(CN) – Attorneys for Army Sgt. Bowe Bergdahl made a last-minute attempt Tuesday to have the desertion case against him thrown out despite the soldier’s guilty plea the day before, claiming President Donald Trump’s negative view of Bergdahl casts a shadow over his sentencing.
Bergdahl pleaded guilty Monday to desertion and misbehavior before the enemy for walking away from his post in Afghanistan in 2009, a move that triggered a five-year search and divisive prisoner exchange.
Citing concerns over President Trump’s allegedly unlawful influence during the sentencing phase, attorneys for Bergdahl argue that the president’s comments this week in a Rose Garden news conference reaffirmed his criticisms of their client.
Trump had repeatedly condemned Bergdahl as a “dirty, rotten traitor” during the 2016 campaign and attorneys for the embattled sergeant unsuccessfully argued that a fair trial under President Trump would be impossible.
On Monday, standing alongside fellow Republican and Senate Majority Leader Mitch McConnell, Trump said he couldn’t comment when asked about Bergdahl’s case, before adding, “But I think people have heard my comments in the past.”
Bergdahl’s attorneys now claim in a motion to dismiss filed Tuesday that Trump’s latest comment “cast an impermissible shadow” over the case’s sentencing phase and prevents him from receiving a fair sentence on charges that could land him in a military prison for life.
“His statement, made at a televised press conference that was one of the most salient public events of the day, removes any doubt about whether his campaign comments reflect his current opinion,” the motion states. “His views now, months after Inauguration Day, are no different from what they were before then. Had they changed, he would have said so.”
Earlier this year, defense attorneys wrote that Trump transformed his campaign rallies into a “televised traveling lynch mob,” and that he had used the word “traitor” to describe Bergdahl at least 156 times in 64 speeches across the nation.
According to the January motion filed shortly after Trump’s inauguration, Trump called Bergdahl a “son of a bitch” who should be killed, and added that he, Trump, would be willing to kill him himself.
But Army Col. Judge Jeffery R. Nance wrote in a ruling the following month that Trump’s criticism of Bergdahl, while “problematic,” was merely “inflammatory campaign rhetoric.” The judge later blocked defense attorneys from asking potential jurors whether they had voted for Trump last year.
That ruling could have impacted Bergdahl’s decision in August to waive a trial by jury. He instead opted for a military judge to hear his case before pleading guilty to desertion and misbehavior before the enemy on Monday.
Bergdahl, 31, told Judge Nance at his plea hearing in Fort Bragg, N.C. that he understood leaving his combat outpost in Afghanistan in 2009 was against the law, and that he left on his own.
The soldier was captured by the Taliban-linked Haqqani network within hours of his disappearance on the morning of June 30, 2009. His absence set off an intensive manhunt that is blamed for some of his comrades being seriously wounded, although defense attorneys have argued that Bergdahl cannot be held responsible for how search decisions by others were conducted.
“I was captured by the enemy against my will,” Bergdahl, of Hailey, Idaho, told Judge Nance on Monday morning.
Bergdahl faces up to life in prison for misbehavior before the enemy, and a possible five-year sentence for desertion. He did not make an agreement with prosecutors to limit punishment in exchange for his guilty pleas.
Sentencing is set for Oct. 23.
Questions have lingered over the case for years. Bergdahl has been portrayed as a traitor, and his May 2014 exchange for five Taliban detainees being held at Guantanamo Bay created a political firestorm that still fuels criticism from Washington lawmakers.
Bergdahl told Maj. Gen. Kenneth Dahl, the Army’s lead investigator, that he left his platoon’s base to begin a 20-mile run, hoping that his absence would cause enough attention to allow him to air his leadership grievances with a general. But he quickly found himself tangled in the hills before six to seven men on motorcycles carrying high-powered weapons snatched him away less than 24 hours after he walked into the enemy-infested desert.
Dahl testified that sending Bergdahl to prison “would be inappropriate.” A military expert who debriefed Bergdahl said the soldier’s five years in captivity were the worst a U.S. prisoner of war has suffered in 60 years.
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