Any federal prosecution should await the conclusion of criminal proceedings at the state level.
Any federal prosecution should await the conclusion of criminal proceedings at the state level.
Author’s note: While not refuted, this column has been effectively superseded by this one, published two days later. At the time of this column, I had not realized that §351 of the federal penal code makes it a crime, among other things, to attempt to murder a major presidential candidate. I was thus under the misimpression that there was no such federal statute. As I related in the column, I was surprised by this omission (as I mistakenly believed it to be). As it turns out, I did miss §351. I note that when enacted it did not include major presidential candidates within its coverage. It was later amended to include within its coverage, among others, “a major Presidential or Vice Presidential candidate.” In addition, another statute, §115, potentially covers attempted murder of a former president — although, as the subsequent column elaborates, its application may be problematic in connection with Ryan Routh’s alleged attempted assassination of former President Trump. Finally, one of the reasons I opined in this column that the Justice Department should defer to Florida prosecutors — allowing them to be first in proceeding against Routh — was the Biden-Harris DOJ’s position (since late 2022) that Trump’s 2024 candidacy against Biden and Harris created a conflict that required DOJ to appoint a special counsel to Trump investigations. That basis for deference to the state would be stronger if, as I assumed, the federal government was not in a position to invoke a strong attempted-murder statute, as Florida’s government is. Given that the federal government does have at least one strong attempted-murder statute, the argument for federal deference to the state is not as forceful. In any event, as I’ve argued, the federal and state governments should cooperate and resist a turf war that could harm everyone’s prosecutorial efforts.
O bviously, both state and federal law-enforcement agencies are investigating yesterday’s apparent attempt by a 58-year-old man identified as Ryan Wesley Routh to assassinate former president Donald Trump. This is as it should be.
Nevertheless, the feds should be in a support role, at least for now.
Here, state jurisdiction over the most serious apparent crimes is incontestable. Federal jurisdiction is sketchy, at best. Moreover, the Biden–Harris Justice Department should defer to Florida prosecutors in light of DOJ’s record of politicized gamesmanship regarding Trump’s status as the Republican nominee opposing the Democratic candidate — first President Biden, now Vice President Harris — in November’s presidential election.
Presumptively, states have primacy over the prosecution of violent crimes, including attempted murder, committed within their jurisdiction. In Florida, the matter is straightforward: Murder is a capital offense; attempted capital murder is a first-degree felony for which a sentence of life-imprisonment is the maximum penalty.
By contrast, the federal government has jurisdiction to prosecute murder or attempted murder only where Congress has codified some federal interest. Unless I am missing something, federal jurisdiction to prosecute the attempted murder of a major-party candidate for president does not kick in unless and until that candidate has apparently won the presidential election.
In the federal penal code, §1751 covers assassination attempts on the president and vice president, and on people whose assumption of those offices is imminent because they have won, or apparently won, the presidential election. Section 1751(f) expressly limits those people to the president-elect, the vice president–elect, and
such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President . . .
An “apparently successful” candidate, then, is one who appears to have won the majority of the states’ electoral votes but whose victory is not yet official — presumably because the electoral majority certified by the several states (which becomes the Electoral College majority) has not yet been ratified by Congress at the joint session that occurs on January 6, two weeks prior to Inauguration Day.
Beyond that, federal law covers assassination attempts on certain federal officers, visiting foreign dignitaries, and members of their families (see §§1114, 1116). But I have been unable to find statutes that specifically and unambiguously cover major-party candidates for the presidency and vice presidency in the pre-election period. Nor does there appear to be a statute that covers former presidents and vice presidents.
I have heard contentions that the logic of §1751 covers major-party candidates when read in conjunction with §3056, which addresses the duties of the Secret Service. But §3056 merely gives the Secret Service authority to protect major-party candidates; it does not expand the coverage of §1751, which defines the assassination crime and limits its coverage to candidates who have won the election (and, as described above, to incumbents). (When I have time, perhaps I will share an amusing argument I had with ChatGPT on this point — a good reminder for lawyers out there: ChatGPT is a wonderful legal-research resource for finding pertinent statutes and cases; but you have to double-check everything . . . in my experience, it only bats about .500.)
I was frankly surprised to find that Congress had not expanded federal authority to cover candidates for federal office — surprised enough that I’m still not confident there isn’t some obscure law or regulation that I’ve missed. On the other hand, when I tried terrorists back in the nineties as a federal prosecutor, we had evidence that they had plotted to abduct former president Richard Nixon and former secretary of state Henry Kissinger (both now deceased), but I recall being frustrated at being unable to find federal statutes that squarely covered Nixon and Kissinger based on their status as former holders of high federal office. (Kidnapping is a federal crime only when there is a federal jurisdictional hook.) By contrast, the above-cited Section 1116 made it easy to charge the jihadists’ unsuccessful conspiracy to murder Egypt’s then-president Hosni Mubarak (also since deceased) when he was visiting New York City to address the United Nations in the early Nineties.
The investigation of Routh is still in its infancy, and I have little doubt that good federal prosecutors and investigators will find triggers for federal jurisdiction. Still, the public interest is always best served by the simplest route to an appropriately severe punishment for a heinous offense. That will surely be prosecution by the state of Florida.
Beyond that, there is the Biden–Harris DOJ’s record.
On November 18, 2022, Attorney General Merrick Garland appointed a special counsel to investigate and prosecute Trump. This was done despite the facts that (a) there was no conflict of interest in a Democratic-controlled Justice Department’s investigation of a prominent Republican; (b) the Biden–Harris DOJ, consequently, had been investigating Trump for nearly two years with no special counsel; and (c) Garland had failed to appoint a special counsel to conduct the Hunter Biden investigation (in which President Biden was implicated), as to which DOJ had a patent conflict of interest.
The appointment of Smith was manifestly driven by political calculation. The Biden–Harris administration knew that Trump was likely to be the Republican nominee, and that he would claim that his investigation and inevitable federal prosecution (two prosecutions — in Florida and Washington, D.C. — as it turned out) amounted to Biden’s exploitation of executive power against a political rival. To attempt to blunt that partisan political argument, Garland appointed Smith to manufacture the illusion that Trump’s case had been handed over to an outside prosecutor independent from the Justice Department and the administration. (In point of fact, Smith exercised Biden’s power, reported to Garland, and staffed his team with Biden–Harris DOJ lawyers. And when his appointment was challenged on constitutional grounds, Smith claimed to be directly supervised by Garland — notwithstanding Garland’s claims to the contrary.)
In making this unnecessary special-counsel appointment, Garland rationalized that Trump’s early announcement of his presidential bid required insulating the Biden–Harris Justice Department from electoral politics.
Having made that decision, Garland should be stuck with it. It is the Biden–Harris administration that claimed Trump’s candidacy against the incumbent Biden–Harris ticket made DOJ’s direct participation in the Trump investigations inappropriate. Since the Justice Department has fabricated a conflict of interest regarding Trump’s candidacy against Vice President Harris, it should defer to Florida on the investigation of an assassination attempt on this same Republican presidential nominee.
Hence, since Florida has presumptive and undeniable jurisdiction over the alleged attempted murder; since federal jurisdiction over the alleged attempted murder is dubious and, at a minimum, more complicated; and since the Biden–Harris Justice Department has previously concluded that Trump’s status as the Republican presidential nominee required the appointment of a special counsel to avoid DOJ’s direct control of investigations related to Trump, the federal government should support Florida’s investigation and prosecution of Routh. Any federal prosecution should await the conclusion of criminal proceedings in Florida.