How Bowe Bergdahl's lawyers are preparing for a Trump presidency

On the campaign trail, President-elect Donald Trump called Army Sgt. Bowe Bergdahl a "dirty, rotten traitor," and waxed nostalgic for the days when military deserters faced execution instead of a prison sentence. 

Now, as Inauguration Day draws closer, Sgt. Bergdahl's attorneys hope to use those comments to their advantage. 

The Obama administration said on Saturday that it had officially received Bergdahl's request for a pardon. If the clemency request is granted before President Obama leaves office, Bergdahl could avoid a military trial scheduled for the spring. If not, the former prisoner of war could face a maximum penalty of life in prison for charges of desertion and misbehavior before the enemy. 

In the event that Obama does not grant Bergdahl's request, the sergeant's attorneys plan to file a motion arguing that Trump violated Bergdahl's due process rights with his repeated, incendiary rhetoric at campaign rallies. In October 2015, the president-elect referred to Bergdahl as a "no-good traitor" who should have been executed. 

"There is no precedent for a candidate running for high office to go after a single individual like this," Bergdahl's lawyer, Eugene Fidell, told The New York Times in reference to the roughly 40 disparaging statements Trump had made about his client as of August. "Because he is at the pinnacle of the chain of command, what he says not only has direct and indirect legal consequences but symbolic potency."

The case of Bergdahl, who was held captive by the Taliban for five years after deserting his post in Afghanistan in 2009, has been a subject of debate and controversy among Americans since his release in a prisoner swap for five Taliban in 2014. As Brad Knickerbocker reported for The Christian Science Monitor in March 2015: 

Initially, Bergdahl’s return was hailed as a bit of good news in a long, costly, and increasingly unpopular war. National Security Advisor Susan Rice said Bergdahl had served “with honor and distinction.” Family and friends in Hailey, Idaho, planned a big celebration honoring his return home.

But efforts to celebrate faded, and questions soon were raised about Bergdahl’s conduct, as well as that of President Obama in arranging the prisoner swap without first notifying Congress – a violation of federal law, the nonpartisan Government Accountability Office ruled last August.

"I believe that Bergdahl also deserves sympathy, but he has much to answer for, some of which is far more damning than simply having walked off," wrote former US Army infantry officer Nathan Bradley Bethea, who served in the same battalion as Bergdahl, for the Daily Beast shortly after Berdahl's release in 2014.

"Many have suffered because of his actions: his fellow soldiers, their families, his family, the Afghan military, the unaffiliated Afghan civilians in Paktika, and none of this suffering was inevitable," he continued. "None of it had to happen. Therefore, while I’m pleased that he’s safe, I believe there is an explanation due." 

Bergdahl has said that he left his post with the intention of causing alarm and drawing attention to perceived problems within his unit. A document from July 2015 showed that an Army Sanity Board concluded that Bergdahl had suffered from a personality disorder when he walked off his post, but Trump has dismissed the possibility that Bergdahl's "psychological problems" may have led him to desert. 

History shows it would not be unprecedented for a military judge to decide that a president's comments have tainted a trial. In 2013, a Navy judge issued a pretrial order that two defendants in sexual assault cases couldn't be punitively discharged if found guilty, citing public comments from Obama cracking down on sexual assault. 

Eric Carpenter, a law professor at Florida International University who served as an Army lawyer, told the Associated Press that, if the trial goes forward under President Trump, there is a risk that military jurors could declare Bergdahl guilty not because of the evidence, but because they believe it's what their commander-in-chief wants. 

"People in the military do what their commanders tell them to do," Professor Carpenter said. 

This report contains material from the Associated Press.