The Feds Can Charge Ryan Routh with Attempted Murder of a Major-Party Candidate and a Former President

But in the brewing turf battle, the federal and state governments should train their sights on the suspect, not on each other.

I n Monday’s column (and in one I wrote for the New York Post) regarding Sunday’s apparent attempted murder of former president Trump, I addressed the challenge for federal prosecutors of finding an appropriately severe criminal charge over which they have jurisdiction. In the research I was able to do on the fly, I missed two federal statutes — one that is clearly applicable, and one that is likely applicable.

Can’t We All Just Get Along?

I’m going to address those statutes momentarily. First though, because of the familiar downward partisan spiral of all political debate in contemporary America, it’s worth reminding ourselves that, if it can be proved that Ryan Routh schemed to kill a former president and current presidential candidate, the national interest is to ensure that Routh be subjected to appropriately severe criminal sanctions in both the federal and state justice systems. This should not be a political battle between the blue feds and a red state, despite the fraught political context.

I’ve pointed out the potential challenges federal prosecutors could face, particularly due to the Biden-Harris Justice Department’s appointment of a special counsel to prosecute Trump, in the course of which Attorney General Merrick Garland rationalized that Trump’s 2024 candidacy against President Biden and Vice President Harris created a conflict for the DOJ. I haven’t contended that Garland’s position disqualifies the Justice Department from prosecuting Routh; to the contrary, I’ve consistently argued that Garland’s position is wrong — i.e., there is no conflict inherent in Biden-Harris DOJ investigations of or relating to Trump, and thus the special counsel appointment was uncalled for. The fact that Garland took his contrary position could complicate a federal prosecution of Routh; but all big cases have complications, and this one is hardly insuperable.

The bigger question is whether the feds have a good statute that would make a prosecution roughly as straightforward as a state attempted murder case would be. They do, as I’m about to discuss. But note: This means the main question is who should go first, not who should go to the exclusion of the other.

Florida is not conducting an investigation of the DOJ’s investigation of Routh. Like the DOJ, Florida is conducting an investigation of Routh’s attempted murder of Trump. The state and federal governments have concurrent jurisdiction and mutual interests; they should cooperate and resist the turf-battle temptation a high-profile case inevitably brings. Each has comparative advantages — the state will have the simplest attempted-murder statute (though not by much); the Justice Department and FBI have more investigative resources, better means to chase down relevant evidence outside Florida, and, often though not always, more experience handling big cases that draw intense national attention.

The Federal Interest in Protecting Federal Officials and Candidates

To recap, violent crime is predominantly addressed at the state level, where prosecutors have jurisdiction over any murder or attempted murder committed within the state’s boundaries. Penalties are steep, particularly in such states as Florida where first-degree murder is a capital offense, and attempted murder is punishable by life imprisonment. By contrast, murder and attempted murder are federal crimes only in contexts where Congress has codified some federal interest — an interest that usually has to be proved as an element of the offense, making the case more complicated and challenging to prosecute.

The most obvious federal interest is the protection of federal officials. Consequently, the federal law that I spotlighted on Monday, §1751, criminalizes the murder and attempted murder of a president, a vice president, and certain top executive branch officials. The statute’s coverage extends to, among others, presidents-elect and candidates who have apparently won a presidential election (by winning a sufficient number of states to secure an electoral-vote majority) but whose victory has not yet been ratified (such that they are not yet, technically, presidents-elect). Yet, even though the federal government has an important interest in protecting candidates for federal office, Congress has not extended §1751 coverage to major-party presidential candidates in the months prior to the election.

This surprised me. I suspected that Congress must have covered former presidents and major-party candidates someplace. I was an impressionable nine-year-old when the nation was rocked by the assassination of Senator Robert F. Kennedy on June 6, 1968, following his victory in the California primary. Just two months earlier, Martin Luther King Jr. had been gunned down by a fugitive, James Earl Ray. It was an era of shocking political violence.

RFK’s murderer, Sirhan Sirhan, was convicted by state prosecutors of first-degree murder the following year and sentenced to death. The federal government never prosecuted Sirhan, though RFK had been a U.S. senator and a major-party presidential candidate. Sirhan’s capital sentence was reduced to life-imprisonment when California’s highest court, in an unrelated case, temporarily invalidated the death penalty. (It was soon reinstated by a state constitutional amendment.) I assumed that if there had been an applicable federal statute, the Justice Department would also have indicted Sirhan. But §1751 did not, and still does not, extend its coverage to presidential candidates or former presidents.

