Maybe the timing of these developments is just a coincidence, but from one news report (here) we learn that trial in the Bergdahl case will be delayed until May because:

Prosecutors filed a motion in October requesting a trial delay. They cited the pace at which they’re able to get approval to give the defense classified evidence as a main reason for the delay.

And from another news report (here) we learn that the defense is positively giddy because it sees the election of Donald Trump to the presidency as an uncurable error:

“We’re deadly serious about seeking a dismissal,” Eugene R. Fidell told The Fayetteville Observer on Wednesday. “There’s never been a presidential candidate who singled out a military member for this kind of abuse before. It’s never happened.”

Deadly serious is an unfortunate choice of words considering that the classified evidence addressed first report includes evidence of soldiers who were allegedly injured during search and rescue missions for Bergdahl:

Former Army Spc. Jonathan Morita also testified Monday, according to the AP, describing when an unexploded rocket-propelled grenade smashed into a rifle he was holding with the force of a hammer onto his hand.

“I looked at it, and I thought, ‘That’s going to hurt in the morning.’ I didn’t feel it. Too much adrenaline,” he testified, according to the AP report.

Defense attorneys have said it was the Taliban, not Bergdahl, who caused the injuries.

And then there’s this (from the second news report):

[Retired Army JAG and law professor Victor M.] Hansen said the bigger challenge for Bergdahl’s lawyers may be to overcome the intense pretrial publicity. Bergdahl was the subject of the second season of a popular podcast, “Serial,” that played tapes of an interview Bergdahl did with a filmmaker explaining he walked off his base to cause a crisis that would catch the attention of military brass.

Deep in the category of it’s never happened before is Bergdahl’s decision to talk with filmmaker Mark Boal for long enough to produce 25 hours of recorded conversations. Conversations that were shared with the Serial podcast (presumably with Bergdahl’s permission). Conversations that include some incredibly damaging statements, as discussed in our #8 Military Justice Story of 2015.

But Bergdahl has a Trump card.

36 Responses to “Bergdahl trial postponed until May; defense says there’s no cure for Trump”

  1. DCGone says:

    I have a sneaking suspicion that whole post was just so you could close with the Trump card line.

  2. stewie says:

    Personally I look forward to using the “Trump defense” during sexual assault cases.

  3. DCGoneGalt says:

    Reminder, it’s only contact if you’re grabbin and not penetratin.

  4. Tami a/k/a Princess Leia says:

    But if they “let you,” For whatever reason, that’s consent.

  5. DCGoneGalt says:

    Like I always told my clients . . .  if Billy Bush is around you with a tape recorder, just walk away.

  6. Vulture says:

    DCGG.  Yet we all keep coming back here to read the posts.  OER bullet statement:  His men would following him anywhere, out of morbid curiosity.

  7. Concerned Defender says:

    Seems like the Defense purposefully delayed and drug their feet by filing frivolous motions and delays, fully knowing that they’d play this card if Trump were elected.  So defense has therefore manipulated the timing of the trial, submitting sequential frivolous motions and such only to set themselves up for such a windfall.  I’d be leery of my law license playing such tricks against and trying to trick the tribunal.  
    It’s clear the defense team and Bergdahl have participated in such maneuvers to manipulate the tribunal that the lawyers should be sanctioned based on their stunts and frivolous filings to send a pretty clear message that it’s not acceptable to play such games with the docket and court.  An accused is entitled to a speedy trial – not creating a farce of the process for its own attempt at manipulating a windfall.  
    If there had been a legitimate concern that Trump would negatively influence this outcome, and knowing that Obama would have been far more favorable, it would have been in Bergdahl’s best interest to have his trial while Obama was in office.  Instead, the defense played their hand to ensure that the trial would occur during a Trump presidency, to then claim bias with an eye to invalidating it.  Instead they delayed in hope of making this argument.  What a shameful and embarrassingly obvious ploy.  These lawyers should be ashamed of themselves for the attempt.  

  8. former TC says:

    Yes, Gene Fidell is such a legal mastermind that he was able to accurately predict the Trump ascension back in the summer of 2014, and started slow-playing the Government with the sole objective of a hail Mary UCI motion against a president Trump, since UCI motions against presidents have achieved overwhelming success. 
    Or, you know, he’s been zealously representing his client in one of the most high-profile courts-martial in history, and in which the convening authority disregarded recommendations for leniency from the preliminary hearing officer.

  9. Vulture says:

    I think that Eugene Fidell’s better bet than gambling on Trump would be to require the govt to produce a Taliban as a witness to the conditions BB faced.  The govt did something similar in the trial of the Indianapolis Captain so there is a precedent for it.  If game playing was really what is going on, it’s the govt that is now asking for a delay.

  10. stewie says:


  11. (Former)ArmyTC says:

    Sounds to me like CD has never dealt with the massive ass pain that is MRE 505. With the amount of classified evidence this court martial must be dealing with, I’m amazed they think it’ll only be May before they go to trial. Most OCAs drag their feet on invoking privilege and it usually takes a court order to light an adequate fire under their ass. Yeah, some of the motions (available on Fidell’s page) have been odd, but I don’t think they are entirely frivolous.

