The DOJ’s Abusive Indictment of the Police Who Killed George Floyd By Andrew C. McCarthy
Federal prosecution of these defendants makes no sense — except as a political matter.
A t best, the Justice Department’s indictment of Derek Chauvin and the three other former Minneapolis cops involved in George Floyd’s killing nearly a year ago is overkill. At worst, it is an exercise in political zeal that could undermine the accountability being achieved by state prosecutions. In the meantime, it is abusive — ironically so given that the charges are brought under the guise of upholding civil rights, though it obviously has not dawned on the Civil Rights Division’s social-justice warriors that police have civil rights, too.
Chauvin, of course, has just been convicted by a Minnesota jury on two murder counts, as well as a manslaughter charge. He faces up to 40 years’ imprisonment — the maximum sentence on the most serious charge, second-degree felony murder — when he is sentenced, which is scheduled to happen on June 16. State prosecutors have asked Judge Peter Cahill to apply penal-law enhancements that would push Chauvin’s term close to the maximum. Even if the court does not apply all of them, Chauvin’s sentence is bound to be severe — probably 20 years or more, maybe a lot more.
And make no mistake: That will be a very tough stretch, assuming the 45-year-old survives it. Chauvin is a notorious ex-cop convicted in a case that is racially charged, notwithstanding the absence of racial-bias evidence. He will be a target for gangs and other violent inmates. Holding him in the general prison population would not be responsible in the short term, if ever. There is no harder time than time in isolation. That is not a defense of the excessive force that resulted in the jury’s verdict; it is simply a realistic observation of what lies ahead.
The other three former cops charged by the Justice Department are Chauvin’s partner, Tou Thao, a 35-year-old veteran of the force, and a pair of rookies, Thomas Lane and J. Alexander Kueng, 38 and 27 respectively, who were brand new to the job when they encountered Floyd last Memorial Day. The three are scheduled to be tried jointly in state court, starting August 23, on charges of aiding and abetting second-degree murder and manslaughter. Furthermore, prosecutors are pushing to add a third-degree “depraved indifference” murder charge, just as they controversially did in Chauvin’s case. In less than two weeks (May 20), a state appellate court will hear arguments on whether that should be permitted.
Abusive Timing
That brings us to the timing of the Justice Department’s indictment. There was no good reason to announce it now. By doing so, besides ratcheting up the pressure on Judge Cahill to impose a severe sentence on Chauvin, the Civil Rights Division gratuitously prejudices the jury pool in Minneapolis, from which a panel will be selected to sit on the trial of Thao, Lane, and Kueng.
As Attorney General Merrick Garland well knows — and as he would surely have pointed out to prosecutors if a similar issue came before him when he was a respected judge on the D.C. Circuit Court of Appeals — the state court already faced an incredibly difficult task in trying to ensure a fair and impartial jury for the August trial. There are significant grounds to believe that Chauvin did not receive constitutionally adequate due process due to the jury’s immersion in unfairly prejudicial publicity (to say nothing of the ongoing intimidation campaign against witnesses who testify on behalf of the accused former police). The federal government was a culprit: California representative Maxine Waters (D.) made outrageously provocative public statements — essentially calling for violence unless there were murder convictions — right before the jury retired to deliberate; President Biden egregiously chimed in to express hope for guilty verdicts while deliberations were ongoing; and the Justice Department made it clear that civil-rights charges were under consideration.
So why would the Justice Department announce its indictment now? There was no legal pressure to do so. The statute of limitations has years yet to run. Moreover, under the “dual sovereignty” doctrine — under which a state prosecution provides no double-jeopardy protection against a subsequent federal prosecution — there is no constitutional issue. Regardless of whether the state convicted or acquitted the four ex-cops on some or all of the charges, there would be no impediment to the Justice Department’s filing of charges at some future point.
