Former federal prosecutors worry Trump is 'tainting the jury pool' by demanding death penalty for New York City terrorist in 'prejudicial' tweets

  • President Donald Trump called for prosecutors on Wednesday to seek the death penalty for Sayfullo Saipov 
  • He repeated that demand on Thursday morning while explaining why it would be impractical to send him to the Guantanamo Bay military prison
  • Former federal prosecutors have weighed in, saying the president's tweets will make it harder for Saipov to get a fair trial and will hand defense lawyers a gift
  • Rep. Steve Scalise, famous for surviving a shooting attack this summer, says 'whatever the harshest penalty that they can put forward is the right thing to do'
  • Saipov, 29, was charged Wednesday with providing material support to a terrorist group and committing violence and destruction of motor vehicles
  • Saipov killed eight and injured 12 by mowing them down with a rented pick-up truck on the Hudson River bike path in lower Manhattan Tuesday afternoon 
  • According to a criminal complaint, Saipov admitted that he was inspired by ISIS 

Former prosecutors and other notable attorneys expressed alarm on Wednesday and Thursday that President Donald Trump's insistence on the death penalty for accused terrorist Sayfullo Saipov could make it harder for the Department of Justice to convict him.

'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,' former New York federal prosecutor Andrew C. McCarthy wrote on Twitter.

Saipov mowed down more than a dozen innocent people Tuesday on a New York City bike path, killing eight of them. But announcing a verdict and sentence ahead of time could be a legally problematic complication.

'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!; Trump tweeted Wednesday night.

'Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system,' he added Thursday. 'There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!' 

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President Donald Trump has said he favors the death penalty for accused terrorist Sayfullo Saipov, leading some legal experts to worry that he may be hamstringing prosecutors

President Donald Trump has said he favors the death penalty for accused terrorist Sayfullo Saipov, leading some legal experts to worry that he may be hamstringing prosecutors

Trump made his first mention of the death penalty for Saipov on Wednesday night as many Americans were watching the World Series wrap up

Trump made his first mention of the death penalty for Saipov on Wednesday night as many Americans were watching the World Series wrap up

Former federal prosecutor Andrew McCarthy, who successfully prosecuted terror sheik Omar Abdel-Rahman, chastised the president for making the Justice Department's job harder

Former federal prosecutor Andrew McCarthy, who successfully prosecuted terror sheik Omar Abdel-Rahman, chastised the president for making the Justice Department's job harder

'The jury pool is tainted,' warned former federal prosecutor Renato Mariotti, hinting that defense lawyers would have a field day with Trump's tweets

'The jury pool is tainted,' warned former federal prosecutor Renato Mariotti, hinting that defense lawyers would have a field day with Trump's tweets

Renato Mariotti, a former federal securities fraud prosecutor who is running for attorney general in Illinois as a Democrat, tweeted that 'Trump helped the terrorist' by prejudging his case.

'Now prosecutors will have to spend time dealing with motions that the jury pool is tainted.'

Washington attorney Mark Zaid, who specializes in national security law, tweeted: 'This is called potentially tainting jury pool & could impact alleged perpetrator's ability to secure fair trial. SMH #Unpresidential'

Presidents and governors seldom weigh in on pending criminal cases out of fear that it could prejudice and undermine an otherwise fair trial.

National Security Advisor Gen. H.R. McMaster said Thursday that 'what the president wants is secure the American people from this threat, and from ... mass-murderers like this'

National Security Advisor Gen. H.R. McMaster said Thursday that 'what the president wants is secure the American people from this threat, and from ... mass-murderers like this'

'Shake My Head': National security lawyer Mark Zaid called Trump's tweet 'unpresidential'

'Shake My Head': National security lawyer Mark Zaid called Trump's tweet 'unpresidential'

The president in particular is in charge of the Justice Department, which is in control of Saipov's prosecution.

National Security Advisor Gen. H.R. McMaster dodged a question during Thursday's White House press briefing, saying only that 'what the president wants is secure the American people from this threat, and from ... mass-murderers like this.'

'And so what he's asked for is options to take a look – to assess if our tremendous law enforcement teams and our judicial system has all the tools they need to be able to combat this threat to the American people.'

Other experts who weighed in included Wall Street Journal correspondent Jess Bravin, who covers the U.S. Supreme Court.

'Defense counsel [is] likely to cite such comments as prejudicial to fair trial or sentencing,' he wrote of Trump's tweets. 

Trump said Thursday morning for the second time that he wants suspected terrorist Sayfullo Saipov to face the death penalty

Trump said Thursday morning for the second time that he wants suspected terrorist Sayfullo Saipov to face the death penalty

Trump on Thursday also walked back his suggestion from a day earlier that Saipov might be sent to rot in the Guantanamo Bay prison camp

Trump on Thursday also walked back his suggestion from a day earlier that Saipov might be sent to rot in the Guantanamo Bay prison camp

The Muslim immigrant from Uzbekistan (above in court sketches) accused of carrying on Tuesday's terror attack in Manhattan entered court Wednesday evening in a wheelchair, handcuffed and with his feet shackled, to face terrorism charges filed against him by the US Attorney for the Southern District of New York

The Muslim immigrant from Uzbekistan (above in court sketches) accused of carrying on Tuesday's terror attack in Manhattan entered court Wednesday evening in a wheelchair, handcuffed and with his feet shackled, to face terrorism charges filed against him by the US Attorney for the Southern District of New York

But on 'Fox & Friends,' Trump's go-to morning TV choice, opinions were clear and monolithic on Thursday.

