Everyone is talking about Bowe Bergdahl. Some are saying that the charges against him – desertion and misbehavior before the enemy – are not enough, and that he should face a firing squad. Others are saying that he has suffered enough at the hands of his Taliban captors, and he should be left alone to heal and get back to normal life.

Desertion is a unique offense, in that the only proper response is a military trial. When soldiers get arrested for DUI, they face both civilian consequences and military consequences. When soldiers get involved in domestic abuse, they face both civilian consequences and military consequences. Desertion is one of the few offenses for which there really is no civilian comparison, which is why so many civilians can be swayed by an argument like, “He has already suffered enough.” But the reality is that desertion – especially in a time of war – has always been a capital crime. The Manual for Courts-Martial reads,

Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

The last American deserter put to death, however, was Eddie Slovik in 1945. The most severe punishment received by a United States soldier since September 11, 2001, is 24 months in prison. If recent history is any indicator, those calling for Bergdahl to be put to death are not likely to get their way.

So what will happen to Bowe Bergdahl? The Army will likely Court Martial him, but the question remains whether or not a fair trial is possible.

Assigned a desk job at Fort Sam Houston, Bergdahl is constantly accompanied by two officers because of the hostility still directed at him by other soldiers. Some believe that this may lead to a Court Martial outcome that is harsher than necessary, since it may be difficult to find officers and soldiers to who can remain impartial to participate in the proceedings.

But there is another factor that could drastically affect the outcome of a Court Martial. When the prisoner swap was first announced, I wrote about it in the context of something called UCI: Unlawful Command Influence. Essentially, UCI is what happens when someone with a lot of rank or power makes a public statement or takes an action that interferes with the judicial process.

President Obama is no stranger to UCI. Over the years, “the police acted stupidly,” and “if I had a son, he would look like Trayvon Martin.” And now, by allowing Susan Rice to speak of Bergdahl’s “honorable service” at the time of his release and by saying this week that he stands by his decision to make the prisoner exchange, he inserts himself into a judicial process that should be left entirely up to the military.

Can Bowe Bergdahl receive a fair trial? That remains to be seen. But if he is ever to receive a fair trial, it will be in spite of the President’s actions rather than because of them. And the proceedings will need to be overseen by the military alone.