The case against Bowe Bergdahl

The latest on Bowe Bergdahl. 'Is It Legal?' reacts on 'The O'Reilly Factor'

This is a RUSH transcript from "The O'Reilly Factor," December 6, 2016. This copy may not be in its final form and may be updated.
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O'REILLY: Thanks for staying with us. I'm Bill O'Reilly. In the "Is It Legal" segment tonight, very intense situation surrounding Sergeant Bowe Bergdahl. As you may know, he is about to go on trial for deserting his unit in Afghanistan.

Among the charges levelled to Bergdahl, at least, two soldiers were wounded searching for him after he left his post. Now a judge will decide whether that evidence will be admitted in the case. With us our "Is It Legal" team, Kimberly Guilfoyle and Lis Wiehl.

Why wouldn't a judge allow that in? That's part of the whole thing.

LIS WIEHL, FOX NEWS LEGAL ANALYST: Actually I agree. Let me ask you a question. Judge might say it's not relevant to the charges. I don't agree with that. The judge could say even if it's relevant, it's so prejudicial it might harm his case and so there --

O'REILLY: Of course, it would harm his case.

WIEHL: That's what's called good evidence, right?

O'REILLY: Yes.

WIEHL: There is something in the law that says it's relevant.

O'REILLY: When is the judge going to make -- I understand it, but it's part of what happened.

WIEHL: Right.

O'REILLY: When is the judge supposed to make the decision?

KIMBERLY GUILFOYLE, CO-HOST OF FNC'S "THE FIVE": OK. So he can take his time essentially to make it, but December 16th is the next pre-trial hearing.

O'REILLY: Right.

GUILFOYLE: He will make up his mind. He'll give his ruling then, but this is really --

O'REILLY: Is he going to give his ruling on December 16th?

GUILFOYLE: Yes. Yes, he will.

O'REILLY: On this desertion thing?

GUILFOYLE: Yes. Here's the bottom line, this evidence is probative and I feel relevant. It's not going to be something too prejudicial. It goes directly to the charge of misbehaving before the enemy. He is only asking -- the prosecutors only have two specific instances of officers and soldiers that were injured during this time.

O'REILLY: Right. There's two of them. One was dead -- one was killed, right?

GUILFOYLE: Right. One particular had -- was shot in the head. Traumatic brain stroke but then survived and the other is Morito (ph), was struck in the right hand by --

O'REILLY: The guy with the traumatic brain injury is still alive?

GUILFOYLE: Yes. He ended up surviving.

O'REILLY: So if you didn't watch us last week, Wiehl predicts that President Obama will not pardon Bowe Bergdahl.

WIEHL: Correct.

O'REILLY: Because the trial is going to be in April, the formal trial. And you, Guilfoyle, predict he will pardon Bowe Bergdahl.

GUILFOYLE: Correct. And you, O'Reilly --

O'REILLY: Who is always --

WIEHL: Right.

O'REILLY: Thank you.

WIEHL: Because you two are agreeing with each other.

O'REILLY: What do I predict?

GUILFOYLE: That he will be pardoned on the last day in office.

O'REILLY: Yes. I believe Barack Obama on his last day in office will pardon a whole bunch of people.

WIEHL: No. Well, yes, he will.

O'REILLY: Right, including Brian Kilmeade.

GUILFOYLE: For crimes -- can we get one for Wiehl?

O'REILLY: I don't know about that.

GUILFOYLE: For crimes against "Is It Legal?"

O'REILLY: President Obama does not want this trial to go forward particularly if that ruling December 16th says that this evidence that the two soldiers were hurt searching for this deserter.

WIEHL: The evidence will come in, but I still maintain with my prediction that once Obama said I have already stuck my neck out once, I'm not going to do it again.

GUILFOYLE: There were others that were injured and lost their lives.

O'REILLY: It should be noted that we will not put up any money for charity to back up her assertion. Ladies, thank you.

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