Unpacking The Ways Trump's NYC Tweets Violate Due Process

Can somebody get a message to the president that he's not helping?

New York City suffered a terrorist attack on Halloween and, because we’re New York City, we’re handling it like adults. The Halloween parade went on, justice will be done, and we will not turn on our Uzbekistani neighbors.

At the polar opposite of “adult” behavior lies the President of the United States. Because the alleged attacker is brown, Donald Trump is using the tragedy to gin up anti-immigrant hate among his bigoted and xenophobic base. You know, just like any other week in Trumpland.

Trump’s political move here is entirely predictable. It’s why he’s president. The bigots got their man and they’re loving it.

But Trump’s legal moves are, also predictably, very bad for those of us who would like to see terrorists prosecuted to the fullest extent of the law. His tweets about the suspect, Sayfullo Saipov, are not just stupid — they’re actively damaging our ability to prosecute him fairly and effectively.

Let’s start with the merely stupid:

“I would certainly consider that, yes,” Trump said in response to a question from Major Garrett of CBS. “Send him to Gitmo.” Trump also urged “quick justice” and “strong justice” for Saipov, calling him “this animal.”

Note that this Gitmo stupidity is a problem Trump shares with “normal” Republicans:

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“Take him to Guantanamo,” Sen. John McCain (R-Ariz.) told reporters on Capitol Hill. “He’s a terrorist, he should be kept there. There’s no Miranda rights for somebody who kills Americans.”

Sigh.

  • There is no precedent for shipping a person who kills on American soil, captured in America, to Guantanamo Bay.
  • Saipov is a legal permanent resident here. Calling him an “enemy combatant” would reek of bigotry.
  • Gitmo is not supposed to be “more extreme” justice. In fact, the fact that we’ve used Gitmo as our offshore torture account is one of the reasons we have real problems closing it down and applying an semblance of appropriate legal process to many who have been detained there.
  • “Quick” justice is absolutely the worst kind of “justice” possible. Depending on how many Ford F-150s you own, you might want to debate me on whether “quick justice” is preferable to “no justice at all,” but absent an emergency situation, there’s really no reason to rush justice.
  • THERE. ARE. MIRANDA RIGHTS. FOR PEOPLE WHO KILL AMERICANS. THAT’S THEIR WHOLE POINT! The f**k is this old man TALKING ABOUT?

Trump has since backed off his Gitmo routine. Prosecutors and courts can and will just ignore this foolishness.

But this, they probably can’t ignore.

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The very best thing you can say about the president here is that he’s trying to poison the jury pool against the suspect.

What happens now is that Saipov’s defense attorneys will argue that he cannot get a fair trial because the PRESIDENT has not only already convicted him, but sentenced him to DEATH. That’s an argument any public defender right out of law school will make for Saipov, thanks to the president’s tweets.

And the BEST CASE SCENARIO is that a judge says, “Yeah but, how many people really listen to what the president says?” Since any potential Saipov trial will take place in or around New York, the argument that people here don’t listen to or even respect the President of the United States just might hold enough water that a court will agree that Saipov can be tried, fairly.

Otherwise, Trump has likely already doomed any patina of due process.

I’m not making this up or pointing out a small legal “technicality.” Judges and courts take due process SERIOUSLY. The president trying, convicting, and SENTENCING someone in the court of public opinion will cause problems.

AT THE VERY LEAST, Trump has probably already made it so Saipov CANNOT be put to death. Look at what’s happening in the Sgt. Bowe Bergdahl military tribunal. During the campaign, before he was even president, Trump was out there calling Bergdahl “a no-good traitor who should have been executed.” Bergdahl eventually pleaded guilty, but now, at sentencing, the judge says that he has to consider Trump’s statements as MITIGATION for any potential sentence.

He could have gone further. Bergdahl’s lawyers wanted the whole case dismissed because Trump’s statements amounted to “unlawful command influence.”

The military context is different from the federal criminal context, obviously. But when the President of the United States says you should be KILLED before you’ve even been tried, it causes real problems for the administration of justice.

So, if you care about making sure terrorists face justice, for the love of God, PLEASE un-follow the President. Please stop retweeting him. YOU’RE RUINING IT FOR EVERYBODY.

The only thing that’s going to keep the Saipov prosecution on the rails is the fact that you can easily find 12 New Yorkers off the street who will testify in front of a judge that Donald Trump is #NotMyPresident and his crazy and stupid views hold no influence over them.

Trump Says He’d ‘Certainly Consider’ Sending New York City Attacker To Guantanamo Bay [HuffPost]
Trump’s criticism of Bergdahl will be considered as mitigation evidence in sentencing, judge says [ABA Journal]


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.