Judge Andrew Napolitano was on “Shepard Smith Reporting” to weigh in on the news that Sgt. Bowe Bergdahl will be charged with desertion.

Bergdahl was held by the Taliban-linked Haqqani Network for five years until the U.S. traded five Guantanamo Bay detainees for his release.

Col. Daniel King today addresses the public to explain the charges against Bergdahl. He explained that Bergdahl has been charged with desertion, which carries a maximum confinement sentence of five years, and misbehavior before the enemy, which carries a sentence of possible confinement for life.

REACTION: Sgt. Bowe Bergdahl Charged With Desertion

Napolitano said that it’s not too late to seek the death penalty, but that it sounds like it’s off the table. If the death penalty was being considered, Napolitano said King’s language would have been harsher and the allegations more precise.

The “trigger for the death penalty” would be if soldiers died as a direct result of efforts to find or rescue Bergdahl, Napolitano said.

Napolitano said he suspects that much of the testimony will be things that Bergdahl told the government in the past nine months of interrogation.

To be convicted of desertion, the prosecution must prove that Bergdahl quit his place of duty and with the intent to shirk his service. They must also prove that the duty he was supposed to perform was hazardous and important, and that the accused knew he was required for duty. The prosecution must also show that he remained absent until a certain date. Napolitano pointed out that Bergdahl sent clothes and personal items home before leaving his post, which indicates that he knew he would be gone for a long time.

To be convicted of misbehavior before the enemy, the prosecution must prove that the accused had a duty to defend a unit or place, committed misconduct, thereby endangering the unit or place, and that the act of misconduct occurred in front of the enemy.