Judge Nap: 'Misbehavior' Charge Against Bergdahl Will Be Very Hard to Prove
Military prosecutors have chosen to charge Army Sgt. Bowe Bergdahl with misbehavior before the enemy.
The rare charge would carry a stiffer penalty - potentially a life sentence - than just charging Bergdahl with desertion.
"I've never seen it charged," Walter Huffman, a retired major general who served as the Army's top lawyer, said of the misbehavior charge. "It's not something you find in common everyday practice in the military."
Bergdahl could face a life sentence if convicted of the charge, which accuses him of endangering fellow soldiers when he "left without authority; and wrongfully caused search and recovery operations."
Huffman and others say the misbehavior charge allows authorities to allege that Bergdahl not only left his unit with one less soldier, but that his deliberate action put soldiers who searched for him in harm's way. The Pentagon has said there is no evidence anyone died searching for Bergdahl.
"You're able to say that what he did had a particular impact or put particular people at risk. It is less generic than just quitting," said Lawrence Morris, a retired Army colonel who served as the branch's top prosecutor and top public defender.
The Obama administration has been criticized both for agreeing to release five Taliban operatives from the Guantanamo Bay prison and for heralding Bergdahl's return to the U.S. with an announcement in the White House Rose Garden. The administration stood by the way it secured his release even after the charges were announced.
Judge Andrew Napolitano reacted this morning, emphasizing that the "misbehavior" charge is not the same as charging him with collaborating with the enemy.
Bergdahl walked away from a remote outpost and spent five years as a Taliban prisoner. His former platoon mates have accused him of deserting them and going off in search of the enemy.
The judge said prosecutors would need to show a jury that Bergdahl intentionally did something wrong while in Taliban hands in order to harm the United States.
Napolitano called the case "crazy," pointing to the personal involvement of President Obama in signing off on the controversial prisoner swap.
He said if he were representing Bergdahl, he would try to call Obama to the stand at trial.
The judge said he believes the stiffer charge may have been brought in order to bring a guilty plea from Bergdahl to a lesser charge, thus avoiding a trial "so that the president is not humiliated or embarrassed by being a witness."
Watch the judge's analysis above.