Earlier this month, lawyers for Sayfullo Saipov — an Uzbek man and legal permanent U.S. resident who drove a truck into a bike pack on October 31, 2017, killing eight people — filed a motion to set aside the possibility of the death penalty in the case. Baring that, the motion asked that Judge Vernon S. Brokerick appoint a special prosecutor to make the determination of whether the government will pursue the death penalty.
At present, the decision of whether to pursue the death penalty in Saipov’s case rests with U.S. Attorney General Jeff Sessions and the Department of Justice.
The lawyers cited a recent tweet from U.S. President Donald Trump which “insisted that Attorney General Sessions’ charging decisions should be governed by nakedly political considerations” in tandem with prior tweets emphatically stating that Saipov should be executed.
On November 1, the day after the attack, Trump tweeted, “NYC terrorist was happy as he asked to hang ISIS flag in his hospital room. He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!” The next day Trump tweeted, “…There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!”
One of the top replies to Trump’s November 1 tweet regarding Saipov was from the famous author Stephen King: “You need to shut up about pending legal action—were you born stupid?”
Saipov’s lawyers argue in the motion that “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 obligations to exercise independent discretion in determining whether a capital prosecution is warranted.”
While Saipov’s lawyers had stated in January 2018 that he would plead guilty if the government agreed not to pursue the death penalty, in June Saipov continued to plead “not guilty.” At that hearing, Saipov said through an interpreter “The judgments that are made here are not important for me…They are not Allah’s judgments.” Although the judge interrupted Saipov to remind him that what he said in court could be used against him, Saipov continued on to say, “The Islamic State, in order to impose sharia on Earth, is leading a war.”
Saipov’s trial has been set for October 7, 2019. Reuters reported in June that the Justice Department was expected to make a decision on pursuing the death penalty “by September.”
As the New York Times noted, this is not the first time that defense lawyers have tried to bring Trump’s tweets into court. In August, as the NYPost reported, “a lawyer for a narcotics peddler argued to a Manhattan federal judge that he should be allowed to suggest that jurors ignore testimony from a government cooperator in the case — because even the president of the United States thinks flipping is bad.” Ultimately, the judge declined, not allowing the lawyer to make that pitch to the jurors.
What makes Saipov’s case different is that some of the tweets being referenced by the defense lawyers refer directly to their client.
So far Sessions and the Justice Department have not made a decision with regard to the case.
Meanwhile, Trump has increasingly verbally attacked his own appointee. In an interview with Hill TV this week, Trump said in reference to Sessions, “I don’t have an attorney general. It’s very sad.” Trump’s recent public criticisms of Sessions largely reference the Russia investigation, immigration issues and the recent federal indictments of two current Republican congressmen. While Trump, as the Hill put it, demurred when asked if he was gearing up to fire Sessions, he did say “We’ll see how it goes with Jeff. I’m very disappointed in Jeff. Very disappointed.”
Trump’s angry tweets may spare Saipov the death penalty, an ironic outcome. This bizarre tale serves as in part as an illustration of just how odd politics and policy have become, but also underscores the changing nature of policymaking in the modern era.