Eric Holder, Racial Profiler

By Andrew C. McCarthy

Saturday, August 23, 2014

Why has a federal civil-rights murder investigation arisen out of the tumult in a St. Louis exurb? There is only one plausible reason: Eric Holder is guilty of racial profiling.

To be clear, we are not talking here about whether there was justification for the shooting of a young black man, 18-year-old Michael Brown, by a young white police officer, 28-year-old Darren Wilson. Was the shooting a legitimate exercise in self-defense by an officer under attack? Was it an overreaction for which Officer Wilson should suffer serious civil and criminal consequences? Such questions can only be answered by a thorough and fair investigation, the kind of due process owed to both the victim and the subject of the investigation — the kind that, as National Review’s editors point out, will be tough to mete out with political thumbs pressing on the scales.

Whatever the outcome, though, murder — including homicide caused by a policeman’s application of excessive force — is generally not a federal crime. It is a concern of state law. Only a few categories of murder are within the jurisdiction of federal investigators. In the main, they are far afield from Ferguson: the assassination of a U.S. government official, for instance, or a killing incidental to offenses that have interstate or international repercussions — racketeering, drug-trafficking, and terrorism.

Federal civil-rights laws may be invoked, but only in exceedingly rare circumstances: murders carried out because of the victim’s race, ethnicity or religion (see Section 249 of the federal penal code); or murders carried out by police (or other persons acting “under color of law”) with the specific intent to deprive a person of some federal right or privilege — usually, but not necessarily, motivated by some animus toward race or analogous personal characteristics (see Section 242).

To constitute a civil-rights crime, it is not nearly enough for a violent act to have the “racial overtones” assorted agitators and commentators choosing to frame the case in racial terms contend it does. To justify a federal investigation, the Justice Department must have a rational basis to believe it could prove these invidious and evil purposes beyond a reasonable doubt. That requires compelling evidence, not a farfetched social-justice narrative.

Remember the similarly tragic Trayvon Martin shooting, when Mr. Holder colluded with the notorious Al Sharpton in raising the specter of a federal civil-rights prosecution, pressuring state officials in Florida to file a specious murder indictment. After a jury swiftly acquitted George Zimmerman, Holder was forced to retreat. As he had to have known all along, the evidence of intent to deprive Mr. Martin of his civil rights was non-existent — even weaker than the state’s flimsy murder case.

Well, here he goes again.

Based on what is known about the unblemished six-year record of Officer Darren Wilson and the facts surrounding his shooting of 18-year-old Michael Brown, there is no reason to suspect racism, much less that any thought was given to Mr. Brown’s federal rights during the sudden, violent exchange. There is no way this is a civil-rights case . . . unless you are a backward-thinking dolt who spots racism based on nothing more than the fact that the police officer is white and the victim is black.

It is a violation of federal law to subject a person to criminal investigation solely on the basis of his race. To prevent such government abuse, to root out institutional racism, is the objective of the civil-rights laws, which hold that a person may not be deprived of his rights and privileges — including due process and equal protection under the law — based on his race.

If the Justice Department would not open a civil-rights investigation based on a black police officer’s shooting of a civilian, whatever the victim’s race, then a white officer is just as entitled to that presumption of innocence. It is no more legitimate for the Justice Department to target a white cop for being white than for a white cop to target a black man for being black. Both would be examples of what the civil-rights laws call “deprivation of rights under color of law.”

The U.S. Attorney’s Manual, which guides Justice Department prosecutors, is clear on this point (USAM, Sec. 9-27.260):

    In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government should not be influenced by. . . . the person’s race, religion, sex, national origin, or political association, activities or beliefs.

The manual elaborates that prosecutors must, of course, take note of personal characteristics when they are pertinent to the offense. Investigations of immigration violations, for example, necessarily involve a person’s national origin. And the fact that a victim and offender are of different races can be considered in building the case for a civil-rights investigation. But this simply means the government need not drop a case that is based on solid evidence of racial animus just because racial difference is part of its proof. It does not mean the mere racial difference can ever substitute for solid evidence of racial animus.

Simply stated, it is impermissible for federal investigations to be commenced in the absence of colorable suspicion based on solid evidence. Yet, despite the absence of any suggestion that Darren Wilson is a racist, we know he has been made the subject of a civil-rights investigation. Obama-administration officials may not yet suspect that Nidal Hasan’s 2009 jihadist mass murder of 13 American soldiers was a terrorist attack, or that the Muslim Brotherhood is anything but a “largely secular” organization. They may have given the benefit of the doubt to Assad (the “reformer”), Iran (our good faith negotiating partner), Al Sharpton (Holder’s civil-rights adviser), and the IRS (not a “smidgeon” of corruption). But not to Darren Wilson. No sooner had the looting followed the shooting than Holder ceremoniously announced a Justice Department civil-rights murder probe.

Based solely on Wilson’s race.

It is ironic at first blush. Holder, after all, is the self-proclaimed scourge of racial profiling. Over the years, he has been a prominent Lawyer Left voice for the idea that institutional racism explains the lopsided representation of black men in the population of American convicts (with strangely less concern for the lopsided representation of black communities among crime victims). The CAIR-driven Muslim grievance sector also has the attorney general’s ear: It has become verboten to make the commonsense observation that Islamic doctrine just might have something to do with terrorism plotted against the United States throughout the past quarter-century by Muslims — that all those “smite their necks” verses just might shed some light on the decapitation of American journalists.

So how could Holder be what he purports to abhor, a racial profiler? It is because his selectively zealous anti-racism is the necessary flipside of his race obsession.

This obsession holds that racism is America’s original, indelible sin. Crusading for “racial justice” — understood as desired outcome, not due process — becomes the highest cause. And the crusade can never end, no matter how objectively just society has become, because that would put the crusaders out of business . . . and out of power.

Victor Davis Hanson diagnosed the condition with characteristic clarity as soldiering “in service to critical legal theory.” As Professor Hanson described this mindset, to Holder’s ilk laws are just “constructs that legitimize the prejudices of the wealthy and the privileged of society.” Thus, the attorney general’s job is not to enforce laws; it is to use them to even the score — or run roughshod over them if they are not useful to the social-justice enterprise. Holder and the zealots he directs lawlessly make up their own civil-rights laws, and we must either buy in or be demagogued as “a nation of cowards” on racial matters.

The lawlessness ill suits an attorney general of the United States, but it comfortably aligns with government by race-obsessed, brass-knuckles, Chicago-style community organizing. In 1987, young disciple Barack Obama contributed a chapter to a retrospective on Saul Alinsky, 15 years after the path-breaking community organizer’s death. Blacks in America, Obama wrote, were “dispossessed people” for whom

    this internal debate has raged between integration and nationalism, between accommodation and militancy, between sit-down strikes and boardroom negotiations. The lines between these strategies have never been simply drawn, and the most successful black leadership has recognized the need to bridge these seemingly divergent approaches. [Emphasis added.]

A Justice Department that devolves from a bulwark of the rule of law to a bridge between law and lawlessness, between civil-rights enforcement and civil-rights offense, is not a Justice Department worth having. Neither is an attorney general who would lead it so.