In Donald Trump’s first presidential term, Sayfullo Saipov tried to stop the federal government from seeking the death penalty against him after Trump publicly pressed for his execution. Saipov’s legal effort failed (though the jury ultimately declined to sentence him to death).
On Friday, Trump made his latest call for an execution when he told Fox News that officials had a person in custody in connection with the killing of Trump ally Charlie Kirk. That person was later identified as Tyler Robinson. Utah state authorities have indicated they intend to seek the death penalty against him, though they haven’t filed formal charges yet (after which he can formally contest them; all criminal defendants are presumed innocent).
In addition to whatever comes in state court, if the Trump administration separately seeks federal death penalty charges against Robinson, and if he moves to preclude them like Saipov did based on Trump’s comments, such an effort is also likely to fail.
Yet, the political circumstances that gave rise to Saipov’s failed motion show a difference in Trump’s second term. This time around, the president’s direct control over the Justice Department is taken as a given.
When Saipov made the motion in September 2018, Jeff Sessions was the attorney general, though he wouldn’t last the rest of the year in light of his refusal to always do everything that Trump wanted him to do. Saipov argued in his motion that “the pressure from Mr. Trump’s intemperate demands are simply too great for Attorney General Sessions or anyone else who works for President Trump to appropriately exercise the fact-based, independent decision-making process required” to decide whether to pursue capital punishment.
A federal judge rejected Saipov’s motion, reasoning that even if Trump’s statements were “perhaps ill-advised given the pendency of this case,” the defendant’s argument was “pure speculation made without a scintilla of direct factual support, and without more, it is insufficient to warrant interference by this Court with the Attorney General’s presumptive authority to make charging decisions.”
Fast-forward to today and Attorney General Pam Bondi. To ask whether she operates independently of Trump would offend the basic structure of the Trump-Bondi DOJ, which appears unconcerned with any pretense of the post-Watergate norm of departmental independence but rather with carrying out the president’s wishes via the law. That difference in DOJ leadership, such as it is, wouldn’t likely lead to a judge granting such a hypothetical defense motion, but Trump’s latest call for an execution underscores how much has changed in a few years.
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