President Donald Trump's incendiary remarks about military justice stirred a dramatic exchange in a hearing Thursday for the accused conspirators of the 9/11 attacks, with defense lawyers arguing that the commander-in-chief exerted unlawful influence.
At issue are Trump's remarks on Twitter and in person about the decision to give no prison time to Army deserter Bowe Bergdahl and to urge the death penalty on a man who had not yet been charged for driving a van through a New York City bike path, killing eight people.
An attorney for alleged 9/11 plotter Khalid Sheik Mohammed urged the judge, Army Col. James Pohl, to remove the death penalty from consideration, if not dismiss the case altogether.
Prosecutor Bob Swann countered that that some people don't really pay attention to Trump's commentary and that the jury of U.S. military officers will decide the case based on other issues.
But defense attorney David Nevin said the military jury will understand that, in the instance of the New York City attack, "The commander-in-chief is telling them the result that he wants here, that is a death penalty."
The judge himself — the longest serving military judge in the Army — appeared to take particular offense over Trump's criticism of the sentence rendered by another military judge in the Bergdahl case. "The President of the United States, the commander-in-chief, feels necessary to criticize a colonel of the United States Army for a decision that we all know he's empowered to make," Pohl said.
One episode that defense lawyers cast as unlawful influence involved the president saying after 29-year-old Sayfullo Saipov rammed his vehicle Oct. 31 into the lower Manhattan bike path that he had changed his mind about sending the Uzbek immigrant to Guantánamo and favored a federal trial instead because he'd get swifter justice in civilian court. Trump also tweeted that the Uzbek should get the death penalty.
Swann dismissed Trump's remarks as a throwaway line in the White House Rose Garden.
The judge asked the prosecutor whether he thought it was appropriate to say that "a guy who is presumed innocent should get the death penalty?"
Swann replied: "No sir," predicting there would be more such public remarks before jury selection in the 9/11 case. The case is still in pretrial proceedings and no trial date has been set.
Pohl: "Do we have to accept it?"
Swann: "How do we stop it?"
Pohl: "Oh, I have ways to stop it. Remedies to simply say..." and then cut himself off from describing his options, which could include making it non-capital or dismissing the case. "With all due respect to the commander-in-chief, if he wants to interject himself into this process by making these kind of comments, it is my job to make sure this process is still fair."
Mohammed and four accused accomplices are charged in a joint conspiracy trial for allegedly helping to organize, train and finance the 19 hijackers who drove planes into the World Trade Center, Pentagon and a Pennsylvania field, killing 2,976 people.
The defense team's Feb. 22 written motion on Trump's commentary as well as the prosecution's subsequent responses to them were still undergoing a U.S. intelligence review to see if any information must be scrubbed from public view.
Nevin also made reference in court to Trump's public complaints that war court proceedings were too slow, which was his reason for not declaring the man accused of the Manhattan bike path attack an enemy combatant and sending him to Guantánamo for possible trial by military justice.
Swann told the judge that the issue could be remedied at the jury-selection stage for this, "the single largest murder case in the history of the United States." Besides, he said, people already know a great deal about the Sept. 11 attacks — that people threw themselves to their deaths from the burning World Trade Center, that firefighters and police died that dark day.
Jury "members will decide the death issue based on a host of other things. Not just a few comments made by the president," Swann said.
The judge reminded the prosecutor to "focus on legal issues. Facts are facts. The president of the United States made the decision to interject himself. He chose to make those comments or those tweets."