Because I was surprised by this, and pressed for time (Monday was a long travel day), I conceded in the column that I could be “missing something.” In hopes of speeding the research along, I had used ChatGPT, but as I also explained, my experience is that it is very hit-and-miss in finding relevant statutes and caselaw. (As I explained Monday, I’ve been mulling a Corner post describing my research experience; I’ve resisted posting it because it’s long; I’ll post it later today so you can see what I mean.)

Section 351: Attempted Murder of a ‘Major Presidential Candidate’

The biggest “something” that I missed is §351 of the federal penal code — skimming through the code’s index doesn’t help because §351’s title does not refer to presidents, much less presidential candidates. (It’s entitled, “Congressional, Cabinet, and Supreme Court assassination, kidnapping, and assault; penalties.”) This statute was amended (in 1982, I believe) to add “a major Presidential or Vice Presidential candidate” to the list of officials whose murder, attempted murder, or kidnapping is criminalized. Recall that John Hinkley Jr. attempted to murder President Reagan on March 30, 1981; and that two women, acting independently — Lynette “Squeaky” Fromme and Sara Jane Moore — had attempted to assassinate President Ford within 17 days of each other in 1975 — painful reminders to Congress and the nation that political violence was a constant threat. It still is.

A major Presidential candidate is defined in §351(by the incorporation of a definition from another statute, §3056) as one who is

identified as [a major presidential candidate] by the Secretary of Homeland Security after consultation with an advisory committee consisting of the Speaker of the House of Representatives, the minority leader of the House of Representatives, the majority and minority leaders of the Senate, and one additional member selected by the other members of the committee.

I am going to go out on a limb and assume that Donald Trump has been designated a major presidential candidate consistent with this process. Federal prosecutors would have to establish that in court, but doing so would presumably not be difficult. Under §351(c), an attempt to kill a major presidential candidate is punishable by life-imprisonment (or “any term of years,” which can be equally harsh).

The Justice Department, then, has the statutory authority to indict Routh for attempted murder of a presidential candidate.

Section 115: Attempted Murder of a Former President

The DOJ could also indict Routh for attempted murder of a former president under yet another statute, §115 of the federal penal code. There are complications, which would give me pause if §115 were the only possible federal attempted murder charge; but it might make sense for the Justice Department to include it as a separate charge in a case in which the above-described §351 offense is the main charge.

To elaborate, I was pointed to §115 by my friend Bill Shipley, the defense lawyer and former federal prosecutor (better known on X as “@shipwreckedcrew”). At Shipwreckedrew’s Port-O-Call (his Substack, which I recommend), Bill points out that this provision makes it a felony to, among other things, attempt to murder a former president. It covers “any person who formerly served” as — among other positions — a “United States official,” which the statute defines as including “the President.”

The major complication for federal prosecutors would be §115’s requirement of proof beyond a reasonable doubt that the defendant attempted to murder “with intent to retaliate against [the former president] on account of the performance of his official duties during [that former president’s] term of service.” (Emphasis added.)

That could be difficult to establish with respect to Routh. Putting aside the questions of whether he has mental-health issues and coherent political views, Routh is said to have voted for Trump in 2016. He is also said to be zealously pro-Ukraine, but Putin did not invade Ukraine during the administration of Trump, who provided weaponry to defend against Russia that had been denied Kyiv during the Obama-Biden administration — it’s possible that Routh could have been catalyzed by the anti-Ukraine stance of many (but not all) Trump supporters; but he could also have been influenced by the House Democrats’ 2019 impeachment of Trump for delaying (but not denying) weapons deliveries in order to pressure Ukraine to investigate Biden family corruption. Or perhaps Routh turned against Trump because of the former president’s subversions between Election Day and the Capitol riot; but on that score, the Justice Department is currently in court contending that Trump is not immune from prosecution for those acts because, the special counsel maintains, they were not official duties of the presidency. It could be a quandary, then, for the DOJ to argue that those same acts were official duties for purposes of a case against Routh.

Needless to say, a prosecutor in an attempted murder case does not want the jury diverted away from the murder scheme by a morass of mind-reading regarding the motives of an unstable person. State prosecutors, to the contrary, are not required to prove a particular motive. They are permitted to prove motive to the extent that doing so helps their case, but motive is not a required element that must be established beyond a reasonable doubt to the unanimous satisfaction of the jury.

