I have a new column up on the homepage about the murderous assault during this weekend’s horror show in Charlottesville. The thrust is to argue that the vehicular attack by James Alex Field, which killed Heather Heyer and wounded at least 19 others, was obviously a terrorist attack; but it is a domestic terrorist attack, which is the purview of the state law-enforcement authorities, not the feds, under U.S. law.
The prudent thing would be for the Justice Department and FBI to provide as much assistance as necessary to Virginia prosecutors and police, but defer to them – i.e., don’t elbow them out of the way so the federal government can prosecute. The Commonwealth’s criminal laws – which include capital punishment for intentional homicide and domestic terrorism, as well as severe penalties for violent assault – are a better fit for prosecution than federal penal statutes. As the column explains, for example, there is no federal crime of domestic terrorism – the U.S. penal code has a definition of domestic terrorism, but for sound policy reasons it reserves prosecution for international terrorism crimes.
In the column, I surmise that the sound legal strategy of letting Virginia proceed is apt to be overtaken by political concerns. Specifically, the Left’s narrative that the Trump administration is sympathetic to white supremacists may make the administration so eager to show this is false that it attempts to federalize the prosecution … even if that would not be good for the prosecution.
My fear is reinforced by President Trump’s statement at the White House early this afternoon.
As he should have, Trump pointedly condemned the racism of white supremacists, the KKK, neo-Nazis, and similar “hate groups.” Regardless of the fact that he was pressured into this strong statement by criticism of his weak statement on Saturday, it was important for him make it all the same – as our editorial explains. Nevertheless, to further underscore his anti-racism (or, if you will, to further refute the criticism), the president asserted:
I just met with FBI Director Christopher Wray and Attorney General Jeff Sessions. The Department of Justice has opened a civil rights investigation into the deadly car attack that killed one innocent American and wounded 20 others. To anyone who acted criminally in this weekend’s racist violence, you will be held fully accountable. Justice will be delivered.
By all means, let the Justice Department investigate the car attack. But “justice will be delivered” best if it is delivered in Virginia – at least in the first instance.
Here, I will make the same point I made when the Obama administration would threaten to bring civil rights prosecutions in politically fraught cases: There is no reason for the federal government to be in a hurry. There is a five-year statute of limitations on most federal crimes; and under the “dual sovereignty” doctrine, an earlier state prosecution in Virginia would not bar on double-jeopardy grounds a subsequent federal prosecution of the same or similar crimes.
The Charlottesville atrocity appears to be a much stronger case for a civil rights prosecution than the incidents as to which the Obama Justice Department saber-rattled but ultimately declined to intervene (e.g., the killings of Trayvon Martin and Michael Brown). But a civil rights case is still tougher to prove than a state murder case. Let Virginia prosecute Field. It is highly likely that he will be convicted of capital crimes. Once the state case is disposed of, the feds can then proceed – going forward with a civil rights prosecution or determining that doing so would be unnecessary under the circumstances.
Forget about the political noise. The imperative here is that Field be prosecuted efficiently, in the system that offers the best chance of conviction and the most severe sentence for his heinous crimes. That system is Virginia’s. Helping Virginia accomplish that mission would be the best way the Justice Department and FBI could make certain that justice is delivered.