(USA Today) WASHINGTON — President Trump wants the death penalty for the suspect in New York City's terror-inspired truck attack, but his advocacy could make a successful prosecution more difficult, legal experts say.
As he has done in other cases, such as the immigrant and refugee travel ban and the military desertion of Army Sgt. Bowe Bergdahl, Trump appears to have tainted the judicial process, whether by impulse or design.
"NYC terrorist was happy as he asked to hang ISIS flag in his hospital room. He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!" the president tweeted around midnight Wednesday.
NYC terrorist was happy as he asked to hang ISIS flag in his hospital room. He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!— Donald J. Trump (@realDonaldTrump) November 2, 2017
Trump also suggested sending Uzbekistan native Sayfullo Saipov, 29, to the military prison at Guantanamo Bay, Cuba, before backing off because of potential delays. On Thursday, he tweeted, "There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!"
...There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!— Donald J. Trump (@realDonaldTrump) November 2, 2017
The problem with those and other comments, say both defense lawyers and former prosecutors, is that they all but convict Saipov before a trial. And coming from the nation's commander in chief, they can be seen as attempting to influence the judiciary.
Rick Jones, president of the National Association of Criminal Defense Lawyers and an attorney in New York City, called Trump's comments "highly inappropriate and damaging to our system."
"We have a justice system in this country that suffers from a lack of confidence and credibility," Jones said. "It doesn't do any good for the president or any executive to behave in a manner that seems to put undue pressure and to question the independence not only of the prosecution but also the judiciary."
While the president's comments could undermine the jury process and aid the defense in this case, Jones said, "they ultimately do more harm to the system at large."
'Traitors' and Muslims
Trump's angry fusillade on Twitter followed Tuesday's attack on a busy bicycle path leading to the 9/11 memorial in Lower Manhattan. Police said eight people were killed and 12 injured after Saipov — allegedly inspired by ISIS videos — struck them with a rented pickup truck.
Trump started down this road during last year's presidential campaign. In one case, he criticized Bergdahl, who faces charges of deserting his post in Afghanistan, as a "dirty rotten traitor." In another, he called for "a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on."
The Bergdahl comment was called into question Monday at the soldier's sentencing hearing. The judge, Army Col. Jeffery Nance, heard a last-minute defense motion to dismiss the case because Trump’s comments prevent Bergdahl from getting a fair sentence.
The Muslim comments have been cited by federal district and appellate court judges as evidence that Trump's travel ban on several predominantly Muslim countries represent religious discrimination, rather than an effort to improve national security.
"Clearly, the president's statements matter, his tweets matter," said Wells Dixon, senior attorney at the Center for Constitutional Rights in New York. "You need only look at judicial opinions from the various courts that have struck down the Muslim travel bans. The courts are very aware of and take seriously what the president says."
Stephen Vladeck, a law professor at the University of Texas School of Law who specializes in national security, said Trump's comments in Bergdahl's military justice case are more damaging because he is commander in chief.
“Here, it’s a more structural concern about contaminating the jury pool," Vladeck said in reference to Trump's call for Saipov to get the death penalty. "It opens the door to any defense lawyer seriously questioning the ability to impanel a fair and dispassionate jury, especially as to sentencing.”
'Just another factor'
Not everyone agrees Trump's comments will harm the case against Saipov.
"It's just another factor in all of the pre-trial publicity," said Richard Thompson, president and chief counsel of the Thomas More Law Center, a public interest law firm that supports a strong national defense and promotes moral values.
If the case comes to trial, federal prosecutors and defense lawyers will question potential jurors to ensure they would be able to weigh evidence against Saipov impartially, Thompson said.
"All of that is already going to be considered by the prosecution and will be used by defense counsel," said Thompson. "The fact that the president of the United States has commented on it may be a factor, but it is not going to be damaging."
John Yoo, a former deputy assistant attorney general who analyzed legal issues related to tough interrogation tactics for suspected terrorists after the 9/11 attacks, said in an email that Trump "is certainly correct that Saipov is eligible for the death penalty."
However, Yoo, now a professor at the University of California at Berkeley School of Law, said the presidential tweets appeared to be unprecedented.
"Trump’s statements will make it somewhat harder for prosecutors to win the death penalty. I cannot recall another time when a president demanded the death penalty, or any sentence, this early in a case," he said. "I cannot remember a president ever demanding the death penalty, either."
'A silly thing to say'
Raha Wala, the director for national security advocacy at Human Rights First, an advocacy group that presses the federal government and businesses to respect the rule of law, called Trump's death penalty comment "a silly thing to say."
"There's no question that the defense will be using that, I imagine, to great effect," Wala said.
And Joshua Dratel, a New York City criminal defense lawyer who has represented clients in more than two dozen terrorism cases, said it was “inconceivable” that potential jurors in Saipov’s case would not be influenced by Trump’s tweets.
“Eliminating the death penalty is the only way to stop politicians from interfering with the criminal justice system,” Dratel said.
Preet Bharara, the former U.S. attorney for the Southern District of New York who Trump fired, appeared to refer indirectly to Trump's Guantanamo prison suggestion in a podcast Thursday.
“Even though there’s a lot of talk in political circles about how this person must be declared an enemy combatant and how our system can’t handle it, I just want to say, in my experience, we can," Bharara said. "We prosecuted and held to account and got life imprisonment for terrorist after terrorist after terrorist, and it can be done in the right way with the system that we have."