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Army Judge: Bergdahl Trial to Continue Despite Trump Comments

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FILE - Army Sgt. Bowe Bergdahl leaves a courtroom after a pretrial hearing in Fort Bragg, N.C., Nov. 14, 2016. Bergdahl is charged with desertion and misbehavior before the enemy after walking off his post in Afghanistan in 2009.

A military judge has allowed a criminal case against Army Sergeant Bowe Bergdahl to continue, despite repeated negative comments about the soldier by President Donald Trump during campaign speeches before last year's election.

Colonel Jeffery Nance ruled Friday that Trump's comments — repeatedly calling Bergdahl a traitor and saying he should be shot — had not tainted the case. He also rejected claims that Trump's discussion of the young soldier's case amounted to unlawful command influence — a well-known concept in the military judicial system, where a person holding command authority appears to put pressure on a court proceeding.

Bergdahl is accused of endangering fellow troops by abandoning his post in Afghanistan in 2009, and his trial has been tentatively set to begin in mid-April. Defense attorneys asked for the case to be thrown out, saying their client could no longer get a fair trial following Trump's comments.

No effort to taint trial

Nance said Trump's comments were troubling but were not made to prevent Bergdahl from getting a fair trial.

"No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial," Nance wrote in his decision.

FILE - Then-Republican presidential candidate Donald Trump speaks about Army Sgt. Bowe Bergdahl at a rally in Las Vegas, Dec. 14, 2015. An Army judge has ruled Trump’s scathing criticism of Bergdahl will not prevent the soldier from getting a fair trial on charges he endangered comrades by walking off his post in Afghanistan.
FILE - Then-Republican presidential candidate Donald Trump speaks about Army Sgt. Bowe Bergdahl at a rally in Las Vegas, Dec. 14, 2015. An Army judge has ruled Trump’s scathing criticism of Bergdahl will not prevent the soldier from getting a fair trial on charges he endangered comrades by walking off his post in Afghanistan.

'Whack job'

Trump has directed an array of insults at Bergdahl in the past, ranging from "a whack job" to "a very bad person" to someone who should be pushed out of an airplane without a parachute.

Bergdahl's civilian defense attorney, Eugene Fidell, said he would appeal Nance's ruling Monday before the U.S. Army Court of Criminal Appeals.

"President Trump's long vilification of Sergeant Bergdahl raises profound questions for the integrity of the military justice system and, more broadly, the rule of law in our country," Fidell said.

Nance said he would allow the defense wide leeway in questioning potential jurors about Trump's comments. He further advised the defense could again request charges be dropped after a jury was selected.

Bergdahl was stationed in Afghanistan's Paktia province when he left his post without permission in 2009. He was subsequently captured by allies of the Taliban and held captive for five years.

Prisoner swap

The Obama administration secured his release in a prisoner swap that touched off a firestorm of criticism from Republicans in Congress. Some lawmakers accused the administration of aiding a deserter and complained that Congress did not receive a required 30-day warning about the transfer of foreign prisoners in U.S. custody.

Bergdahl's lawyers said their client walked away from his post to warn officers at another base about problems in his unit.

Summing up his ruling Friday, Nance said he "recognizes that this is an unusual case, perhaps unique in all the annals of military justice." He pledged "to vigilantly ensure a fair trial," and ordered both prosecution and defense attorneys to prepare a list of questions for prospective jurors about unlawful command influence and other issues in the Bergdahl case, which all could discuss before jury selection began.

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