Holder Meets Sharpton

By Andrew C. McCarthy
Saturday, April 14, 2012

Eric Holder rode in on the stench of Marc Rich and will ride out on the stench of Al Sharpton. He’s spent the three-plus years in between branding Americans as “cowards” on race matters; investigating the CIA; coddling CAIR and the New Black Panthers; green-lighting voter fraud; swaddling Khalid Sheikh Mohammed in the Bill of Rights; and converting the Justice Department into a full-employment program for the Lawyer Left and its Gitmo boutique. But now he’s hit the big time.

This week, our esteemed attorney general canoodled with Reverend Al at the annual convention of the “National Action Network,” home base for the infamous huckster (that would be Sharpton, not Holder — sorry for any confusion). It is difficult to imagine another attorney general in American history sucking up to such a race-mongering charlatan. The Sharpton record was succinctly catalogued on the Corner by Victor Davis Hanson: inciting murderous riots; slandering Jews, Mormons, and homosexuals; libeling a state prosecutor in the course of championing Tawana Brawley’s fabrication of a racial “hate crime.” Yet there was Holder, ladling cringe-making praise on Sharpton for “your partnership, your friendship, and your tireless efforts to speak out for the voiceless, to stand up for the powerless, and to shine a light on the problems we must solve and the promises we must fulfill.”

Holder is currently in “partnership” with his fast friend on the highly charged Trayvon Martin case. In the days before the nation’s chief federal law-enforcement official lionized the CEO of the nation’s racial-grievance industry, Sharpton had been in Florida, threatening that his “action network” — as in “direct action,” the community-organizer’s stock-in-trade — would “move to the next level” if authorities in Sanford, Fla., failed to arrest George Zimmerman, the man (or, if you prefer the New York Times Agitator’s Glossary, the “white Hispanic”) who shot Mr. Martin, a black 17-year-old.

With such notches on his belt as Crown Heights and Freddie’s Fashion Mart, there’s not a lot of mystery involved when the Reverend Al starts conjuring “the next level” of “action.” Still, never what you’d call a master of subtlety, Sharpton — between inciting mobs with demands to “arrest Zimmerman now!” — expressly threatened to “occupy” the city of Sanford.

The nation’s chief federal law enforcer reacted to these threats of lawlessness with paeans to Sharpton’s besotted history. Beyond that, Holder has been doing plenty of agitating on his own. He bragged to Sharpton’s crowd that he’d ordered his Justice Department to open an investigation into the Martin shooting three weeks ago. He stood ready, he vowed, to file “civil rights” charges if warranted by “the facts and the law.”

Just one problem: Nothing about the known facts comes close to triggering federal jurisdiction. Holder’s “civil rights” hooey is based on fiction: a tale manufactured by NBC News, the flimflam artists who doctored the audiotape of Zimmerman’s call to the police, stoking public outrage with a report that Zimmerman had racially profiled Martin.

The case at hand involves the excruciating loss of a 17-year-old’s life. We do not know exactly what happened. We do know, however, that there is virtually no chance Martin’s race was the cause of his killing. Quite apart from Zimmerman’s lineage — which the Times would be reporting as “Hispanic,” not the newfangled “white Hispanic,” if he had been on the receiving end of fired shots — Zimmerman is of a mixed-race family. Not only does he have black relatives, he has reportedly donated his time to tutor black children. He seems to have used tragically poor judgment in the chain of events that led to Martin’s death, but there is no indication that he is a racist or that his overeager actions were motivated by racial bias. In the context of the case, Martin’s race is sheer happenstance. Its principal relevance is the divisive opening it presents for opportunistic racialists such as Sharpton and Holder.

Race is a dubious constitutional basis for federal intrusion into state law enforcement. The framers saw policing as a state matter– that’s why there was no U.S. Justice Department for the first 83 years of constitutional governance. One needn’t be blind to slavery and structural racism to understand that 21st-century Florida has moved beyond these blights on the nation’s history. There is zero reason to believe that, without Eric Holder hovering, Florida’s police, prosecutors, and citizens could not be trusted to do justice.

There is, moreover, grave reason to believe Holder’s looming involvement will taint the case. In fact, it is already tainting the case.

Put aside the absence of a race angle in this particular case. We know that the Obama-Holder Justice Department practices racial discrimination in enforcing Congress’s race-neutral civil-rights statutes. That is clear from the U.S. Civil Rights Commission’s investigation of the New Black Panthers voter-intimidation case– brought by the Bush DOJ but dismissed by Holder’s minions, in consultation with far-left activists, even though the government had already prevailed. Anything Holder’s department does under the rubric of civil-rights enforcement exacerbates this profound offense against our constitutional commitment to equal protection under the law for all citizens, regardless of race.

