The Bowe Bergdahl case went back to court on Thursday, when the Army heard an appeal arguing that President Donald Trump’s comments about a conviction and prison time for the former soldier amounted to undue command influence and interfered with his right to a fair trial.
The Army Court of Criminal Appeals convened a three-judge panel to hear the case, according to the court docket.
“The president has tainted everything,” Eugene Fidell, a Yale Law School lecturer and former Coast Guard judge advocate who represented Berdahl, told the panel, Military.com reported on Friday.
Bergdahl, then a sergeant, pleaded guilty to desertion and misbehavior before the enemy in 2017, for deserting his post in 2009 while deployed to Observation Post Mest-Malak in Afghanistan’s Paktika province, with 4th Brigade Combat Team, 25th Infantry Division.
He was quickly captured by insurgents and held hostage until 2014, when the Obama administration negotiated his return in exchange for five Guantanamo Bay detainees.
The judge in his case did not sentence him to prison, instead ordering him busted down to private, a fine of $10,000 and a dishonorable discharge.
Trump weighed in multiple times over the proceedings, tweeting and making public comments that favored his execution.
“In the old days when we were strong and wise, we [would] shoot a guy like that,” he said in 2015, as he campaigned for president.
At the time of the trial, Bergdahl’s legal team argued that Trump’s comments had tainted the trial. The judge, Army Col. Jeffrey Nance, declared them mitigating evidence, which can reduce punishment in sentencing.
Still, Fidell filed for an appeal. Officially, the appeals panel considered whether the president had an influence on court proceedings even if he doesn’t preside over them, whether that influence placed “an intolerable strain on the public’s perception of the military justice system" and whether the average person — with all the facts of the case in front of them ― would have doubts about the fairness of the trial.
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Fidell declined an Army Times request for comment.
Though Trump let up on the rhetoric once he took office, he did not withdraw nor double down on his comments during an October 2017 press conference in the White House Rose Garden.
“I think people have heard my comments in the past," he said.
An attorney for the government argued that unlawful command influence doesn’t apply to Trump in this case, because if a president is subject to the Uniform Code of Military Justice in this instance, they should be subject to it entirely.
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.