Now, let’s talk punishment. Under §115, attempted murder of a former president is punishable by zero to 20 years’ imprisonment. (The statute’s penalty provision incorporates the penalty provision in §1113 of the federal penal code, which controls attempts to commit murder or manslaughter within the special maritime and territorial jurisdiction of the United States.) Shipley theorizes that the Justice Department could try to seek a penalty of zero to 30 years because Routh used a firearm — an SKS rifle — in the commission of his offense. I don’t think that would work.

The structure of §115 is to lay out (in subsection (a)) four categories of attacks: (1) assault, (2) kidnapping, (3) murder (including attempted murder), and (4) threats to assault, kidnap, or murder. Then, the statute (in subsection (b)) prescribes penalties in four subdivisions, applicable to (1) assault, (2) kidnapping, (3) murder, and (4) threats. The exacerbated zero-to-30-year penalty provision is for assaults in which a gun is used, not for attempted murder (for which, as noted above, the penalty is zero to 20 years).

Moreover, even if the feds could mix and match — i.e., charge attempted murder but convince a judge that the assault penalty is applicable — they’d have a hard time proving gun use. When the Secret Service disrupted Routh (shooting at him), he allegedly abandoned the SKS rifle he’d planned to use. He dropped it and fled — not firing at the Secret Service agents, let alone at Trump. There would thus be a significant legal and factual question of whether he “used” a firearm.

The Supreme Court has wrestled with the concept of gun use in connection with a statute (§924(c)) that makes it a crime to use or carry a firearm in connection with a violent crime. In this instance, carry cannot save the day because Congress did not include it in §115. As for use, the Court has held (in Bailey v. United States [1995]) that, far from being synonymous with possess, the term use calls for prosecutors to establish the active employment of the firearm in relation to the predicate offense (here, again, attempted murder).

I am not saying the Justice Department would have no chance on this. There is a plausible argument that Routh actively employed the gun: He didn’t just possess or carry it, he was staked out with the apparent intent to shoot Trump. But in the end, he didn’t shoot at Trump or use the gun against his pursuers; he fled. Under these circumstances, would a jury find use beyond a reasonable doubt? I wouldn’t bet the ranch on it.

The Crime of Attempted Murder

We usually associate attempted murder with assault because the former always at least contemplates, and often actually involves, the latter. But though it may seem counterintuitive, one can commit attempted murder without committing assault.

Finally, then, this is a good place to address a specious argument making the rounds: the contention that attempted murder cannot be established in this case — at either the state or the federal level — because Routh neither assaulted nor shot at Trump. This misapprehends the criminal-law concept of attempt.

To prove attempt, prosecutors must show that an accused (a) intended to carry out a crime (here, murder) and (b) took a substantial step toward carrying it out. Obviously, a substantial step is not the last possible step short of completing the crime. If it were, investigators who were onto a suspect would have the perverse incentive to allow the suspect to come dangerously close to committing the crime before trying to make an arrest; that would endanger public safety.

To be sure, there are some situations in which it can be tough to distinguish between a substantial step and mere preparation — the latter is insufficient to establish an attempt. But having prosecuted many attempt cases, I’ve found that the best way to understand a substantial step is to apply common sense: Is the evidence of purposeful conduct, in conjunction with evidence of intent, strong enough to convince a reasonable person that the accused tried to carry out the criminal objective? If so, then attempt has been proved.

Bill Shipley argues, and I agree, that it would be reasonable to believe Routh wanted to murder Trump and took elaborate steps toward that end, including arming himself with an SKS rifle, traveling to Trump’s Florida golf course, and lying in wait for nearly twelve hours, then trying to flee when he realized he’d been caught. That’s a sufficient attempted murder case.

Conclusion

Both the Justice Department and state prosecutors in Florida appear to have attempted-murder charges, carrying life-imprisonment sentences, that they can bring against Routh. In hindsight, I wish I had done more research, rather than hedging, before suggesting that the DOJ lacked a statute as strong as Florida’s. That said, my point is strategic, not partisan. It would be foolish — just because one may like the Biden-Harris administration and dislike Governor Ron DeSantis (R., Fla.), or vice versa — to argue that either the federal interest in protecting participants in elections for high federal office, or the state interest in public safety (including the safety of political candidates while in Florida), takes precedence. Both are public interests — indeed, vitally important ones. If the feds go first (and only the DOJ has filed charges to this point), Florida should cooperate. If Florida goes first, the feds should cooperate.

But let’s try to remember: The bad guy here is the one who allegedly tried to murder a former president and major-party presidential candidate. The federal and state governments should train their sights on him, not on each other.