Can Bowe Bergdahl get a fair trial?

The trial of Bowe Bergdahl isn’t supposed to begin until April but the pretrial hearings are starting this week. I specified the phrase “supposed to begin” because there seems to be some doubt as to whether or not it will take place at all. Every major trial begins with a flurry of motions, primarily from the defense, which the judge needs to sort through before the normal process can get underway. One of the more common ones is an effort to have the charges dismissed for one reason or another. These efforts are generally unsuccessful because prosecutors don’t tend to get all the way to this phase without having first vetted the charges and determined that they stand at least a reasonable chance of success. In Bergdahl’s case his lawyers are taking a slightly different approach. They’re claiming that it’s impossible for the defendant to receive a fair trial due to public statements made by the President of the United States. (Fox News)

Lawyers for Army Sgt. Bowe Bergdahl will try to convince a judge that he cannot get a fair trial on charges of desertion and misbehavior before the enemy because of highly charged statements made by President Donald Trump.

A pretrial hearing Monday before a military judge at Fort Bragg is expected to focus on statements that Trump made during the presidential campaign. Trump called Bergdahl a “traitor” repeatedly and said he deserved a harsh punishment.

Bergdahl is scheduled for trial in April. He is accused of endangering the lives of soldiers who searched for him after he walked off his post in Afghanistan in 2009.

On the one hand this seems like a fairly specious argument. Requests for a change in venue are fairly common but they are almost always based on the theory that a local jury pool has been so corrupted by media coverage (leading to intense animosity from the community) that a fair trial could only be obtained some distance away. In this case the “venue” in question is not only the entire United States but possibly most of the planet, or at least the regions with electricity. Finding a jury pool where the members had no access to coverage of the 2016 campaign would be flatly impossible.

But with that said, and strictly playing devil’s advocate here, they do raise an interesting question. The power of the bully pulpit could reasonably be taken into account by a judge and there isn’t one much larger than that commanded by the leader of the free world. Even if the comments were made on the campaign trail, the same theory could apply. Trump’s rhetoric while running for office certainly did include a few harsh, if well-deserved descriptions of Bowe Bergdahl.

But that never seemed to stop Trump’s predecessor nor those appointed to Justice Department positions beneath him. When charges were brought against police officers involved in lethal force encounters it seems to me that the White House and the Justice Department were rather outspoken. And yet I didn’t hear the same levels of protestations on behalf of the cops involved.

All of this of course is likely just an exercise in futility. As I said at the top, there is no other viable option available at this point. It’s not as if we can move Bergdahl’s trial to another planet. Instructions will simply have to be given to the jury to disregard anything they may have heard on the evening news or read in the newspapers. Come to think of it, those are pretty much standard instructions which are given to every jury anyway.