President Trump speaks during a cabinet meeting at the White House, November 1, 2017. (Reuters photo: Kevin Lamarque)

Bergdahl is to loyalty as Trump is to tact.

The twaddle President Trump tweeted (here and here) in urging the “DEATH PENALTY!” for Sayfullo Saipov, the West Side Highway jihadist, is maddening — and not just on its face. Only days earlier, the commander-in-chief had been chastised for intemperate remarks affecting another case, the court-martial of Sergeant Bowe Bergdahl.


As we recounted in a recent column, Trump’s bull-in-a-china-shop routine rumbled through the sentencing proceedings of the deserter and former Taliban prisoner. Unwilling (or is it unable?) to utter the words “no comment” when asked about the case during a press conference, the president reaffirmed his campaign-trail incitements about the “dirty, rotten traitor” (for whom he’d pantomimed a firing-squad execution).


Trump, or at least someone at the White House, must have known that the defense had already moved to get the case thrown out on the theory that Trump had prejudiced Bergdahl’s fair-trial rights. When he denied this motion, the military judge explained that candidate Trump had not been in command authority when he made his remarks. The clear message to the White House was that this would be a much tougher call if Trump spewed such demagoguery as president. Seemingly taking this as a dare rather than prudent advice, he proceeded to spew it as president. Naturally, the defense renewed the motion. After a few days of hand-wringing, the manifestly irritated judge denied it, on grounds that were far less defensible. Yesterday, undoubtedly concerned that the president’s comments could result in a reversal on appeal if a stiff sentence were imposed, the judge sentenced Bergdahl to no jail time — notwithstanding that desertion can carry a lengthy term of imprisonment, and Bergdahl’s desertion resulted in soldiers’ being severely wounded in the search for him.


Earlier, aware of the problems his off-the-cuff remarks had already caused in the court-martial, the president nevertheless butted into the West Side Highway jihadist’s legal proceedings. He was moved to do so, he said, because the justice system “is a joke and it’s a laughingstock.” Well, it is if the president turns it into one.


So far, besides the unforced Bergdahl gaffe, Trump has issued an unmerited, unnecessary, and impulsive pardon for his political ally, former sheriff Joe Arpaio. And then there is Michael Flynn, another political ally. In a moment of remorse after firing General Flynn, he pressured the FBI to drop its investigation of the former national-security adviser — gratuitously handing his opponents an “obstruction” narrative. While legally meritless, the political heat from cries that Trump was tampering with an investigation led inexorably to the appointment of a special counsel, who has bird-dogged his administration ever since.

Now, hard on the Bergdahl gaffe, we have a tirade about the death penalty to complicate a terrorism case. No, it’s not the end of the world. But the knee-jerk tough-guy act that so thrills the president’s base has consequences that make it increasingly difficult for the administration to do its job.

The Justice Department has an exacting process before the death penalty may be charged. The process is meant to impress on the judiciary — much of which is philosophically predisposed against capital punishment — that the attorney general seeks the death sentence only after extremely careful deliberation, which includes hearing a presentation from the defense. Now, since the attorney general answers to the president, Saipov’s lawyers will argue that the DOJ process is, shall we say, a joke and a laughingstock, the president having already ordered his subordinate to seek the defendant’s execution.

Since the attorney general answers to the president, Saipov’s lawyers will argue that the DOJ process is a joke and a laughingstock, the president having already ordered his subordinate to seek the defendant’s execution.


In the end, I’m pretty sure defense motions to throw out any capital charges will be denied. But the burden on the prosecutors to prevail on the matter of a death sentence will be tougher.

Make no mistake: They already have an uphill battle on their hands.

Saipov richly deserves the death penalty. (Like you, dear readers, I’m not the president, so I get to say that without screwing up the case.) But the problem is, while this jihadist atrocity should result in a straight-up, slam-dunk state multiple-murder prosecution, the State of New York has done away with capital punishment. If he is going to get a death sentence, it will have to be a federal case. Thus, I’m proud to say, the case has been taken over by my former stomping grounds, the United States Attorney’s office for the Southern District of New York. There is still a problem, however: Finding a federal murder charge that fits the facts well is not simple.


The SDNY prosecutors are a clever lot. In a two-count complaint, they theorize (in Count Two) that Saipov caused eight deaths in the course of damaging an automobile in interstate commerce. But the criminal statute invoked (section 33(a) of the U.S. penal code) is really addressed at incidentally endangering human beings while doing violence to a car, not incidentally endangering the car while doing violence to human beings. The latter is what Saipov did — an attack with a truck, not on a truck.

Plainly aware that this allegation may not fly, the prosecutors also charge material support to terrorism (under section 2339B). They plausibly allege (in Count One) that Saipov’s savage attack was done on behalf of the Islamic State terror network (ISIS). Yet defense lawyers will surely counter that Saipov has no known connections to ISIS, and that his attack was not coordinated with ISIS.

The government has a good argument. Even assuming Saipov had no ISIS ties, he fully intended his act to contribute to ISIS’s sharia-supremacist cause. Plus, ISIS has responded by embracing Saipov, albeit after the fact. Still, the ISIS connection will be hotly contested. And, more to the point, neither the material-support charge nor the damaging-an-automobile charge is a death-penalty offense.

Of course, the criminal complaint is only the first step in the case, really just a means of keeping Saipov detained without bail, not the formal indictment on which he will ultimately be tried. When that indictment is filed, I am hopeful it will include charges of murder in aid of racketeering. This offense (section 1959) is a capital crime, prohibiting murder (as well as other violent crimes) committed “for the purpose of gaining entrance to” a racketeering enterprise. ISIS clearly qualifies as such an enterprise under federal law (under section 1961, it is a group of individuals associated in fact — even though not a legal entity — and it engages in acts of murder, among other depravities). Further, even if Saipov was not a member of ISIS before his killing spree, he was patently seeking entry into the network . . . and he succeeded in getting it. ISIS branded him “one of the caliphate soldiers” in its claim of responsibility.


All that said, this is not an easy prosecution — certainly not as easy as the blatant brutality of Saipov’s attack would make it appear. I am quite confident that whichever judge is assigned to the case will deny the inevitable motions to dismiss death counts. When we step back, a foolish outburst, even from the White House, is trivial juxtaposed to Saipov’s barbarity. But understand that the judge will still be incensed over the need to address presidential ranting (particularly if it continues). The prosecutors’ margin for error, already thin in a death case, will narrow all the more. Not being a lawyer, Trump may not grasp how many ways a pissed-off judge — especially one who is philosophically opposed to capital punishment — can undermine a prosecutor’s case without formally tossing it out.

As readers may recall, I do not subscribe to the haughty conceit, popular at Main Justice and the FBI, that law enforcement must be so independent from politics that it becomes, in effect, a separate, unaccountable branch of government. Prosecutorial power is awesome (not like “awesome, dude” — I mean really awesome). It is a great virtue of our system that this power answers to a political official — the chief executive — who answers to the voters.

Yet, just as law-enforcement officials must respect the policy judgments of their political superiors, the political authority must respect the need for independent administration of justice in individual cases. The president undoubtedly has the power to interfere in criminal cases that are brought under his authority. He abuses that power, though, when he fails to affirm the rule of law and the public integrity of the judicial process.

I am not being hysterical. This is not an abuse of power over which President Trump is going to be impeached, and I doubt voters will hold it against him — at least those who are not already disposed against him. But it’s really stupid for a president to comment on pending cases. He should stop doing it. One hopes it will not take a judge dismissing a high-profile indictment for the lesson to take hold. There are well over 300 Obama appointees on the federal bench, many of whom would leap at the chance.

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