No, Trump hasn’t just sabotaged the Saipov case .
President Trump’s remarks in the immediate wake of the murderous rampage in New York City this week were predictably inappropriate, inaccurate, uninformed, and delusional but they won’t have any significant impact on the outcome of the federal terrorism case against Sayfullo Saipov.
No judge is going to take the death penalty off the table—if federal prosecutors put it there in the first place—because Trump recklessly called for the imposition of capital punishment before the suspect was tried and convicted. No judge is going to kick off a potential juror from the panel because they heard about Trump’s remarks or were otherwise influenced by the sweeping prejudicial publicity that has marked this story. No judge is going to move the case to New Jersey, or Albany, out of fear that Saipov cannot get a fair trial in Lower Manhattan, near the scene of the crime.
There are three ways in which this issue will play out. All three are common in high-profile cases. The first presumes that federal prosecutors do seek the death penalty. (Which is likely seeing as Saipov killed eight and injured eleven.) If that happens, it’s possible that Saipov’s lawyers will cite the president’s remarks in a pretrial motion that argues their client must be spared even the possibility of capital punishment. Trump’s comments, the defense will argue, show that the government prejudged its decision to seek the death penalty, violating due process principles and the Justice Department’s own laborious procedures for making that decision.
If that happens, federal lawyers will respond, simply, by telling the court that they essentially ignored Trump’s Tweets and did follow their own guidelines. And that will be that. The government will win and the defense will lose unless the judge for one reason or another refuses to believe the sworn statement of government lawyers. And that’s just not going to happen. Something very similar happened 20 years ago at the start of the Oklahoma City bombing trial in Denver. Both President Bill Clinton and Attorney General Janet Reno made comments about the death penalty that lawyers for Timothy McVeigh and Terry Nichols tried to use against the government. The defense lost that fight then. And it will lose this fight now.
Speaking of comparisons, Trump’s interference in the Saipov case is far less legally significant than it was (and is) in the travel ban cases. In those cases, the Trump administration was ginning up a dubious policy while the president was issuing racist Tweets defining the contours of those policies. In this instance, the policy—the Justice Department’s death penalty guidelines—have been in place for decades and Trump hasn’t mentioned a word about getting rid of them (likely because he has no idea they exist). Wake me when Trump or Attorney General Jeff Sessions announce they are ripping up the DOJ’s death penalty manual; then we’ll have a significant legal event.
Another way in which Trump’s comments will briefly play a role in the Saipov case has to do with jury selection. The defense will point to Trump’s Tweets as well as media coverage of the attack and urge the judge to remove from the potential juror pool anyone whose perceptions may have been influenced by what they saw or heard or read this week. Prosecutors will respond by arguing that no New York resident who otherwise is qualified to serve on the jury could have missed the news, and that jurors have proven through time that they can put aside preconceived notions about a crime, and judge a defendant based solely on the evidence in court.
The judge will side with prosecutors, probably after making a brief speech in which the integrity and the objectivity of jurors is praised. There will be the promise of extra questions asked during voir dire designed to ferret out those potential jurors who want to be on the panel just so they can convict Saipov and recommend a death sentence. Jury selection will take longer than it otherwise would. And even those jurors who say they remember Trump’s comments will end up sitting in judgment on Saipov. Fearless prediction? This part of jury selection will elicit some searing criticism of Trump from potential jurors, who will be asked what they think of the president and his Tweeting.
Finally, Trump’s comments will likely come into play if the defense seeks to move the trial out of Lower Manhattan. Saipov’s lawyers would argue that their client cannot get a fair trial so close to where the crime occurred and that the president’s remarks were particularly impactful in New York. This dog won’t hunt. Venue changes rarely happen even where there is far more reason to move a trial than exist here. Prosecutors will respond by telling the judge that Trump’s comments are national in scope—who is more national a figure than the president?— and that no venue change can remedy that. If this case goes to trial—and I have my doubts it will—it will be in New York City.
Thousands of words already have been written about how Trump’s comments “complicate” Saipov’s trial. Well, there are complications and there are complications but nothing the president has said so far is going to do anything but add a few more days to what already figures to be a long process. He hasn’t sabotaged the government’s case the way he did with the travel ban. He hasn’t undermined the rule of law the way he usually does when he talks about America’s judges and the judicial system. All he’s done, again, is shown his propensity for talking before he knows what the hell he is talking about.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.