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How Trump’s death penalty tweets complicate Sayfullo Saipov’s prosecution

Twenty-nine-year-old Sayfullo Saipov is the suspect held in the terrorist attack that left eight people dead in Lower Manhattan on Oct. 31. Here’s what you shou (Video: Amber Ferguson/The Washington Post)

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President Trump told a reporter Wednesday that he would consider sending New York City attack suspect Sayfullo Saipov to the U.S. military’s detention facility in Guantanamo Bay, Cuba, saying: “I would certainly consider that, yes. Send him to Gitmo. I would certainly consider that.”

A few hours later, White House spokeswoman Sarah Huckabee Sanders seemed to buttress that argument, referring to Saipov as an “enemy combatant,’’ a term used to describe some terrorism suspects and the opposing fighters whom American troops face on the battlefields of Syria, Iraq, Afghanistan and elsewhere the United States is engaged in the war on terrorism.

In messages posted on Twitter late Wednesday and early Thursday, Trump also called for Saipov, who is accused of committing the most lethal terrorist attack in New York City since 2001, to receive the death penalty.

Trump has backed off his initial statements about sending him to Guantanamo, but his off-the-cuff remarks seemed to risk complicating matters for federal prosecutors.

Here is what you need to know:

What charges does Saipov face?

Authorities say Saipov drove a rental truck down a bike path on the west side of Lower Manhattan, killing eight people and injuring 12. When questioned by investigators, Saipov confessed and said he was inspired by the Islamic State to carry out the attack, according to a criminal complaint filed against him.

He is charged with multiple terrorism offenses, including providing material support to the Islamic State and violence and destruction of motor vehicles.

Was Saipov given a Miranda warning? 

Federal agents first questioned Saipov without giving him a Miranda warning that he had the right to remain silent and have an attorney, under what lawyers call a “public safety exception,’’ according to officials familiar with the investigation. Saipov talked about the plot with his interrogators, officials said.

Then, after he was Mirandized, the suspect kept talking, saying he was proud of what he had done and offering further details about how he had planned and prepared for the attack, according to officials familiar with the account.

What about the death penalty charge?

Prosecutors have not indicated whether they will seek the death penalty against Saipov.

In the federal system, deciding whether to seek capital punishment against a defendant is a complex process that takes months, beginning with a recommendation from the U.S. attorney’s office. That recommendation is then reviewed by the attorney general before a final decision is made.

How may Trump’s tweets affect the prosecution of Saipov?

As the president contemplated sending Saipov to Guantanamo, FBI agents and Justice Department prosecutors were preparing charges based in large part on lengthy hospital room confession they said the suspect gave. Hours after Trump’s statements, U.S. Attorney Joon H. Kim stood at a podium in New York and, while making no explicit reference to the president’s comment, mentioned a number of recent terrorism cases successfully prosecuted by his office.

In a number of instances, Justice Department lawyers have tried to distance themselves from Trump’s pronouncements. During arguments over the administration’s various travel bans, for instance, they’ve argued that his comments and those made by his advisers should not be considered because, in the department’s view, the courts should not look beyond official statements and the travel order itself to determine its purpose.

In multiple cases, Trump’s Justice Department has been taking the position that Trump’s utterances are irrelevant to government policy.

Mary McCord, a former senior national security official at the Justice Department, said “tweets and off-the cuff statements make the jobs of career Justice Department people challenging. . . . Obviously, prosecutors don’t like to see people in positions of authority — including the president — commenting on possible penalties.’’

But, she said, prosecutors “during this administration, or previous administrations, are used to blocking out statements, and just doing their jobs.’’

What happened behind the scenes?

Federal prosecutors spent Wednesday drawing up a criminal complaint to be filed in the courthouse that day. In Washington, national security officials at the Justice Department approved the plan to file the complaint that afternoon, but then, for reasons that remain unclear, tried to rescind their approval, according to people familiar with the matter. By that point, prosecutors had already taken the complaint to the courthouse and it was too late to undo it, these people said.

It’s unclear if the internal back-and-forth at the Justice Department had anything to do with comments coming from the White House, but Trump’s public statements intensified concerns among federal law enforcement officials, civil rights advocates, and some lawmakers that the Trump administration might try to short-circuit Saipov’s prosecution and have him transferred into military custody.

A full version of this story is available here.