Holder May Undermine Rule of Law with Challenge to Zimmerman Verdict

The aftermath of the George Zimmerman trial has brought an expected, but very disturbing, reaction. From all indications, the jury weighed the facts of the case carefully and applied the law (as it was presented to them) to the facts correctly. The prosecution had more than its fair share of opportunities to make its case, and one following the trial could not help but to think that they simply did not come anywhere close to providing proof beyond a reasonable doubt. Indeed, the lead-up to the case was troublesome. The police and the prosecuting attorney’s office did not think they even had probable cause to make an arrest, and Zimmerman was charged only after misleading media coverage, the bringing in of a special prosecutor (who later fired an employee after he testified that she had withheld evidence from the defense in the case), allegations by the lead detective in the case that he was being pressured to make an arrest despite the lack of evidence, and the firing of the police chief because he believed the same. The reaction of certain groups, elements of the public, and the Obama administration since the verdict has shown how the coveted American principle of the rule of law has fallen victim to the imperatives of identity politics.

Almost immediately after the trial, demonstrations and even violence were forthcoming—although nothing on the scale of the 1992 South Central Los Angeles riots after the first trial in the Rodney King case. The demonstrations, organized primarily by civil rights groups and leftist activists, have continued. The New Black Panthers, whose apparent voter intimidation during the 2008 election the Obama Justice Department turned a blind eye to, has put out a bounty for Zimmerman. In the meantime, the Justice Department has said it will “aggressively” pursue an investigation of Zimmerman for federal civil rights violations—even though earlier FBI inquiries had turned up no racial intent on Zimmerman’s part. The NAACP has an online petition going to call for such a prosecution (this “civil rights” organization seems curiously oblivious to the possibility that this might compromise Zimmerman’s Fifth Amendment rights). Various activists, seemingly supported by Attorney General Eric Holder, want “stand your ground” self-defense laws—which say that a person does not have to retreat when trying to protect his life or property from an assailant—to be repealed. They are somehow culprits, even though Florida’s version of this law played no role in the case.

Powerful voices are insisting that despite the evidence and the fact that the criminal justice procedures have run their course—objectively and with no indication of unfairness, unless it be to Zimmerman—he just had to be guilty and should pay. So, one way or the other—even if it means twisting the law to make it happen—“we’ll make sure” that this is the result. One can hardly think of a more dramatic departure from the rule of law. Indeed, one thinks readily of the final scene in Thomas More’s trial in the movie A Man for All Seasons, when in spite of having a case built only on Richard Rich’s obviously perjured testimony against him Cromwell and the prosecution tell the easily intimidated jury that there isn’t even any need for it to deliberate because he’s certainly guilty. What we seem to be witnessing is legal decisions prompted by pressure groups and unknowing, even prejudiced, elements within the public. To be sure, we shouldn’t view the Obamaites or Democrats as unique among opportunistic or cowed public decision-makers when it comes to undertaking criminal prosecutions in such circumstances. Let’s recall that the federal civil rights charges in the Rodney King case—mostly on very questionable grounds—were brought by the George H.W. Bush administration as an obvious response to the riots. Interestingly, there were no federal charges against the rioters—some of whose actions were downright vicious—but only against the police officers already acquitted in state court.

On several points, a federal prosecution of Zimmerman would be a miscarriage of justice—or perhaps one might say an outrage of injustice. First, there is the question (for all practical purposes) of double jeopardy. The federal government was able to get away with the re-prosecution in the Rodney King case because of “dual sovereignty,” which as applied to criminal law means that since the federal government and a state are separate sovereigns or levels of government there can be separate prosecutions for the same alleged criminal act. The substantial role and presence of the federal government in the every-day lives of citizens and the increased intertwining of law enforcement efforts at different levels in practical terms seriously compromise dual sovereignty, however. The Supreme Court is long overdue in revisiting the constitutionality of such “two-layered” prosecutions. Actually, the federal government has routinely followed a policy (in line with the grounds laid out by the Supreme Court) of not commencing a prosecution after a state acquittal except under exceptional circumstances, such as corruption or intimidation, for the very reason that it would take on too much of the character of double jeopardy. The Zimmerman case provides no such exceptional circumstances. In light of that, if the Department of Justice prosecutes it would take on the appearance of a blatant act of political calculation.

Second, as some authorities have pointed out, the available federal statutes that could be used are slim pickings. Section 1983 of the U.S. Code is the usual basis for a civil rights action. That, however, is out of the question here because it requires that an action took place “under color of law.” This applies to public officials or police officers acting in their official capacity. Zimmerman was not in one of these categories; a neighborhood watch volunteer is not an extension of a police department. A Section 1985 action requires a conspiracy, which involves two or more persons. Zimmerman acted alone. The only other seeming possibility would be the so-called federal “hate crimes” provision. This, however, requires two key elements. The first is the showing of a racial motivation in the act, which seems to have gained no credence from the state trial and the FBI’s pre-trial investigation. Second, the act somehow had to have affected interstate commerce. Even though, as I point out in my book The Transformation of the American Democratic Republic, since the New Deal we have witnessed the stretching of the meaning of “interstate commerce” almost beyond recognition, to believe that the Zimmerman-Martin altercation affected interstate commerce would be a breathtakingly mindless distortion of the term.

This doesn’t necessarily mean that there will be no federal charges. After all, as Paul Craig Roberts and Laurence Stratton point out in A Tyranny of Good Intentions, federal prosecutors have become known for a utilitarian ethic where notches on the belt become more important than legal ethics and, due to prosecutorial manipulation, the grand jury has ceased to protect the innocent. Moreover, this is the Justice Department that we now know played a role in orchestrating and funding demonstrations in Sanford, Florida against Zimmerman early in the case. Consider also that this administration has shown no hesitancy about ignoring or circumventing laws it disagrees with or that obstruct its political agenda, as in delaying the employer mandate in the health care law, tossing aside the work requirement in the 1996 welfare reform law, partially putting the DREAM Act into place even though Congress refused to pass it, and on a slew of environmental regulations.

Some are insisting that Zimmerman be prosecuted for “racial profiling,” and the Justice Department seems sympathetic to them. Will this mean that whenever people try to resist or defend themselves against criminal acts being perpetrated against them by a member of another racial group they risk being charged with a crime themselves? As far as concerns the very notion of profiling itself, can people be blamed for being wary of encounters with members of certain demographic groups known for disproportionate rates of criminal activity? To be sure, it wouldn’t be the first attempt to put in place vague legal standards—consider all the innocent parents investigated each year by the so-called “child protective system” for child abuse and neglect pursuant to another federal law, the 1974 Mondale Act—but wouldn’t this open the door to a legal free-for-all and heightened racial and ethnic conflict? Wouldn’t its very subjectivity likely result in selective prosecution against disfavored racial and ethnic groups, as some claimed happened in the Zimmerman case?

We are currently witnessing challenges to religious liberty perhaps not seen in America since colonial times. If what the law is and whether it will be enforced is determined by political whim and pressure groups, why won’t Catholics and other serious Christians—who are certainly disfavored groups in the currently secular culture—be the ones who will be targeted down the road?

The rule of law makes justice, fairness, civility, and civil peace possible. Is it being replaced by a rule of arbitrariness? An acceleration of the ongoing trend of debasing the rule of law could be this administration’s most devastating legacy.

Editor’s note: Pictured above from left to right are Jessie Jackson, Al Sharpton and Attorney General Eric Holder.