That is, the Justice Department could easily have kept its powder dry until after all four defendants were tried in state court and, if convicted, sentenced. The state cases should be wrapped up by the end of the year: assuming the August trial takes roughly as long as Chauvin’s trial, it should be over in October; if any or all of the defendants are convicted, sentence should be imposed by December. At that point, if the feds were hell-bent on proceeding with yet another prosecution, the Civil Rights Division could have unsealed its indictment. Federal prosecutors could then have moved ahead on their civil-rights charges without any danger of further complicating and unfairly prejudicing the state court proceedings.
In fact, if we suspend disbelief and assume the Justice Department’s good faith, that would have been the proper procedure from a federal law-enforcement perspective. As AG Garland must know, because his Justice Department’s announcement of an indictment has further poisoned the well, it would be entirely reasonable for defense counsel to seek a delay in the state trial scheduled for August. Only that, they will argue, could dissipate any unfair prejudice caused by the Justice Department’s announcement of charges. Indeed, the Justice Department’s gratuitously timed announcement adds fodder to the defendants’ claims that the state trial should be moved out of Hennepin County.
What if Judge Cahill, who has already expressed frustration over federal disregard for the state’s effort to provide due process, decides to grant defense motions for an adjournment and/or a change of venue? That would mean the federal civil-rights case would be pushed further into the future. Federal prosecutors are supposed to respect the state’s constitutional processes while moving efficiently to vindicate federal interests. Here, to the contrary, they are undermining the state’s constitutional processes and risking needless delay on the federal front.
DOJ’s Civil Rights Division is, in addition, strengthening Chauvin’s appeal. Judge Cahill has already opined that Representative Waters’s antics may cause Chauvin’s convictions to be thrown out on appeal. By publicizing the federal charges right before he is to be sentenced, and heedless of the prejudicial impact on the three ex-cops yet to be tried, DOJ has handed Chauvin more ammunition to argue that federal and state prosecutors insidiously inflamed the jury pool and the sentencing judge in violation of his due-process rights — rights the Justice Department’s Civil Rights Division is obliged to protect.
Redundant Prosecution
In addition to the inexplicable timing, one must ask why the Justice Department is filing these charges.
Chauvin stands convicted and will spend most, if not all, of the rest of his life in prison. The due-process issues on appeal are serious, but Minnesota’s appellate courts are likely to uphold the convictions, reasoning that the evidence was sufficiently strong that even exemplary due process would not have changed the outcome. In the unlikely event reviewing courts were persuaded by Chauvin’s claims, the most that would happen is he’d get a new trial, during which state prosecutors (and federal prosecutors on the sidelines) would presumably take their obligations more seriously. The immensely high probability is that Chauvin would again be convicted and sentenced severely.
Furthermore, it is highly likely that the other three ex-cops will be convicted — at least on manslaughter, and likely on murder. As I explained during Chauvin’s trial, the testimony of the state’s highly persuasive expert pulmonologist, Martin Tobin, makes the state’s case stronger against the other defendants, particularly Lane and Kueng.
Dr. Tobin explained that the main cause of Floyd’s death was not the pressure Chauvin applied to his neck area; it was the pressure Chauvin, Lane and Kueng jointly applied, especially to his back. That is what made it difficult for Floyd to expand his lungs and draw breath. The case is compelling against Thao, too. He was close enough to see exactly what was going on, yet he ignored the crowd of onlookers pleading on Floyd’s behalf; indeed, Thao specifically prevented one bystander who was a trained emergency medical technician from coming to Floyd’s aid, even after he lost consciousness and had no pulse. These three former police are very likely to be found guilty by a Minnesota jury; assuming that happens, they, like Chauvin, will face significant sentences.
It does not make enforcement sense for the federal government to prosecute these defendants after they are convicted and sentenced to hard time by the state, based on the exact same conduct. The feds are also separately charging Chauvin based on a second alleged incident of excessive force. But even if he were convicted on that charge (the strength of which we’re not yet in a position to evaluate), it would not result in Chauvin’s being given a sentence of significant additional incarceration.
