The legal precepts and founding principles of the United States say that the man who killed eight people with his truck on Tuesday evening can expect a swift, fair, fact-based trial, conducted within the separate and co-equal judiciary branch of the government.
The practical realities of what the United States is today, however, signal that Sayfullo Saipov will get no such thing. Instead, the head of the separate, co-equal executive branch is prepared to climb head, shoulders, and Twitter fingers into the criminal process that will evolve out of the case — marking the gaudy rupture of a political and legal norm that distinguishes an open society from an authoritarian one.
“SHOULD GET DEATH PENALTY,” the President of the United States tweeted of Saipov just before midnight on Wednesday. “Should move fast. DEATH PENALTY!” he reiterated Thursday morning in another message.
The criminal court process is built on factual inquiry, evidence-based deliberation, and legal protections for the rights of accused criminals. The emotional temptation to toss those rules aside when someone is certain of a given person’s guilt is perhaps human. But by stepping across the lines the Constitution carefully draws between those who write policy, those who put policy into effect, and those who adjudicate resulting disputes, President Donald Trump is taking the everyman’s impulse for vengeance to a dangerous place of actual power.
The tweets may make it harder for a federal prosecutor to convict Saipov — or to even seek the death sentence Trump says he wants.
Presidents carefully avoid jumping into ongoing criminal cases because their broadcast commentary can give a defense attorney grounds to argue their client cannot get a fair trial, multiple legal experts have noted. Trump’s specific public demand on sentencing could also jam up legal arguments for seeking a death sentence in the case. The Department of Justice has stringent standards for deciding whether or not prosecutors will ask for a capital sentence.
“Each such decision must be based upon the facts and law applicable to the case and be set within a framework of consistent and even-handed national application of Federal capital sentencing laws,” the DOJ rules document says. “Arbitrary or impermissible factors — such as a defendant’s race, ethnicity, or religion — will not inform any stage of the decision-making process.”
Trump’s prejudicial tweets will make it hard for DOJ lawyers to argue they decided to seek Saipov’s death independent of pressure from their boss’s boss, according to former DOJ press official and current MSNBC employee Matthew Miller. Certainly the president’s failure to call for the state to kill the racist who killed Heather Heyer with a vehicle in Charlottesville in August would suggest the president himself is not enforcing “consistent and even-handed national application” of the federal death penalty.
Trump’s authoritarian tone on Saipov is of a piece with his broader conduct as president to date. His reliance on lies and misinformation is symptomatic of authoritarian leadership, as experts on the subject have repeatedly told ThinkProgress.
His cozy relationships with foreign autocrats like Phillipines President Rodrigo Duterte and Saudi Arabia’s King Salman bin Abdul Aziz reflect a personal affection for strongman tones and tactics. The false nostalgia on which Trump’s domestic political brand is based specifically invokes a time when the United States sent hundreds of thousands of armed men across oceans to try to destroy those very same phenomena.
But as with most things, Trump is also zig-zaggingly inconsistent even on the legal questions surrounding Saipov’s future trial. After initially harping on the idea of rushing Saipov off to Guantanamo Bay and dumping him into the interminable, secretive military tribunal system, Trump is now hinting that Saipov might stay put and face a jury trial in New York.
“Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer,” he tweeted Thursday. “There is also something appropriate about keeping him in the home of the horrible crime he committed,” he went on.
While the president did not acknowledge it, the standard criminal courts system has also successfully prosecuted high-profile terrorism cases in the past — even, in the case of embassy bomber Ahmed Ghailani, after the use of torture tactics by the military and intelligence agencies had destroyed much of the government’s legal case. Tribunals have also tended to hand down lighter sentences than criminal courts.
Treating people like Saipov like “enemy combatants” also glorifies and legitimizes the claims that extremist groups make about their own activities, as Maj. Gen. Paul Eaton (Ret.) has noted in endorsing the use of criminal trials. “We’ve given them the treatment they deserve,” Eaton said. “That of lowly criminals, not warriors.”