“The defense had previously petitioned to have the charges against Bergdahl dismissed on the day President Trump was inaugurated, claiming it was “impossible” for him to receive a fair trial…”
After the judge denied defense motions in February and March to have all charges against Bowe Bergdahl dismissed over comments that President Trump made as a candidate during his 2016 presidential campaign, Bergdahl’s lawyers are now demanding access to uncensored copies of 113 emails between government prosecutors and the White House.
Heavily redacted copies of the emails in question were already obtained by the defense in August through a Freedom of Information Act (FOIA) request. The FOIA requested copies of all communications between the Army and other outside parties regarding the Bergdahl case. According to the defense lawyers, “They were unmistakably emails to and from trial counsel, including a number between trial counsel and White House personnel.”
In their motion insisting they be given access to uncensored copies of the emails in question, they claimed the communications “confirm, first, that after President Trump became president and during the pendency of (the defense motion to dismiss), his staff was in substantial contact with trial counsel by email, telephone and in person, about (the motion to dismiss).”
The defense team is also demanding that the court order the lead prosecutor, Maj. Justin Oshana, to make himself available for an interview.
The defense also claims that the emails show the prosecution asking the Trump administration to issue a statement distancing themselves from the case, specifically comparing it to a 2013 statement from then-Secretary of Defense Hagel after President Obama said any service member found guilty of sexual harassment should be dishonorably discharged from the military. To date, no such statement has been released from the Trump White House.
According to Bergdahl’s lawyers, the purpose of the prosecution’s requests was “transparently to blunt SGT Bergdahl’s apparent unlawful command influence case by trying to build a wall between Mr. Trump’s campaign statement and views after taking the oath of office.”
The defense team is also demanding that the court order the lead prosecutor, Maj. Justin Oshana, to make himself available for an interview. Why? Because the defense intends to call the lead prosecutor as a witness regarding the redacted emails.
The defense had previously petitioned to have the charges against Bergdahl dismissed on the day President Trump was inaugurated, claiming it was “impossible” for him to receive a fair trial now, after the outgoing Obama administration had refused to issue a pardon.
Col. Jefferey Nance, the judge presiding over the trial, declined to dismiss the charges in February of 2017, a decision upheld by the United States Army Court of Criminal Appeals on March 13th. Eleven days later, the defense again filed a motion for dismissal over comments made by President Trump during his 2016 campaign, which was again denied.
Bergdahl is currently facing charges of “desertion with intent to shirk important or hazardous duty” and “misbehavior before the enemy by endangering the safety of a command, unit, or place.” If convicted of the misbehavior charge, Bergdahl faces a possible sentence of life in prison.
Panel selection was initially scheduled to begin on October 16th. However, after Bergdahl elected to face a trial by judge alone, his court-martial was set to begin on October 23rd. When setting the court-martial schedule, Col. Nance said that if there were no further delays, he anticipated that the trial would be finished before Thanksgiving.
