A reader forwarded me this motion to dismiss filed yesterday by the defense in the Bergdahl case. The basis for the motion is a comment President Trump made about the case during a press conference on Monday:
At 1:47 p.m. on 16 October 2017, President Trump held a joint press conference in the Rose Garden with Senate Majority Leader Mitch McConnell. According to the official transcript, the following colloquy occurred between the President and a member of the press corps:
Q Mr. President, Ronica Cleary with Fox 5.
THE PRESIDENT: Yes.
Q Do you believe that your comments in any way affected Bowe Bergdahl’s ability to receive a fair trial? And can you respond to his attorney’s claims that —
THE PRESIDENT: Well, I can’t comment on Bowe Bergdahl because he’s — as you know, they’re — I guess he’s doing something today, as we know. And he’s also — they’re setting up sentencing, so I’m not going to comment on him. But I think people have heard my comments in the past.
Mot. at 2. The motion then argues that:
President Trump stands at the pinnacle of an unbroken chain of command that includes key participants in the remaining critical steps of the case. Among these are the Military Judge, the staff judge advocate, the general court-martial convening authority, and the judges of the Court of Criminal Appeals.
Mot. at 3.
Why this justifies “dismiss[ing] the charges and specifications,” Mot. at 1, after Bergdahl pleaded guilty, is anybody’s guess.
Presumably, however, Bergdahl’s defense team will voir dire the military judge prior to sentencing.
The motion also states:
The defense offers the transcript and a DVD of the colloquy reproduced above in support of the motion. We assume the government will not contest their authenticity and accuracy. If that is incorrect, we will ask that President Trump be called to testify telephonically.
Mot. at 3 (emphasis added). The prospect of calling the President to testify by telephone about a statement that was recorded, broadcast (watch it here), and witnessed by a great many people (any of whom could testify that it was said) is almost as ridiculous as dismissal would be.
Updated to add: I previously addressed the President’s comments about the Bergdahl case in this post, in which I wrote:
Dismissal is a remedy for unlawful command influence, but it’s the most extreme remedy and it means that Bergdahl could never receive a fair trial in the wake of Trump’s pre-election comments. Getting a fair trial may be harder than it would have been before the comments – or it could be easier if the court-martial members think the comments were inappropriate and hold them against the prosecution – but there’s no evidence that a fair trial is impossible.
In that post I also observed that:
There’s absolutely no evidence that the military judge (Colonel Jeffrey Nance) or the multiple appellate military judges who have considered this issue are the slightest bit afraid to correct injustice when they see it. Rather – as I noted here in the context of comments by Senator McCain that Bergdahl also tried to use to win a dismissal – the reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army trial and appellate military judges in the face of any kind of improper influence.