Outraged that New York bike path terrorist, Sayfullo Saipov, (no, I’m not going to call him a “suspect”) had insolently asked to hang an ISIS flag in his hospital room, President Donald Trump tweeted last week that he should get the death penalty, and fast. This threw the Twitterverse into predictable high dudgeon, causing both liberals and their sometime parrots, among the GOP “NeverTrump” pundits and intellectuals to insist that Trump had endangered the case, or at least the death penalty case, against Saipov by making it vulnerable to dismissal based upon pretrial prejudice.
The indignation was so strong that Tom Nichols even ran “out of ‘can’t evens.’”
Trump’s critics repeated this legal conclusion as if it were the only and obvious one. But in fact, it’s not obvious, at all. Further, and more fundamentally, they acted as if the legal consideration were the only one a president should consider, disregarding that presidents sometimes have a conflicting political and policy responsibility, and, therefore, a moral obligation to give voice to legitimate public outrage.
But let’s look at the legal issues first. There’s actually almost no case law on whether comments by a public official on the guilt or proper punishment of a criminal defendant impact the right to a fair trial, and if so what the remedy in those cases should be. And the very few precedents run contrary to the assumptions of those now condemning the president’s tweet. In the case that seems most analogous, President Richard Nixon once said at a press conference during Charles Manson’s 1970 murder trial that the cult killer was “guilty.” And Manson (with the apparent collusion of his attorneys) dramatically held up to the jury a newspaper with the headline “Manson Guilty, Nixon Declares.” But the court denied his mistrial motion without even issuing a written opinion, and Manson did not contest the ruling on appeal, even while raising a host of other issues concerning allegedly prejudicial publicity.
There was a similar outcome 25 years later when lawyers for Oklahoma City bombers Timothy McVeigh and Terry Nichols moved to bar the death penalty because President Bill Clinton and Attorney General Janet Reno had announced their intention to seek it even before the perpetrators were apprehended. The trial court rejected arguments by McVeigh and Nichols that Clinton and Reno had unfairly prejudiced and short-circuited the federal legal process for determining whether to seek capital punishment, and the 10th Circuit Court of Appeals summarily affirmed these holdings.
Perhaps aware of this sparse case law, one of Trump’s more restrained critics, National Review’s Andrew McCarthy, clarified his initial tweet by explaining that this is only because it makes judges who are already antagonistic to the death penalty even more biased against it.
Mr. President, we all know he should get the death penalty. But when *you* say it, it makes it harder for DOJ to make that happen. https://t.co/m19gHTLg7R
— Andrew C. McCarthy (@AndrewCMcCarthy) November 2, 2017
Much of judiciary philosophically hostile to capital punishment. Errors magnified & judges apt to find incurable prejudicial error. https://t.co/rkw3td6ZE9
— Andrew C. McCarthy (@AndrewCMcCarthy) November 2, 2017
In other words, the problem is not that Trump has evaded the law, but that judges might do so in a fit of ideological pique at him.
In a subsequent article expanding on the claim, McCarthy twice acknowledges that the judge in Saipov’s case “will deny the inevitable motions to dismiss death counts” against him based on Trump’s statements, and also notes that “[w]hen we step back, a foolish outburst, even from the White House, is trivial juxtaposed to Saipov’s barbarity.” But, he says, “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.”
McCarthy points to the recent case of Army deserter Bowe Bergdahl, whom Trump had branded as a traitor and suggested should be executed, as an example of this. And, indeed, the military judge in that case, while formally denying a motion to dismiss based on Trump’s comments, deemed them to be “mitigation evidence” in favor of Bergdahl and then, scandalously, imposed no jail time on him even though as many as six of his comrades had died searching for him.
It’s a valid concern. But I wonder if McCarthy, a former terrorism prosecutor, is looking at this a little too much through the narrow lens of a litigator trying to win a particular case. If judges, either military or civilian, are so ideologically hostile to both Trump and the law allowing execution that they will subvert the latter in order to spite the former, why, exactly, is Trump the one at whom we should direct our anger?
Why tiptoe around these leftist judicial martinets, especially when their bias in favor of the defense is likely to assert itself anyway? Why not take them on and expose them? As McCarthy’s former boss at the United States Attorney’s Office, Rudy Giuliani, understood, sometimes it’s worth “pissing off” the judge in order to call out that bias politically, and stake out a moral position, even at the risk of losing the immediate battle. Left unchallenged, this kind of judicial usurpation is more dangerous in the long run than the misplaced mercy of a biased judge in one case.
Trump understands this on a gut level. He gets that the quibbles of his legal advisers are not the only, or even the most important, concern in reacting to an act of foreign-inspired terrorist murder on U.S. soil. Like Theodore Roosevelt, he understands that the presidency is a bully pulpit, and that the president has a legitimate role—indeed, an obligation—to articulate public outrage after such an atrocity. The need for this articulation from some leadership figure is particularly crucial today when the elite and the average person increasingly occupy totally separate moral and cultural universes; where public anger at Islamic terrorism is met with a raft of condescending lectures about not scapegoating Muslims; and where Americans aren’t even allowed to talk about the Islamist enemy the way Yankee fans talk about the Red Sox.
McCarthy offers a commonsense position (we all know Saipov should fry, but the president shouldn’t say it) that the average “deplorable” once would have accepted—back when the elite would have accepted it too. But the elite doesn’t accept—doesn’t even understand—this kind of plainspoken logic anymore. Most of Trump’s other critics, on both the Left and the Right, probably clutched their pearls just as tightly at McCarthy’s tweet as they did at Trump’s. Unapologetically rooting for the death of bad guys who attack our country is now considered déclassé by the refined. The elite on both sides of the political spectrum no longer speak this language.
Except for one developer from Queens who does. And it’s no small part of why he’s president. element_content=””]