IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
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1 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Sergeant ROBERT B. BERGDAHL, MOTION FOR EXPEDITED HEARING U.S. Army, Appellant, v. PETER Q. BURKE, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U. S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority, and Crim. App. Misc. Dkt. UNITED STATES, No Appellees. USCA Dkt. No /AR TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: This case, Hearst Newspapers, LLC v. Abrams, No /AR, and Bergdahl v. Abrams, No /AR raise related issues. Briefing is complete in this case and will be complete in the other two just after Thanksgiving. As he did yesterday in No /AR, Sergeant Bergdahl respectfully requests expedited hearing in accordance with Rule 19(e, which provides that the Court, will, whenever practicable, give priority to writappeal petitions. 1
2 The passage of time is materially prejudicial to SGT Bergdahl. As we explained in moving for an expedited hearing in No /AR, Donald Trump, the leading contender for the Republican nomination for President of the United States, has repeatedly described SGT Bergdahl as a. Mr. Trump has continued to do so even after we complained on August 20, that this language is defamatory and used with reckless disregard for the truth. The following table lists the known occasions on which Mr. Trump has defamed SGT Bergdahl, including as recently as last Wednesday: Date Venue Apr. 9, Apr. 23, June 16, July 21, Aug. 6, The John Fredericks Show, VA (radio Campaign launch, NYC Bluffton, SC GOP Debate I, Fox News, Cleve- Traitor, lost 5 or 6 lives Traitor, no-good No-good, ; 6 killed Source Statement Traitor Breitbart News interview tical-insighter-trump-unplugged-on-thejohn-fredericks-show/ -politics/wp//06/16/full-textdonald-trump-announces-a-presidentialbid/ 1/watch-a-replay-of-fox-news-primetime-presidential-debate/?#sp=showclips 2
3 Aug. 19, Aug. 21, Aug. 27, Oct. 8, Oct. 26, 3, 10, 11, 12, 16, 18, land, OH Derry, NH Mobile, AL Greenville, SC Las Vegas, NV 7-trump-says-bergdahl-should-beexecuted Atkinson, NH GMA, ABC, New York, NY Springfield, IL, 49:54ff Manchester, NH Fort Dodge, IA, 23:19ff Knoxville, TN s//11/13/the-most-stunning-quotesfrom-donald-trump-iowaremarks/uogohlwclqhwergmyeio5j/story.html post-politics/wp//11/18/nine- Worcester, MA ; 6 killed Traitor; at least 6 killed 6 died; he went to the other side No-good Dirty Traitor X2, 6 people died looking for him No good, dirty, trumps-audacious-southern-spectacle-ispart-of-hisstrategy//08/21/31da2a e5-846d-02792f854297_story.html 3
4 things-that-happened-during-donaldtrumps-visit-toworcester/?hpid=hp_hp-more-topstories_pp-trump- 115am%3Ahomepage%2Fstory 15/11/18/watch-live-donald-trumphosts-rallyworcester/a444uyJfI6yU9uvg6G7hnK/story.htm l The First Amendment rules out any effort to prevent Mr. Trump from making these defamatory remarks. 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 SGT Bergdahl s right to fair consideration by the convening authority as well as in a court-martial, if any charges are in the end referred. SGT Bergdahl is not in a position either to sue Mr. Trump at this time, or to make public statements, demand the microphone or hog the camera as Mr. Trump continues to do. All SGT Bergdahl hopes for is something more closely approximating a level playing field in the court of public opinion by ensuring that the public has access without further delay to the unclassified AR 15-6 report prepared last year by Major General (as he then was Kenneth R. Dahl as well as the unclassified transcript of his interview with General Dahl. As we observed last month: 4
5 Mr. Trump and the echo chamber that has amplified his voice beyond all reason have a right to free speech. 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. The passage of time has permitted Mr. Trump to continue to beat up, defame and generally vilify SGT Bergdahl most unfairly. The Court should set the case down for hearing in December. We made a similar motion yesterday in No /AR. Respectfully submitted, /s/ Eugene R. Fidell Eugene R. Fidell CAAF Bar No Feldesman Tucker Leifer Fidell LLP th Street, N.W., Ste. 400 Washington, DC ( (cellphone efidell@ftlf.com Civilian Defense Counsel /s/ Franklin D. Rosenblatt Franklin D. Rosenblatt Lieutenant Colonel, JA CAAF Bar No U.S. Army Trial Defense Service 9275 Gunston Road, Suite 3100 Fort Belvoir, VA franklin.d.rosenblatt.mil@mail.mil ( Individual Military Counsel /s/ Alfredo N. Foster, Jr. Alfredo N. Foster, Jr. Captain, JA CAAF Bar No U.S. Army Trial Defense Service Ft. Sam Houston 5
6 Joint Base San Antonio, TX ( Detailed Defense Counsel /s/ Jonathan F. Potter Jonathan F. Potter Lieutenant Colonel, JA CAAF Bar No Defense Appellate Division ( Appellate Defense Counsel Certificate of Filing and Service I certify that I have, this 21st day of November, filed and served the foregoing motion by ing copies to the Clerk of Court and all counsel at the following addresses: efiling@armfor.uscourts.gov jihan.e.walker.mil@mail.mil usarmy.pentagon.hqda-otjag.mbx.usalsa-gad@mail.mil dibarguen@hearst.com (Diego Ibarguen, Hearst et al. jbishop@hearst.com (Jennifer D. Bishop, Hearst et al. shayana.kadidal@gmail.com (Shayana Kadidal, CCR rvanlandingham@swlaw.edu (Rachel VanLandingham, NIMJ mljucmj@court-martial.com (Philip D. Cave, NIMJ daniel.kummer@nbcuni.com (Daniel Kummer, NBC Eugene R. Fidell Civilian Defense Counsel 6
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