's decision was harshly criticized. Some members of Congress said it jeopardized national security. Trump has targeted Bergdahl for scorn dozens of times on the campaign trail, saying he should have been thrown from a plane.
The defense's complaints about Trump have no bearing on the case right now, according to Rachel VanLandingham, a former Air Force lawyer who teaches at Southwestern Law School in Los Angeles. But if he is elected in November and keeps up his harsh comments about Bergdahl, the defense could more effectively argue that a President Trump is pressuring Army brass for a conviction, she said.
The lack of evidence that any service members were killed or wounded searching for the missing soldier led the Army's primary investigating officer to recommend against jail time, and a preliminary hearing officer recommended against a bad-conduct discharge.
But those recommendations were scrapped in December by the general overseeing the case. Gen. Robert Abrams, who leads the Army Forces Command at Fort Bragg, sided with an Army lawyer's recommendation for a general court-martial.
Both sides also may address Tuesday whether that Army lawyer's advice to Abrams was so incomplete that it misled the four-star general.
Meanwhile, law enforcement officials have been notified that threats against Bergdahl continue, his attorneys said in a February court filing.
“Given the many incendiary comments that have been broadcast and otherwise disseminated about Sgt. Bergdahl, his immediate commander at Fort Sam Houston has taken measures to ensure his physical safety when leaving the installation,” they wrote.
A spokesman at the Texas post declined to describe these measures, citing security considerations. But as “a group of soldiers, battle buddies, we all look out for each other,” Sgt. Maj. Matt Howard said.
Bergdahl can come and go the same as any other soldier from Fort Sam Houston, where he works a desk job in a headquarters unit, handling “a lot of administrative work that needs to be done. Paperwork, moving stuff from place to place, things like that,” Howard said.