UPDATE, 2:30 P.M.: Last night a guest on The O'Reilly Factor reported that the Army had decided to charge Bowe Bergdahl with desertion. This morning, NBC confirmed this report on the air, citing "senior defense officials." Since then, the Army has pushed back against these reports. A spokesman for the command responsible for prosecuting Bergdahl told the Military Times that "no decision's been made."
Last night a guest on the O’Reilly Factor, retired Army Lieutenant Colonel Tony Shaffer, broke the story that the Army had decided to charge Bowe Bergdahl with desertion. He also said that there was a "titanic struggle" shaping up behind the scenes, because the White House opposed the decision. This didn’t make a great deal of sense, inasmuch as the fact that the decision to charge Bergdahl had been made indicated that any such "titanic struggle" was not "shaping up" but was over. Indeed, NBC confirmed this morning that Bergdahl has been charged.
So it appears that whatever struggle there was has been lost by the White House. Shaffer fingered Ben Rhodes as the "point man" for squelching the Bergdahl prosecution, an assertion that should surprise no one. (Discussion question: Has anyone done more harm to American national security in the past seven years than Ben Rhodes? Other than his boss, of course!)
Based on what Shaffer reported, it looks like that the Army’s general officer corps has stood tall and done what, according to the facts and the law, should be done. Every piece of information that has been released about his case indicates that Bergdahl was a deserter. No one has offered any plausible evidence to contradict this charge.
If Obama or his aides made an attempt to pressure the general investigating Bergdahl’s actions into not charging him, this could potentially constitute unlawful command influence. Lawyers with expertise in such matters disagree about whether or not unlawful command influence can really occur with respect to the decision to press charges, as opposed to attempting to influence subsequent hearings and trials. Moreover, unlawful command influence is usually a charge levied by the defense in courts-martial. In this case, the White House was trying to influence matters on behalf of the defendant, so it is unlikely that anyone will ever make a legal complaint about it.
But such behind-the-scenes maneuvering is, at the least, extraordinarily slimy—and unnecessary. The president could have, at any time, stopped Bergdahl’s prosecution by appointing himself the "convening authority" in the case. He could then declare that the prosecution would not proceed. As a legal matter, he need offer no justification whatsoever. He is the commander-in-chief, and thus the final authority. As a political matter, he could have released a statement noting that, in his judgment, Bergdahl’s years in captivity had been punishment enough for any alleged misconduct, and that it was time for the military and the nation to move on.
This would be controversial and, as a procedural matter, likely unprecedented—but it would have been entirely legal. It would also display some integrity. The alleged effort to pressure Army officers to kill this prosecution in its crib, presumably because the "optics" are bad for the White House, displays the exact opposite. The instinct to proceed like this explains a great deal about why the president is so spectacularly unpopular with the troops, who, in general, think deserters should get what’s coming to them, but who would respect a commander-in-chief who looked them in the eye and disagreed.