'When I hear people about, "Where are we going to send him? Should we send him to Gitmo?" I say we skip Gitmo and send him straight to hell where he belongs,' former U.S. Navy SEAL Jocko Willink said on the show.

And Louisiana Republican Rep. Steve Scalise, famous for surviving a gunman's attack this summer, said Trump was 'right' to suggest Guantanamo Bay. 

Scalise said the Justice Department should 'throw the book at him.'

'Whatever the harshest penalty that they can put forward is the right thing to do,' he said, adding that Saipov 'should absolutely be ... eligible and get the death penalty.'

Rep. Steve Scalise, famous for surviving a shooting attack this summer, said on the Fox & Friends program that 'whatever the harshest penalty that they can put forward is the right thing to do'

Rep. Steve Scalise, famous for surviving a shooting attack this summer, said on the Fox & Friends program that 'whatever the harshest penalty that they can put forward is the right thing to do'

Former U.S. Navy SEAL Jocko Willink gave Trump some red meat to tweet about, saying of Saipov that the U.S. should 'skip Gitmo and send him straight to hell where he belongs'

Former U.S. Navy SEAL Jocko Willink gave Trump some red meat to tweet about, saying of Saipov that the U.S. should 'skip Gitmo and send him straight to hell where he belongs'

Trump had already seized on the deadly New York City truck attack to step up demands for stricter U.S. immigration laws, asking Congress to end a visa program that let the Uzbek suspect into the country.

Former president Barack Obama had tried but failed to shut down the Guantanamo Bay prison in Cuba. No detainee has been sent there since 2008.

White House press secretary Sarah Sanders told reporters on Wednesday that Trump considers Saipov an 'enemy combatant,' a designation that would make the alleged New York killer ineligible for legal rights afforded to criminal suspects in U.S. courts. 

Among those rights, familiar to watchers of TV cop dramas, are the right to remain silent and the right to have an attorney present during questioning.

'I believe we would consider this person to be an enemy combatant, yes,' White House press secretary Sarah Sanders told reporters during Wednesday's briefing, while cautioning that she wasn't sure how the federal government would 'process' him.

People gathered for a candlelight vigil for victims of the attack at Foley Square in New York City on Wednesday

People gathered for a candlelight vigil for victims of the attack at Foley Square in New York City on Wednesday

The suspect, Saipov, was allegedly an adherent of ISIS and was said to be radicalized domestically

The suspect, Saipov, was allegedly an adherent of ISIS and was said to be radicalized domestically

Asked why the 'enemy combatant' label is appropriate, she replied: 'I think the actions that he took certainly justify that.'

Trump had called the suspect 'this animal' and lambasted the U.S. justice system that he leads as 'a joke' and 'a laughing stock.'

Since taking office in January, Trump has sought to increase deportations of illegal immigrants and limit legal immigration.

The Muslim immigrant from Uzbekistan accused of carrying out Tuesday's terror attack in Manhattan entered court Wednesday evening in a wheelchair, handcuffed and with his feet shackled, to face terrorism charges filed against him by the U.S. Attorney for the Southern District of New York.

Saipov wore a gray shirt and was surrounded by five guards while in his wheelchair inside a New York federal courthouse after he was charged with providing material support to a terrorist group and committing violence and destruction of motor vehicles.  

Saipov drove nearly a mile down the Hudson River bike path before his rampage came to an end when he smashed into a school bus 

The above graphic shows how Saipov drove off the West Side Highway and onto the Hudson River bike path on Tuesday 

The above graphic shows how Saipov drove off the West Side Highway and onto the Hudson River bike path on Tuesday 

His lawyers said Wednesday they were not seeking bail and a judge ordered him to be held. Saipov did not enter a plea to terrorism charges and a judge set his next court date for November 15. 

Authorities say the Uzbek national watched ISIS videos on his cellphone and picked Halloween for the attack on a bike lane in lower Manhattan because he believed more people would be out on the streets.

He also had plans to drive over the Brooklyn Bridge and kill pedestrians on the walking path over the NYC landmark.  

Prosecutors said in court papers that Saipov asked to display the ISIS flag in his hospital room where he was recovering from being shot by police.

Saipov 'stated that he felt good about what he had done,' according to court papers.

He left behind knives and a note, handwritten in Arabic, that included Islamic religious references and said 'it will endure' – a phrase that commonly refers to ISIS, FBI agent Amber Tyree said in court papers.

WHO CAN TRUMP PUT IN GITMO?

The Trump administration is constrained by the terms of the most recent congressional Authorization for Use of Military Force (AUMF), which dates back to the George W. Bush administration. 

Dated three days after the 9/11 attacks in 2001, the AUMF authorizes the President of the United States to use force against anyone who 'planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.'

Previous administrations have used this congressional go-ahead to justify military action against the Taliban, al-Qaeda, and the ISIS terror army – and they've been on solid legal ground.

What has never been tested, however, is the idea of taking a terror suspect who was captured in the United States and taking military action against him. Sending a prisoner to Guantanamo Bay – a U.S. Navy facility – would be one example.

There are Supreme Court cases that support putting 'enemy combatants' into the hands of military tribunals, and trying them outside the normal criminal court system. But those typically refer to people engaged in an armed conflict on behalf of a country, not a loosely confederated terror movement.

The reason putting terror suspects in 'Gitmo' proved attractive for the Bush administration was that the prison camp is not in the United States. Terrorists captured in the Middle East, for instance, could be held indefinitely without even letting them set foot on U.S. soil.

The case of Sayfullo Saipov, however, is different: He was arrested in New York City and likely is already entitled to some rights under the U.S. Constitution, plus rights afforded under the Geneva Convention.

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