Originally Published: October 23, 2017 10:05 p.m.
FORT BRAGG, N.C. — The judge deciding Army Sgt. Bowe Bergdahl's punishment said Monday he is concerned that President Donald Trump's comments about the case could impact the public's perception of the military justice system.
Sentencing was set to begin Monday for Bergdahl on charges that he endangered comrades by walking off his post in Afghanistan in 2009. But the judge, Army Col. Jeffery R. Nance, instead heard last-minute arguments by defense attorneys that recent comments by Trump are preventing a fair proceeding. Bergdahl faces a maximum sentence of life in prison.
Nance allowed the attorneys to question him about whether he was swayed by Trump's comments. Nance said he wasn't aware of the comments beyond what was in the legal motions. Nance said he plans to retire as a colonel in about a year and isn't motivated by pleasing commanders to win a future promotion.
"I don't have any doubt whatsoever that I can be fair and impartial in the sentencing in this matter," Nance said.
But he had stern words and pointed questions for prosecutors about what effect Trump's comments would have on public perception of the case. He indicated he would issue a written ruling later on the defense request to have the case thrown out over Trump's comments.
While campaigning, Trump repeatedly called Bergdahl a "dirty, rotten traitor" who deserved to be executed by firing squad or thrown out of a plane without a parachute. Nance previously ruled those comments were "disturbing" but didn't amount to unlawful command influence and noted the statements were made before Trump assumed his position at the top of the armed forces' command structure.
But last week Trump addressed his past comments after being asked about them at a news conference. He replied that he couldn't say anything more about the case, "but I think people have heard my comments in the past." That, the defense said, shows he harbors the same views as commander in chief.
Prosecutors argued Trump's comments didn't reaffirm his campaign-trail criticism and were narrowly focused on answering a reporter.
But Nance said he was having a "hard time" with prosecutors' interpretation, noting public confidence in military courts was something he had to consider.
"The member of the public that we are interested in maintaining confidence in the military justice system ... is going to be influenced by context," he said.
Nance said his interpretation was that Trump was essentially saying: "I shouldn't comment on that, but I think everyone knows what I think on Bowe Bergdahl."
The White House issued a statement Friday that any military justice case must be "resolved on its own facts." White House media representatives didn't immediately respond to an email seeking comment Monday.
Sentencing was set to resume Wednesday because a defense attorney wasn't available Tuesday, the judge said.
Bergdahl, 31, pleaded guilty last week to desertion and misbehavior before the enemy. Prosecutors made no deal to cap his punishment, so the judge has wide leeway to decide his sentence. Several more days of testimony are expected.
Nance is expected to weigh factors including Bergdahl's willingness to admit guilt, his five years of captivity by Taliban allies, and serious wounds suffered by soldiers and a Navy SEAL who searched for him. Prosecutors are expected to present evidence or testimony about several wounded men.
Bergdahl, from Hailey, Idaho, was captured soon after walking off his remote post in 2009. He has said he was caged, kept in darkness and beaten, and tried to escape more than a dozen times. He has said his original intention in leaving post was to alert other commanders to what he saw as problems with his unit. Still, when he pleaded guilty, he told the judge his actions were inexcusable.
President Barack Obama brought Bergdahl home in 2014 in a swap for five Taliban prisoners at Guantanamo Bay, saying the U.S. does not leave behind service members. Republicans roundly criticized Obama.