Bowe Bergdahl pushed himself into the headlines yet again. The collective breath the nation has been holding as it waited to hear his sentence for desertion and misbehavior before the enemy was released in a whoosh when no sentence was entered yesterday. Instead of accepting his punishment, Bergdahl, through his counsel, once more pointed an accusatory finger at President Trump, alleging he can’t get a fair trial. This time, he was upset because President Trump, on October 16^th, said he wouldn’t discuss the case. He went on to say, “But I think people have heard my comments in the past.” What the Times story doesn’t include is the beginning of the President’s statement. “They’re setting up sentencing, so I’m not going to comment on him.” When viewed together, the impact of the comment changes.

However, according to Bergdahl’s counsel, that “but” is enough to prevent him from receiving a fair trial. Well, in this case, a fair sentencing. In fact, according to arguments made on Bergdahl’s behalf, the only way he could receive a fair trial is to take any possibility of jail time off the table.

Compounding the problem, the military judge, Col. Jeffrey R. Nance, seems to be buying into the argument, at least to some degree. According to Col. Nance, the President’s statement was tantamount to him saying, “I shouldn’t comment on that, but I think everyone knows what I think on Bowe Bergdahl.” Nance went on to say there is “a vital public interest in ‘maintaining confidence in the military justice system.’”

He is right. However, what makes this case any different from any other criminal trial that has received a great deal of publicity? Every year there are trials where the crime was so heinous, a media circus resulted. In those cases, potential jurors are carefully screened, making sure they can listen to evidence and come to a verdict based on the evidence and not on emotion or politics or anything else. Judges who hear bench trials have to do the same thing. They have to render verdicts based on the law and on the evidence presented and nothing else.

So why is Col. Nance so concerned about appearances, especially after Bergdahl pled guilty? The simple answer is because the President is his boss, as well as the prosecutor’s boss. He is worried about appearances. But are those appearances what the average citizen is worried about? I’d say no. Bergdahl pled guilty and now the country is ready to hear what sentence Nance feels is appropriate for his crimes. If Nance agrees to no jail time, I have no doubt he will lose the respect of much of the military but the public as well.

But there’s another possibility, one Nance himself opened. According to the NY Times article, Nance offered Bergdahl the opportunity to withdraw his plea. Bergdahl declined, but there is nothing preventing him from changing his mind. If he does, Nance could allow the plea change and, if that happens, we are back to square one.

It is important to remember that Bergdahl has never accepted responsibility for his actions or the consequences of those actions. “At the time, I had no intention of causing search and recovery operations. . . I believed they would notice me missing, but I didn’t believe they would have reason to search for one private.” Somehow, he missed that part of training where he was told 1) you don’t desert your post and 2) if you go missing, we will look for you, especially if we are in a war zone.

President Trump isn’t the only politician to have condemned Bergdahl. Senator John McCain said Bergdahl was “clearly a deserter,” and then went on to say Congress would investigate if he wasn’t sentenced to jail time. Others have voiced their opinions as well. So have members of Bergdahl’s unit.

“Accepting the risk of the maximum penalty with a naked plea is very unusual,” said Geoffrey Corn, a former Army lawyer and lieutenant colonel who is now a professor at South Texas College of Law in Houston, “But it is the best type of plea to show a defendant is serious about taking responsibility for their misconduct.”

Except Bergdahl has yet to do so. Accepting responsibility for misconduct means also accepting the consequences, something Bergdahl continues to prove he is unwilling to do. How much longer is the Army and the American public going to have to wait for justice to be done?