A loose coalition of celebrities, attorneys, and petitioners—including Kim Kardashian and one of the lawyers who defended Donald Trump during impeachment—are working to convince the president to stop the execution of a federal prisoner named Brandon Bernard.
They view it as, potentially, one of Trump’s final acts of clemency before Joe Biden takes over in January. But they’re running out of time. As of Tuesday, Bernard had just two days left to live.
At odds are two main forces in Trump’s larger orbit.
On one side is his own Justice Department and Attorney General William Barr, who has made Bernard one of the centerpieces of the administration’s resumption of the federal death penalty after a nearly two-decade pause. The DOJ blasted out a press release in mid-October announcing the scheduled execution, detailing the “especially heinous” crime and Bernard’s involvement in “brutally murder[ing] two youth ministers, Todd and Stacie Bagley, on a military reservation in 1999.”
On the opposite side are associates and acquaintances of the Trump family such as Kardashian, who in late November circulated a petition online asking followers “to let President Trump know that you think Brandon’s death sentence is unjust,” and that “Brandon’s death sentence [be] commuted to life imprisonment.”
Kardashian has successfully lobbied Trump on clemency in the past. And on the Bernard case she has some key allies. On Tuesday, Alan Dershowitz, who served as a member of the Trump defense team during the impeachment trial, told The Daily Beast that he was on a conference call Saturday with Kardashian, and that the two of them discussed Bernard’s situation and their respective attempts to raise it with top White House officials.
“I don’t know the man, I’m not his lawyer, but I’m publicly advocating for a commutation of his sentence,” Dershowitz said of Bernard. “I’ve spoken to Kim Kardashian about him….[and about] trying to get our advocacy to the White House and to the counsel’s office. [During the Saturday call], she asked me for my advice, and I told her to try to reach everybody you can, not just in the White House, and to keep publicly speaking up about it.”
Dershowitz added that, on the call, he encouraged Kardashian’s efforts by quoting the Talmud, regarding “whoever saves one life saves the world entire.” He mentioned that “about a week ago, I called someone I know in the White House counsel’s office, a former student,” to ask the office if it was aware of Bernard’s case. The attorney said he “got a note back” saying that the White House lawyer was looking into it, but beyond that, Dershowitz said he had no knowledge on whether this has caught Trump’s attention, or if there had been any further movement in the West Wing.
The White House declined to comment on this story. The Justice Department did not respond to an email seeking comment.
If put to death this week, Bernard will become the ninth inmate to be executed in the Trump administration’s ongoing push, which started this summer, to revive and carry out federal executions. Bernard was just 18 years old at the time of the murders, and his advocates argue that prosecutors withheld evidence of his low rank in a local, violent gang involved in the brutal slayings of Todd and Stacie Bagley. That evidence, advocates say, could have easily spared him the death penalty. Christopher Vialva, the accomplice who shot the youth ministers in the head while they were held captive in the trunk of their own car, was already executed this year.
According to court documents, Vialva ordered Bernard to try to destroy the evidence by setting the car, with the bodies in it, on fire. During the trial, a medical examiner testified that Stacie Bagley—apparently unbeknownst to Bernard—was still alive after Vialva had shot her in the head.
“When Brandon Bernard lit that fire, Stacie Bagley was still living,” assistant U.S. Attorney Scott Frost said in his closing argument.
On Tuesday, a judge denied a motion for staying the 40-year-old inmate’s execution, and Bernard is currently slated to die by lethal injection at an Indiana federal facility on Thursday.
It is unclear how much Trump knows about Bernard, his case, or the efforts by activists and even his former jurors to argue that he should not be put to death because he has reformed and has tried to counsel young people not to go down the same dark paths he did. Last month, Angela Moore, a former federal prosecutor, authored an op-ed titled, “I helped put Brandon Bernard on federal death row. I now think he should live.”
Trump has expressed a desire for his administration to facilitate federal executions before he leaves office. Two sources who’ve spoken to the president recently about his resumption of federal executions say he is incredibly proud of his administration’s commitment to capital punishment, and wishes to get as many of these done before his time in office is up.
“He gets [visibly] excited when he talks about the ‘justice’ he’s able to bring to victims’ families [with these executions],” said one person close to Trump who’s discussed the issue at length with him.
Trump has what activists widely consider at best to be a mixed record on commutations and pardons, not to mention criminal justice policy. Reform advocates have criticized Trump for heavily weighting favoritism and flattery and personal connections in his pardon and commutation decisions. Trump has also been criticized for not apologizing or acknowledging fault for publicly calling for the execution of the Central Park Five despite the fact that the alleged rapists in the infamous case of the Central Park jogger had their convictions vacated in 2002 after evidence of coerced confessions emerged.
During his presidency, Trump has tried to brand himself as a champion of criminal justice reform, campaigning in his failed bid for re-election on his commutations granted for people like Alice Johnson, whose release Kardashian campaigned for, and his signing of the First Step Act. And yet, he has continued to back “tough on crime” policies and draconian “law-and-order” messaging, and has never backed off executions or “retribution” in the form of state-sanctioned killings.
“If it were up to him, we would return to the old days where it was eye-for-an-eye, tooth-for-a-tooth—or we would forget about proportionality altogether. He would talk about lining up drug dealers and gang members in front of a firing squad,” a former senior Trump administration official said in July. “If it were solely up to him, that is how the country would solve crime in Democrat-run cities [such as Chicago and Detroit].”
President-elect Biden has promised to halt Trump and Barr’s resumption of federal executions once sworn in early next year. But his inauguration will come too late for Bernard unless the scheduled execution is stopped. Some high-profile advocates for Bernard’s commutation are holding out hope that Trump will do just that.
“Even to those who favor the death penalty in general, this is the wrong case to apply it, because of the age of the defendant at the time of the crime, the legal questions raised by the conviction, and the likelihood that he may not be guilty of a capital crime,” Dershowitz said.