  12. stewie says:

    Jan 5, 2017: Alien Invasion occurs, delaying all courts-martial indefinitely.
    Jan 6, 2017: CD posts on caaflog: “just like the attorneys for Bergdahl planned it.”

  13. k fischer says:

    There shouldn’t be a Trump card. 
    I mean, after all, POTUS elect just needs to have a civilian lawyer write a letter explaining that the Court-martial panel should follow the judge’s instructions, or have the SecDef write a memorandum saying the same, and that will cure any taint, and any appearance of any and all UCI, notwithstanding that the retraction did not come from the most Senior GCMCA who made the statement.  It worked for the current POTUS.
    I would differ with CD on the point about E. Fidell.  I think he’s just being a zealous advocate for his client.  The motions certainly do not appear to be as frivolous as some of the motions in limine I’ve seen filed by the Government in an attempt to keep out 608(c) evidence, which I am sure some would like to see amended.  “The victim’s motive to fabricate is irrelevant.  Any motive adduced to her is purely speculative because she denied having a motive to fabricate.  And, defense counsel’s desire to introduce this evidence is simply an attempt to sully her in front of the panel.  The only thing that matters is her testimony that she was raped by the accused!” 
    But, this raises an interesting issue.  When POTUS elect made the statement, he was merely a candidate who had no UCMJ authority over Bergdahl.  So, are his statements UCI? 
    One might argue that Trump’s statements about Bergdahl were more egregious than Obama’s statement because Trump referred to Bergdahl by name who was facing UCMJ charges that had at least been preferred, if not referred (I don’t have time to compare the statement dates to the Court-martial procedural dates).  Certainly, that should be ill advised for any candidate as long as Article 37 is in place, although it seems that a candidate’s position on Bergdahl might interest some military and veteran voters. President Obama just laid out his inflexible attitude towards the disposition of sexual offenses that applied to everyone. 
    However, someone else might argue that Trump’s statements are not really UCI because he was merely a candidate, so President Obama’s statement about how the military should deal with sexual assault allegations is more egregious.  Of course, President Obama probably wasn’t aware that he was committing UCI and learned that he committed UCI at the same time everyone else did: by reading the news.  However, it would have been nice if he had retracted the statement personally, instead of sending out a civilian attorney to write a strongly worded memo.  But, neither the POTUS-elect or the POTUS appear to be inclined to admit mistakes.

  14. Rudy Ghouliani says:

    What if President Trumpdaddy just withholds all GCM convening authority to himself.  To include pulling Bergdahl’s case up to his level.  Doesn’t that cure any taint whatsoever? 

  15. Concerned Defender says:

    All this debate will be mooted around 19 January when Mr. Obama pardons our hero.  This coward will end up with an Honorable Discharge like most of us have, 5 years of (unearned) honorable combat service, Purple Heart, other awards, 5 years of (unearned) back pay totaling probably $250,000 tax free, (unearned) 100% VA benefits, GI Bill … for being a coward and deserter.  Ran away from his obligations, got caught, and wasted countless tens of millions of dollars in his search and ultimate rescue, a terrible trade deal for 5 terrorists, and probably got several brothers injured or killed in the process.  He’s the lowest form of service member imaginable.  And he’s likely going to walk with the stroke of Mr. Obama’s pen.  While my handled is “Concerned Defender” I have great respect for the rule of law and I certainly hope that Bergdahl stands trial and is prosecuted.  
    As for the games played – I stand by my remarks.  It was clear for the last many filings that these various motions were frivolous.  And the defense has asked for delays if I recall correctly, or at least participated in delay tactics.  More than once I believe.  For instance, open source reporting shows that Defense has repeatedly requested (and ultimately received) well over 1,300,000 pages of classified documents (you know, the ones that Hillary kept on her illegal unsecured server, which she lied about under oath, and faced NO prosecution), which takes significant government time and resources to get redacted or approved for release to counsel.  I wonder which of these documents are germane to the offenses of desertion and misbehavior….?   At some point this looks like heel-dragging stall tactics vs. information that makes the crimes more or less likely, or serves as aggravation or mitigation.  Probably piles of Sitreps, OPORDs, casualties, enemy movements, maps of the area and bases, and the like.  I can only speculate of course, but from my foxhole this appears to be frivolous delay. 
    Frankly, if they were really really really concerned about UCI and Trump, they still have 2 months before inauguration.  One remedy is to demand speedy trial and get this thing wrapped up immediately.  
    I really hope that the Judge does not grant the windfall, and that the Obama admin does the right thing and not grant a pardon, and that the Trump admin makes a personal statement that to undo any perceived UCI and order that the panel members follow the Judge’s instruction and the law. 

  16. Joseph Wilkinson says:

    Rudy G — No, because his comments might be seen as influencing the judge or a (hypothetical) panel, not just a convening authority; and he cannot carry out their functions even if he is CA.  (In analyzing UCI issues it’s important to consider who is being influenced as well as who is doing the influencing.)   I think K Fischer has zeroed in on the real issues.

