Politics & Policy

Eric Holder’s Cynical Threat

The jury has spoken in Florida, acquitting George Zimmerman of all state murder and manslaughter charges arising out of the shooting death of Trayvon Martin. It was a prosecution that should never have been brought: That was the judgment of the veteran police officers who first investigated it and concluded that Zimmerman had acted in self-defense. But because it was brought, we have seen the severe weaknesses of the case against Zimmerman: the absence of intent to commit murder, and the utter dearth of evidence that Zimmerman is a racist or that racism played any part in the tragic death of Martin, a 17-year-old African American.

The lack of racist indicia was why, in a reprehensible touch, the New York Times felt compelled to invent a new category for Zimmerman — “white Hispanic.” For the Left, racism is America’s unredeemable sin, the driver of the American narrative. And when the narrative collides with contradictory facts, it is the facts that must give way. Contorting the facts beyond recognition was essential to creating the climate that resulted in murder charges.

In that endeavor, the brazenly political Obama Justice Department was a significant contributor. Attorney General Eric Holder traveled to Florida to fan the flames at a joint appearance with infamous race-hustler Al Sharpton. His minions in Justice’s “Community Relations Service,” under the guise of “peacekeeping,” helped promote anti-Zimmerman rallies.

Now all eyes are again on Holder. Over a year ago, with Sharpton by his side, he raised the specter of a federal civil-rights prosecution. This thumb on the scale goes far in explaining why Governor Rick Scott decided, despite the judgment of the police, to appoint a special prosecutor to bring a murder case — under a state procedure that avoided review by a grand jury. Now that a trial jury has finally reviewed and rejected the state case, the question is whether Holder’s department will bring the long-threatened civil-rights case.

To do so would be such a patent triumph of interest-group politics over facts and law that we doubt even Holder would stoop to it. The state prosecution was woefully insufficient, but it would be a slam-dunk compared to a federal civil-rights case. Zimmerman’s claim of self-defense, richly supported by the evidence at the Florida trial, would be no less compelling in federal court. That, however, is not the half of it.

A civil-rights prosecution would require proof beyond a reasonable doubt that Zimmerman used force against Martin because of Martin’s race and because he wanted to prevent Martin from attaining some benefit specified in federal law. There is no evidence that Zimmerman is a racist, much less that racism prompted him to use force against Martin. Moreover, Zimmerman and Martin had their confrontation in an entirely intrastate context, and it cannot be plausibly contended that Zimmerman was trying to prevent Martin from, say, attending school, seeking employment, serving on a jury, applying for a federal program, or even going to a restaurant, hotel, or movie — none of the activities the civil-rights statutes strain to federalize.

Nor is substantive groundlessness the end of the matter. The constitutional protection against double jeopardy — being prosecuted multiple times for the same offense — ordinarily does not apply when successive prosecutions are brought by different sovereigns. Thus, a state acquittal will not prevent the federal government from bringing a case based on the same charge and the same evidence. But there is an exception. The Supreme Court has explained that this “dual sovereignty” doctrine would not abide a successive federal prosecution where a state, in the earlier case, had acted as a cat’s-paw for the feds.

The exception is not meant to prevent cooperation between federal and state law enforcement. It is meant to stop the federal government from violating the core double-jeopardy right by using its own enormous resources to prosecute only after it has pressured a state to bring a case the state would not otherwise have brought. That appears to be precisely what happened in Florida’s prosecution of George Zimmerman.

We doubt that Eric Holder and his boss, President Obama, want the recriminations and humiliation that actually filing charges would portend. Instead, they want to fuel the narrative of ever-simmering American racism. Holder made that clear in a speech on Monday at Howard University’s Delta Sigma Theta sorority, claiming — in a less overtly offensive tone than in his 2009 “nation of cowards” speech — that the shooting of Martin presented an opportunity “to speak honestly about the complicated and emotionally charged issues that this case has raised.”

There is nothing less honest than exploiting the Martin family’s tragedy, injecting racism where it has no place, and leaving Zimmerman to twist in the legal wind under the guise of vindicating “civil rights.” Nonetheless, the administration wants its narrative, so it will need to keep its base’s passions inflamed.

To do that, Holder merely needs to say the Justice Department is continuing its investigation. That could keep the conversation going for months, at least. Cynical? Sure — but this is the Obama administration.

The Editors — The Editors comprise the senior editorial staff of the National Review magazine and website.

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