In a massive 321 page motion filed today with the U.S. Military's top court, lawyers for former Fr. Sam Houston Sergeant and accused deserter Bowe Bergdahl are asking the judges to dismiss desertion and misbehavior in front of the enemy charges against Bergdahl, citing inflammatory comments about the case made by President Trump while on the campaign trail, News Radio 1200 WOAI reports.
The motion cites authorities ranging from Thomas Jefferson to Richard Nixon to William Shakespeare in asking the court to throw out the charges, which carry a potential punishment of life in prison.
Bergdahl is currently stationed at Ft. Bragg North Carolina, awaiting his court martial, which is set to begin next month.
The argument by lead civil attorney Eugene Fidell is that Trump, as Commander in Chief of the Armed Forces, is the boss of every officer who will sit on Bergdahl's jury.
Fidell says over the course of more than a year on the campaign trail, Trump repeatedly referred to Bergdahl as a 'no good traitor' who 'should be executed,' even though Bergdahl is not charged with treason and is not facing the death penalty.
At times, Trump, in front of rallies that were broadcast live on television and standing before thousands of people, made a motion and a noise like a gun, apparently indicating he thinks Bergdahl should be executed by firing squad.
Fidell says that amounts to what is called Unlawful Command Influence, which is expressly forbidden on page one of the Uniform Code of Military Justice as 'against everything that military justice should represent.'
The problem with Unlawful Command Influence is, in a military setting, all sworn military members are bound by their oath to follow the lawful direct orders issued by their superiors, and it is not possible for the Presiding Authority of the court martial to tell Army officers to 'ignore' an order from a superior. The idea is to prevent a general from ordering a colonel to convict, or acquit, a defendant before a court.
Fidell's challenge will be to demonstrate that campaign comments made by a candidate amount to UCI under the UCMJ. But he will get a boost from a ruling by a federal judge in Hawaii last week, who ruled that anti-Muslim comments made by candidate Trump were evidence of anti-Muslim sentiment on the part of the President, and used those comments to block the President's Executive Order on immigration from six Middle Eastern nations.