When Ahmad Khan Rahami was arrested after he allegedly (or not so allegedly) detonated bombs in New Jersey and New York City and engaged in a shootout with police, Donald Trump infamously said it was “sad” that he would “be represented by an outstanding lawyer.”

Afterward, I assumed that any non-fascist wouldn’t need a primer it what was wrong with that sentiment. Apparently though, the U.S. Attorney for New York takes a similar view to that of Mr. Trump.

Mr. Rahami was arrested on September 19th, and was very soon charged with a host of crimes by the State of New Jersey. He has yet to be formally presented to a judge on those charges, though, because he has been hospitalized ever since. Seeing a golden opportunity to extract a gratuitous confession out of a newsworthy defendant, both state and federal law enforcement have been at his bedside repeatedly interrogating him without the presence of an attorney for Mr. Rahami.

David Patton, the head of the federal public defender’s office in New York City, heard about this and grew concerned. This is likely because his office will eventually be representing Mr. Rahami on New York-based federal charges, and it will certainly make life harder for the defense if Mr. Rahami keeps talking. This is also likely because Mr. Patton is a decent human being who cares about fairness, and actually believes that the right to counsel means something, especially for people accused of doing very bad things.

Mr. Patton got involved and asked a United States Magistrate Judge to appoint a federal defender to represent Mr. Rahami, so that maybe these interrogations could stop.  Unfortunately, that request was denied because Mr. Rahami hasn’t yet been charged in New York City, even though the charges are on their way. Until the charges come down though, a lawyer can’t be appointed to his case because it doesn’t really exist. If Mr. Rahami asked for a lawyer that would be different, but according to the prosecution (whose word is obviously unquestionable), he hasn’t made any such request.

But the case is even more complex because Mr. Rahami has been charged by the State of New Jersey. And he has a state public defender in New Jersey already representing him. Surely that lawyer can shut down the interrogations, right?

Apparently, that public defender can’t get in to see him precisely because law enforcement are worried that he might keep them from continuing the interrogations.

So what the hell is going on here, and how can these prosecutors and law enforcement officers defend what they are doing?

Let’s start with some basics. Once you are formally accused of a crime, you have a Sixth Amendment right to a free lawyer. Cops and prosecutors have to honor that right, and are not allowed to even try to talk to you about your case once the Sixth Amendment right gets going.

That right only exists based on those specific charges though. So, if you are formally charged in New Jersey on state charges, you have a Sixth Amendment right that protects you from being spoken to by cops and prosecutors about that charge. They are welcome to ask you about anything else they want to, without letting your lawyer know or even letting your lawyer in the room if he is banging on your hospital room door shouting about your right to silence.

But wait, what about Miranda warnings? Apart from the Sixth Amendment, you also have a Fifth Amendment right not to incriminate yourself. Back when the Supreme Court actually cared about such things, the Court decided in Miranda that being arrested and interrogated was so inherently coercive that the only way to protect you from self-incrimination was to require the police to tell you first that you could get a lawyer. Miranda applies any time you are in custody, no matter why you are in custody.

For Mr. Rahami, it looks like he currently only has a Sixth Amendment right on the New Jersey state charge because the New York charges haven’t formally begun yet. This means as long as cops and prosecutors only interrogate him about what happened in New York, there is no constitutional violation.

Mr. Rahami most definitely gets the protection of Miranda across the board because he is in custody and being subjected to interrogations. But, Miranda is essentially meaningless and really never works anyway. I can count on one hand the number of clients I’ve represented who asked for a lawyer when given Miranda warnings. Almost everybody talks to the cops and it is always a bad idea. I have no doubt Mr. Rahami has been given the warnings, but as long as he doesn’t specifically say he wants a lawyer, the questioning can continue.

So yeah, there’s probably no constitutional violation here. But that doesn’t make it right.

Even if technically in compliance with constitutional limits, it is disturbing to see a man, under arrest, being interrogated in his hospital bed, over and over again, while his lawyer is specifically forbidden from entering the room. This doesn’t exactly seem on the up and up.

Keep in mind also that this is what is going on publicly. The various agencies have acknowledged going right up to the line of what is lawful when they know we are watching. But, forgive my cynicism, should we expect them to continue just barely playing by the rules when no one is looking, or maybe should we be concerned that they might step over the line? For example, I have to assume that no one is questioning Mr. Rahami about his New Jersey conduct because I have no evidence to the contrary. But is that a safe assumption in these circumstances?

The other problem is that this is all so unnecessary. There don’t really seem to be big proof issues here, and I anticipate that Mr. Rahami will eventually serve multiple life-without-parole sentences. The biggest fight will probably be over which jurisdiction gets to make him serve his sentence first. For my money, the worst kind of prosecutorial overreach is when the government doesn’t need to cheat (or, like here, almost cheat), but does it anyway.

On the bright side, if Mr. Trump takes office, the various U.S. Attorney’s Offices won’t have to sneak around and play games just to make sure they are barely in compliance with constitutional limits. I imagine he would expect transparent violations of constitutional rights.

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