A military judge at Ft. Bragg North Carolina is expected today to reject a motion by lawyers fo admitted deserter Bowe Bergdahl that then candidate Donald Trump's comments about his case so prejudiced the military justice system that all charges against the Ft. San Houston soldier should be dismissed and Bergdahl should walk free, News Radio 1200 WOAI reports.
Bergdahl's 'pre sentence trial' as it is called under the Uniform Code of Military Justice, was supposed to start on Monday, but defense lawyer Eugene Fidell submitted a last minute motion for 'no sentence,' arguing 'Unlawful Command Interference.'
Fidell's motion, in essence, says Trump made repeated comments on the campaign trail that Bergdahl is a 'no good traitor' who 'should be executed.' Once he even used his hands to mimic a gun and made a firing noise.
Bergdahl was never charged with treason and never faced the death penalty.
But Fidell says the key issue is that, as Commander in Chief, Trump is the commanding officer of Col. Jeffrey Nance, the presiding judge in the court martial. Since the military operates on a 'command system,' where members of the military are legally obligated to follow the orders of their superiors, Nance may feel that he is duty-bound to give Bergdahl a maximum sentence because that is what his commander wants.
It is for that reason, to make sure the sentiments of commanders do not interfere with military justice, that Unlawful Command Interference is specifically prohibited on the very first page of the UCMJ.
For his part, Col. Nance says he plans to retire next year as a Colonel, and has no desite to be promoted to General, which means President Trump would not be able to use a lighter sentence he may had to Bergdahl as a reason to damage his career.
But Fidell says the 'public perception of the fairness of military justice' will be 'held up to public scrutiny' if Bergdahl is not allowed to go free.
In fact, a hearing officer at Ft. Sam Houston, where Bergdahl is already stationed at a desk job with Army North, recommended back in 2015 that Bergdahl receive no punishment worse that a less than honorable discharge and an 'Article 15' punishment, which is a non judicial punishment, generally confinement to barracks or some other minor sentence, handed out by commanders for minor infractions.
Nance is expected to reject Bergdahl's motion today and move ahead with the pre sentence hearing. Bergdahl could get anywhere from no punishment to life in prison.
Miltiary law enxperts tell News Radio 1200 WOAI they expect him to get a Dishonorable Discharge and 3-5 years in prison.