  17. WillFight says:

    CD, why would you question another lawyer’s ethics in a situation like this?  Nothing Fidell has done is even remotely questionable from an ethical standpoint.  He’s doing his job.  If you think your type of comments are legit to just throw out there at the drop of a hat, then you run in a much rougher crowd that most of us do.

  18. k fischer says:

    All this debate will be mooted around 19 January when Mr. Obama pardons our hero.  

    CD, if that happens, then I’ll meet you at 1600 Pennsylvania Avenue.  I’ll bring the signs that say “Bergdahl: Not My Hero!”  We’ll snap the obligatory selfies that we can send to TJAG for posting on JAGCNET, then head over to K street and see how far we can get through the Belgian ale menu at Brasserie Beck.  They serve a nice duck breast brat with a cranberry chutney and pommes frites for lunch at the bar. 

  19. DCGoneGalt says:

    I feel that a pardon is highly unlikely, but if it happens I just want stewie to promise us that he will join concerned defender in DC for a duck breast brat with cranberry chutney.

  20. anon says:

    Just to complete the circle — and this has become a series of overlapping circles (re: UCI, ethics, and politics) — for those pondering whether a president can pardon someone prior to conviction for an offense see Ex Parte Garland (1866) ( . . . its a different Garland.

  21. (Former)ArmyTC says:

    kf let me know if you’re headed there anyway. That sounds delicious. 

  22. stewie says:

    I’ll pass. lol

  23. k fischer says:

    I just want stewie to promise us that he will join concerned defender in DC 

    Not going to happen.  The beer sommelier at Brasserie Beck wears a Guild of Sommelier pin indicating that I may sample as many Belgian ales as I want in a safe, non-judging environment where I can color with crayons while I sip the bubbly goodness.
    Then again, if I could hold a Beer Summit at BB and strike a peace accord between Stewie and CD, then POTUS-elect might select me to begin working on a much easier mission: a Middle East peace agreement.

  24. Vulture says:

    Bergdahl’s dad said “Consult your conscience and seek the company of like minded men.”  Or something like that.  It might be worth just showing up anyway.

  25. stewie says:

    If I wanted to spend time watching someone spout crazy conspiracy theories…I’d just watch CSPAN circa 2017-2020.

  26. DCGoneGalt says:

    Here’s a conspiracy theory for you – I posit that “concerned defender” is the second user name of a bored Chief of Justice named . . . “stewie”!

  27. stewie says:

    1. I haven’t been a COJ for years.
    2. I wouldn’t libel other attorneys the way he does, even if I were bored.

  28. DCGoneGalt says:

    Sure, that’s what one would expect you to say if you were him. 

  29. stewie says:

    No one would expect whatever I typed to have something to do with a conspiracy, an attack on other attorneys, or at a minimum, a 200 word screed.
    The volume alone…

  30. k fischer says:

    1. I haven’t been a COJ for years. 2. I wouldn’t libel other attorneys the way he does, even if I were bored.

    That’s good. I mean, it would make for a really weird beer summit if you and CD were one in the same person. 

  31. DCGoneGalt says:

    Even more weird if only one of the personalities enjoys duck breast brats with cranberry chutney.

  32. Concerned stewie says:

    On my good days I agree with both stewie and CD.  On my bad days I also agree with both stewie and CD.  I’m always conflicted.  Anyone know the number to Onesource or other hotlines?

  33. President Comacho says:

    It took 2 years from the time of the incident to a death penalty sentence in the case of the Boston Bombings.  Thousands of witness interviews around the world – untold amounts of forensic evidence.  We are at the 18 month mark from Bergdahl’s return and we are still 6 months away from a court-martial (at least). Par for the course for a system that takes 1/2 a day or more to do a simple AWOL guilty plea.  

  34. vulture says:

    In the 80’s National Geographic took a picture of a single Afghan girl in a refugee camp, she was about 12.  Two decades later they managed to find her again.  She was recently in the news again as an illegal entry into Pakistan.
    In five years the US military could not locate a single soldier in captivity, regardless of the whether or not someone was put at risk to do so.  Par for the course, now that same military wants to prosecute him.  Maybe BB thinks he did his time already so screw the cooking pot bean bombers.
    It seems plausible the prosecution is betting on a sentence lighter than the Appellate jurisdiction threshold.  This Court martial might go to a plea, with exactly that result in the outcome.  So this big drama all goes the same direction as Gen Sinclair’s trail: smoke and mirrors, rattle and fuss, then silence.

  35. stewie says:

    Mr. President…I think on the whole, given what I’ve seen, we do a lot of things more quickly than the civilians, at least at the state level. Boston Bombing isn’t necessarily a fair comparison. High media attention, high need to quickly complete the investigation, extremely high chance of total government victory all combined to make that one go relatively quickly.
    They threw all their resources into that one with the full weight of the entire US Government, cost be damned. Your average trial counsel probably isn’t going to have that same level of commitment. If Bergdahl were remotely at that same level, we’d see it move much more quickly…but it isn’t. The election is over, President Obama is leaving, no one cares much anymore now…except military folks for the most part, for obvious and understandable reasons.

  36. Vulture says:

    I saw that Bergdahl asked for a pardon from the President.  What a chump.