President Trump’s tweets have been increasingly popping up in court cases, and their latest cameo comes in the proceedings involving the deadliest terrorism case in New York City since 9/11. Defense lawyers for the man charged in the Oct. 31, 2017, attack are citing them in efforts to save the defendant from the death penalty.
In October 2017, federal authorities say, Sayfullo Saipov nosed a rented flatbed truck down a bike path on Manhattan’s West Side, violently killing eight and injuring 12 others before being taken into custody. According to a federal indictment, the Uzbekistan native later told investigators he carried out the attack because of an allegiance to the Islamic State.
Saipov now faces a handful of federal charges, including murder, conspiracy, and providing material support or resources to a foreign terrorist organization. The New York Daily News reports that Attorney General Jeff Sessions is expected to decide in the coming weeks whether federal prosecutions will pursue the death penalty in the case.
But Saipov’s attorneys filed a motion Thursday in the Southern District of New York trying to yank a possible execution off the table.
Their evidence: Trump’s online bluster.
The legal argument, likely to be a long shot, rests on two Twitter bursts from Trump launched in the aftermath of the attack. One called for Saipov’s execution, and a more recent tweet attacked Sessions and the Justice Department for allowing the prosecution of two Republican members of Congress.
“We bring this motion today because President Donald J. Trump, in a tweet, dated September 3, 2018, insisted that Attorney General Sessions’ charging decisions should be governed by nakedly political considerations,” the motion states. “Previously, the President has repeatedly demanded that Mr. Saipov be killed by the government. The combined impact of the President’s statements make it impossible for Attorney General Sessions — who works for Mr. Trump — to discharge his statutory and constitutional obligation to exercise independent discretion in determining whether a capital prosecution is warranted.”
A day after the New York attack, Trump snapped out a message calling for Saipov’s execution.
“NYC terrorist was happy as he asked to hang ISIS flag in his hospital room,” the president tweeted. “He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!”
A day later, Trump again fired up his account to address the alleged attacker. “Should move fast,” he wrote. “DEATH PENALTY!”
On Nov. 3, 2017, Trump again blasted Saipov as a “Degenerate Animal.”
The alleged attacker’s attorneys also point to the tweetstorm Trump cracked over Sessions’s head on Sept. 3. “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department,” Trump wrote. “Two easy wins now in doubt because there is not enough time. Good job Jeff.”
“The combination of President Trump’s demand that the government kill Mr. Saipov, his more recent tweets advocating that political calculations should inform Justice Department charging decisions, and his personal attorney’s confirmation that Attorney General Sessions might be fired for not doing as the President wishes, make it impossible for Attorney General Sessions to fulfill his statutory duty to fairly and independently decide whether to seek the death penalty against Mr. Saipov,” attorneys wrote.
Whether this argument flies in a courtroom remains to be seen.
Comments from Trump may have played a role in at least one other criminal case, the sentencing of Army Sgt. Bowe Bergdahl, who in 2009 walked off a U.S. military outpost in Afghanistan and spent the next five years in enemy captivity. In November, Bergdahl was sentenced to a dishonorable discharge but avoided prison time. Trump, during his campaign, had said Bergdahl “should face the death penalty,” prompting the military judge in the case to indicate that the president’s statements could result in a less severe sentence. The judge, Army Col. Jeffery R. Nance, did not say how he arrived at the sentencing decision, as The Washington Post’s Alex Horton reported.
In very different civil cases, which involve the Trump administration’s motivations, Trump’s statements have become part of the record and have contributed to court orders blocking some of his initiatives.
In October 2017, a federal judge in Washington temporarily blocked Trump’s proposed transgender military ban. The government attempted to argue no such ban existed. U.S. District Judge Colleen Kollar-Kotelly countered that there was an obvious ban based in part on the “president’s own statements regarding his intentions with respect to service by transgender individuals.” The statement came from Trump’s tweets on the subject.
In January, the San Francisco judge tasked with hearing the government’s case for ending the Deferred Action for Childhood Arrivals program, U.S. District Judge William Alsup, weighed whether to leave the program in place while the legal battled continued. In his decision, the judge ended up citing Trump’s tweets claiming to support the program, even though the administration terminated it.
“We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended,” Alsup wrote. “For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation.”
And in June, U.S. District Judge Jesse Furman, hearing a lawsuit brought by the state of New York and others against the Commerce Department decision to place a citizenship question on the 2020 Census, again referred to Trump’s past statements. Allowing the case to go forward, Furman’s opinion said the plaintiffs had “plausibly alleged” discriminatory animus on the part of the government, citing, among other things, the president’s comments about “people from shithole countries” and his reference to immigrants as “animals.”
Somewhere, horror novelist Stephen King might be knowingly chuckling. After Trump blasted out his first tweet about the alleged New York attacker, King replied to the president on Twitter.
“You need to shut up about pending legal action, he wrote. “Were you born stupid?”