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Bergdahl defense asks for dismissal citing Trump statements

Story highlights
  • Judge would not allow defense to play entire 28-minute video.
  • Bergdahl visibly uncomfortable, clenching his jaw while the video played.

Fort Bragg, North Carolina(CNN) The defense team of US Army Sgt. Bowe Bergdahl argued Monday he is unable to have a fair trial because of numerous comments made by then-candidate, now President Donald Trump on the 2016 campaign trail.

Shortly after the President's inauguration, Bergdahl's defense attorneys filed a motion to dismiss the charges after Trump repeatedly called the sergeant a "traitor" during the 2016 presidential campaign.

The defense, led by Eugene Fidell, played pieces of a 28-minute video in which Trump repeatedly refers to Bergdahl as a "traitor." They claim that "Trump's statements are prejudicial to Sergeant Bergdahl's right to a fair trial," according to the motion filed last month. Their main argument was that Trump's comments constituted "unlawful command influence," (UCI) which would make it impossible for Bergdahl to receive a fair trial because the commander in chief has disparaged him multiple times.

Army Judge Col. Jeffery R. Nance would not allow the defense to play all 28 minutes. He asked Fidell to play the points that best made his argument. Fidell requested to play five minutes from the beginning of the video and two from the end.

Bergdahl looked visibly uncomfortable during the several minutes that the video was played. A member of his defense team stood and placed his hand reassuringly to Bergdahl's back twice. That person then sat down and mouthed to someone else on the team, "He's fine."

As the video played, Bergdahl's neck turned red and he could be seen clenching his jaw. As he began to look more uncomfortable, Fidell asked his team to turn the video off, before reaching the seven minutes that he had originally requested.

The prosecution, led by Maj. Justin Oshana, argued against the motion, saying that comments made by a private citizen -- whether or not they are now the President -- cannot constitute UCI.

"This was clearly something he said primarily to criticize President [Barack] Obama," Oshana said, arguing Trump's words were clearly made to "attack a political opponent for political gain." The government argued that a review of those who will be seated on the judge panel via voir dire would act as a check to ensure that judges were not biased.

Less than 1% of the 46 hours of speeches that the defense team referenced related to Bergdahl, they said.

Trump has tweeted about Bergdahl 15 times since since May 2014.

Bergdahl, who is charged with desertion and misbehavior before the enemy, faces a court-martial and the possibility of life in prison — a move that investigating officer Maj. Gen. Kenneth R. Dahl said would be "inappropriate."

The trial date is set for April 18, 2017.

Bergdahl was held captive by the Taliban for five years after he walked off his base in Afghanistan in June 2009. He was released in May 2014 in a controversial exchange brokered by former President Barack Obama administration for five Taliban detainees who were being held at Guantanamo Bay.

A House Armed Services Committee report at the time of the exchange accused the Obama administration of breaking federal law because it did not seek the opinion of Congress regarding the release of the prisoners.

"We still get an American solider back if he's held in captivity. Period. Full stop," Obama said then in 2014.

In December Bergdahl asked Obama to grant him a pardon from the charges, filing clemency applications to both the White House and Justice Department. But when Obama announced the names of 330 commutations the day before his administration ended, Bergdahl's name was not among them.