Apologists for the Biden Justice Department will doubtless point out that the Justice Department frequently files indictments before state proceedings are concluded in dual-sovereignty situations. That would be a strange argument to make here, though, because DOJ customarily does that out of respect for the due-process rights of the accused. The usual practice is to obtain a federal indictment from the grand jury and seal it to avoid publicity that would prejudice the state proceedings. Then, the indictment can be unsealed after the state case. That way, if the defendant is acquitted by the state, no one can credibly claim the federal indictment is punitive or vengeful.
Here, the Justice Department has gone out of its way to undermine the due process rights of the accused.
Dual Sovereignty
Quite apart from that, though, let’s think about dual sovereignty. While it is permissible for the feds to prosecute after the state has done so, such prosecutions are rare because Justice Department guidelines discourage them. Trying a person two times for the same offense understandably strikes Americans as unfair, even if it is technically constitutional. As a result, the Justice Department permits a second prosecution only sparingly: when the failure to prosecute would result in a grievous miscarriage of justice — generally because the state proceedings were somehow flawed, or because, absent prosecution, some important federal interest will not be vindicated.
That is not the George Floyd situation.
State convictions and stiff sentences against the former police officers in this case would easily satisfy federal concerns. The theory of the state prosecutions is that, even though George Floyd was lawfully arrested and detained, police exploited their detention authority, abusing his rights to (a) be subjected to only reasonable (not excessive) force, and (b) have police protect his right to life. Chauvin was found guilty of those abuses, and it is highly likely that the other three former officers will be, too.
Minnesota’s holding the ex-cops accountable thus fully vindicates the federal interest in promoting policing that meets U.S. constitutional standards. That interest is the only rationale for permitting a limited federal intrusion into a sovereign state responsibility, the policing of local communities.
Federal prosecution here would violate the spirit of the Double Jeopardy Clause (though not its letter) toward no meaningful end. It would not result in longer sentences. It would not fulfill unsatisfied federal interests. And it could actually undermine accountability.
Tougher Federal Case
The ex-cops stand a better chance of being acquitted in federal court than in the state prosecution. Don’t be confused on this. The issue in the federal case would not be whether George Floyd was murdered. It would be whether it can be proved, beyond a reasonable doubt, that the police willfully deprived Floyd of his rights under the Constitution and federal law.
Willfulness is the most burdensome intent standard in the criminal law. It nearly defies the old adage that ignorance of the law is not an excuse. The prosecution would have to establish that the defendants were aware that they were violating federal law and acted with an evil intent to do so.
While the officers comported themselves inexcusably (which is why they stand to be convicted of homicide in the state cases), they were making a lawful arrest, it was lawful to detain Floyd, and the police are the ones who called the ambulance in order to get Floyd medical attention — which cuts against the notion that they were trying to kill him or seriously injure him.
It is fair enough to counter that these were trained police officers who knew Floyd had rights, knew they were responsible to care for him while he was in their custody, and yet unreasonably (a) maintained him in a dangerous hold and (b) failed to provide first-aid when his breathing and pulse failed. So yes, they could be convicted in federal court. Still, the case is far from a slam-dunk. If the defendants were acquitted, that would enable them to claim vindication and undercut the accountability for police brutality that the Minnesota convictions had accomplished.
As a law-enforcement matter, the federal prosecution is not defensible. It is a needlessly redundant expenditure of federal resources to achieve a result that will already have been achieved by the state prosecutions. It puts defendants in jeopardy a second time for the same wrongful actions. Convictions would not advance accountability, but there is a significant risk of acquittals that would undermine accountability. And, under the guise of prosecuting an abuse of civil rights, the Justice Department and its Civil Rights Division are quite intentionally violating the civil rights of the defendants to fair criminal proceedings in the state court.
Of course, as a political matter, the prosecution makes all the sense in the world. The Biden administration needs to appease its angry base on the hard left. The administration is not in a position to deliver landmark progressive legislation. Instead, it is using the Justice Department to project solidarity with Black Lives Matter and other woke activists, fueling a toxic narrative that the nation’s police are the shock troops of America’s systemic racism.
This won’t end well.
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