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Why Donald Trump Could Be Subpoenaed to Testify in Bowe Bergdahl Trial


“We've made no decision yet on whether to call Mr. Trump as a witness."

Caption:GRAND RAPIDS, MI - DECEMBER 21: Republican presidential candidate Donald Trump speaks to guests at a campaign rally on December 21, 2015 in Grand Rapids, Michigan. The full-house event was repeatedly interrupted by protestors. Trump continues to lead the most polls in the race for the Republican nomination for president. (Photo by Scott Olson/Getty Images)

Republican presidential candidate Donald Trump may be called upon to testify in U.S. Army Sgt. Robert Bowdrie "Bowe" Bergdahl's summer trial because Bergdahl's lawyers are concerned that Trump's inflammatory comments regarding the court-martial may have damaged Bergdahl's chances for a "fair" and "impartial" trial.

Throughout his campaign, Trump has not been shy about relating his distaste for Bergdahl and the circumstances concerning his disappearance, capture in Afghanistan and the prisoner exchange that resulted in his release in May 2014. While on the campaign trail, Trump has called Bergdahl a "no-good traitor" and a "dirty rotten traitor" and has said that the sergeant "should have been executed," according to Bloomberg. These comments did not sit well with Bergdahl's lawyers.

This undated image provided by the U.S. Army shows Sgt. Bowe Bergdahl. The Taliban proposed a deal in which they would free the U.S. soldier held captive since 2009 in exchange for five of their most senior operatives at Guantanamo Bay, while Afghan President Hamid Karzai eased his opposition Thursday June 20, 2013 to joining planned peace talks. (Image source: AP) Sgt. Bowe Bergdahl (AP)

“The First Amendment rules out any effort to prevent Mr. Trump from making these defamatory remarks,” Bergdahl’s lawyers stated in a court filing, according to Mediaite. “The fact remains, however, that his pattern of doing so, with the full glare of public attention before mass audiences around the country, materially threatens Bergdahl’s right to fair consideration by the convening authority as well as in a court-martial.”

If Trump were to be called to the stand, he would be required to testify in the midst of the presidential election season. Trump could be subpoenaed if Bergdahl's lawyers successfully argue that his alleged "defamatory" comments substantially harmed the sergeant's right to a "fair" and "impartial" trial. If Trump refuses to attend the court-martial if and when he were to be called, he could be subpoenaed, Mediaite noted.

“We've made no decision yet on whether to call Mr. Trump as a witness,” lawyer Eugene Fidell told Bloomberg. “We continue to monitor his defamatory statements.”

Bergdahl, who has been accused of deserting his unit in Afghanistan in 2009 just before his 5-year capture, is set to face his court-martial in August. If he is convicted of the charges for misbehavior before the enemy and desertion, Bergdahl could face a sentence for life in prison.

Although the court may not be entirely convinced that Trump's public influence over the trial proceedings and the jury's opinions are legally substantial, it may still grant Fidell's motion to hold a hearing on the subject, Bloomberg noted. Fidell is also calling for the public release of transcripts from Bergdahl's interview with Maj. Gen. Kenneth Dahl, which allegedly concludes that Bergdahl should face no further imprisonment.

“Mr. Trump and the echo chamber that has amplified his voice beyond all reason have a right to free speech,” Fidell wrote in his court filing, according to Bloomberg. “Simple fairness demands that Sgt. Bergdahl at least be able to defend himself by permitting public access in real time to documents that put the lie to the kind of character assassination to which he is being subjected.”

Follow Kathryn Blackhurst (@kablackhurst) on Twitter

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