Furthermore, controversial cases that stir passions and bring out the rabble-rousers demand that high law-enforcement officials provide adult supervision. Not every wrong is a criminal wrong. Responsible prosecutors respect this premise as the Constitution’s safe harbor for the innocent; it is not a mere inconvenience to be maneuvered around. Doing justice means justice for everyone, including the suspect. While it may be news to Mr. Holder, that proposition holds even if the suspect’s name is not Khalid Sheikh Mohammed. If negligence, even lethal negligence, has occurred, its victims are not without a remedy — they can sue civilly. The criminal law, however, is not the solution to every legal problem, and its invocation where it has no place is monstrous.

The Justice Department’s conduct in the Martin case has been emblematic of Holder’s tenure: an exercise in hardball politics, not faithful law enforcement. In this case, a responsible attorney general would stay his hand. There appears to be no possibility of a federal crime. If such a possibility arises, the generous statute of limitations on civil-rights violations means there is no rush, and the “dual sovereignty” doctrine assures that there will be no double-jeopardy bar against a federal prosecution once the state’s work is done. The feds should just butt out for now: Let Florida’s system work.

And keep quiet in the meantime. We expect grand juries and petit juries to deliberate over cases in secret. The law requires that, because juries are supposed to decide without fear or favor, based on unvarnished evidence not outside agitators. In stark contrast, Holder has thrown the enormous weight of the Justice Department behind the mob. He is not seeking justice; he is pressing his thumb on the scale.

And it’s working. When Trayvon Martin was first shot to death nearly two months ago, state authorities sensibly opted not to charge George Zimmerman with murder. It wasn’t that they were looking to excuse wrongdoing. It was that the evidence was insufficient to prove murder beyond a reasonable doubt.

Plainly, there was a lack of criminal intent: There was obviously no premeditation; and, alternatively, the facts do not remotely suggest that Zimmerman acted with a “depraved mind regardless of human life”(e.g., the savage indifference of a man who fires into a crowd, heedless of the consequences). To the contrary, the known facts indicate (a) Zimmerman’s concern that Martin was acting suspiciously (the depraved do not call the police, as Zimmerman did, before shooting), and (b) a struggle in which Zimmerman may well have been severely beaten and, in any event, would have a strong basis to persuade a jury that he shot in self-defense.

In advancing that argument, Zimmerman would be aided by Florida’s “Stand Your Ground” law, which gives the law-abiding latitude to use guns for protection. The wisdom vel non of “Stand Your Ground” is beside the point. I happen to agree with National Review Online’s editors that the anti-gun lobby’s attack on Florida’s statute is unpersuasive. But regardless of who is right, ex post facto principles dictate that criminal cases be resolved based on the law in existence at the time of the conduct at issue. A criminal case may be the reason for subsequently changing laws like “Stand Your Ground,” but the Constitution does not permit a criminal case to be shored up by a midstream change in the law.

A prosecutor cannot prove murder without being able to prove mens rea (the state-of-mind element of the offense). To file a murder charge without first establishing mens rea would be unethical and violate due process. So, initially, the Florida authorities did not. But there followed over six weeks of race-baiters fanning the flames of rage. If a U.S. attorney general has any role in such circumstances, it is to call for calm, assure people that the professionals are doing their duty diligently, and urge that the process be allowed to play out. Holder, instead, decided to go Sharpton — except he’s a Sharpton with subpoena power, as well as the raw power to threaten Florida with a civil-rights investigation that would portray its police and prosecutors as racially insensitive obstacles to social justice.

Florida got the message. After the original prosecutor and police chief stepped aside under blistering political heat for declining to indict Zimmerman, the governor appointed Angela Corey, an elected state attorney of apparent ambition, as a special prosecutor. She decided not to continue with the grand jury — which would have required submitting the weak case to members of the community. She has now unilaterally filed a second-degree-murder charge against Zimmerman, based on an affidavit that is so laughably devoid of probable cause that commentators across the ideological divide — from former Reagan Justice Department official Mark Levin to Harvard’s Alan Dershowitz– have panned it as incredibly weak and grossly irresponsible. It is agitprop, not law — it makes murky mention of a “struggle” but meticulously avoids mention of the injuries sustained by Zimmerman; and it invokes the ambiguous but explosive word “profiled” while failing to explain what it means, or to clarify that, absent any racial component (and none is alleged), profiling is perfectly legitimate. Police do it all the time to avoid harassing innocent people.

You can thank Eric Holder. He has a gun to Florida’s head, and he is standing his ground.

It is quite amazing that Holder is in a position to do so. His prior tenure as Clinton deputy attorney general — a record of corrupting the pardon process, politicizing the Justice Department (even to the point of arranging commutations for convicted FALN terrorists), and misleading Congress — made it embarrassingly obvious that he was not fit to be attorney general. Yet, Senate Republicans ignored warnings to this effect and marched in merry lockstep with Democrats to confirm him overwhelmingly.

Now, so predictably, Al Sharpton is smiling. We have no justice and no peace.