Via Larry O’Connor and Breitbart, skip to 6:20 for Rep. Andy Harris’s take on the trial. I think he’s blowing smoke about congressional action. For one thing, he doesn’t bring up the Zimmerman verdict; Larry and his co-host do, and Harris seems to end up scrambling to fit it into the GOP’s broader “Holder/DOJ gone rogue” point. I’m not sure what “reining in” the DOJ in response to their decision to charge would look like either. Holder’s (probably) not barred by double jeopardy, since federal charges are distinct from state ones. A hate-crimes indictment would be flimsy and transparently political, but normally we trust the public to punish the prosecutor and/or his boss for overreaching like that. To the extent that Harris is serious, presumably what he means is new hearings on the DOJ abusing its power of investigation to harass political enemies; see Andy McCarthy’s piece at the Corner yesterday about that, linking Holder’s vague threats of prosecuting Zimmerman to his treatment of James Rosen. I can imagine Boehner’s reaction, though, to being asked to stake GOP political capital on a showdown with the DOJ over George Zimmerman at a moment when the party’s desperate to “rebrand” with minority voters. The media outrage over Republican political meddling with prosecutorial independence would also be fragrant, even though the meddling would be aimed at blocking the prosecutor’s own illicit political agenda. Can’t believe the House leadership would let themselves come anywhere near this, especially since Zimmerman’s likely to be acquitted even if Holder does bring charges.
There’s a silver lining to the DOJ bringing federal charges if you’re a con-law junkie, though. It’ll generate some juicy debates over whether the new federal hate-crimes statute is constitutional and whether double jeopardy really does allow the feds to bring charges after a defendant’s been acquitted of a state charge. Here’s Politico on the former point:
When Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in the East Room in October 2009, it was the first-ever inclusion of crimes based on sexual orientation — an issue so controversial it lingered in Congress for more than a decade — that grabbed the headlines.
But that addition wasn’t the only notable change to the law. The other was the removal of a longstanding requirement that such crimes have some connection to interstate commerce, or to “federally protected activities” such as voting or applying for federal benefits.
The decision to allow prosecutions without what lawyers call a “federal nexus” was an “extremely important” development, said a former Justice Department Civil Rights Division official Samuel Bagenstos.
“The problem federal prosecutors had pursuing hate crimes in the past was that the victim had to be involved in a federally protected activity,” said Bagenstos, now a law professor at the University of Michigan. “….We ended up arguing sometimes that walking on a public street was a federally protected activity.”
If there’s no federal nexus, how can there be a federal statute? Isn’t section two of the Thirteenth Amendment a sufficient nexus? That question might be coming for John “The mandate is a tax” Roberts and his conservative majority. As for double jeopardy, Orin Kerr quoted this passage from a recent Supreme Court petition last month at the Volokh Conspiracy:
Under the original meaning of the Double Jeopardy Clause, a prosecution by one sovereign barred subsequent prosecutions by all sovereigns. But the Court strayed from this original meaning when it adopted the doctrine of “dual sovereignty,” which permits prosecutions by multiple sovereigns. Criminal defendants thus now have less Double Jeopardy protection than they had at the Founding. This petition presents unequivocal historical evidence that dual sovereignty is inconsistent with the original meaning of the Double Jeopardy Clause.
The question presented is whether the Double Jeopardy Clause bars a state prosecution for a criminal offense when the defendant has previously been convicted of the same offense in federal court.
One big difference with Zimmerman’s situation, obviously, is that Holder wouldn’t be trying him for the same offense at the federal level that he was acquitted on at the state level. One was a murder/manslaughter case, the other would be a hate crime/civil rights case. Since the Florida jury found that Zimmerman acted with no animus toward Trayvon Martin, though, in acquitting him of second-degree murder, should that foreclose a federal hate-crimes prosecution? (How about the fact that Holder’s own police force found no evidence of racial bias?) At the very least, a court ruling requiring the DOJ to declare its intent to prosecute or not prosecute before the state proceedings begin would solve the problem of the feds holding the prospect of new charges over a defendant’s head as punishment if he happens to win at the state level. If Holder wanted to prosecute Zimmerman, he should have said so before the Florida trial got rolling. He had more than a year to investigate and come to a decision. Dragging this out now to torture the guy because he’s unhappy with the state verdict is, as McCarthy says, abusive.
Update: Speaking of congressional meddling in prosecutorial independence:
Illinois Democratic Rep. Luis Gutierrez is calling for Judiciary Committee hearings on the shooting death of Florida teen Trayvon Martin.
In a letter to House Judiciary Committee Chairman Bob Goodlatte, Gutierrez wrote that the committee must hold hearings on the matter “as soon as possible.”
“When any child is gunned down and no one goes to jail, it is incumbent on lawmakers at the highest level of government to investigate whether justice has been done, whether the underlying law is just, and whether federal legislation could help avoid another tragic death like the death of Trayvon Martin,” Gutierrez wrote.
Second look at bills of attainder?