On The Case

The Justice Department’s mission in Charlottesville

(Reuters) - The federal civil rights laws of the United States prohibit violence motivated by race, religion, gender, national origin, sexual orientation or disability.

It’s also illegal to use force to stop other people from participating in a federally protected activity and to conspire to impede other people’s civil rights. These are among the statutes the U.S. Department of Justice categorizes as federal hate crimes.

They are not a precise fit for what James Alex Fields Jr is accused of doing this weekend during a rally of white nationalists in Charlottesville, Virginia. Fields, as you are surely aware, was photographed and videotaped driving his Dodge Charger into a crowd of counter-protesters on Saturday, killing 32-year-old paralegal Heather Heyer and injuring 19 others. Virginia law enforcement officials have already charged Fields with murder and other crimes. On Monday, he was denied bail after a hearing in state court in Charlottesville.

Late Saturday, U.S. Attorney General Jeff Sessions announced a Justice Department investigation of the deadly act. “When such actions arise from racial bigotry and hatred, they betray our core values and cannot be tolerated,” Sessions said. The AG said FBI agents have been dispatched to Charlottesville to coordinate with state and local authorities. The Richmond FBI office and U.S. Attorney’s Office said separately that federal investigators would “collect all available facts and evidence.”

In a followup statement to Reuters on Sunday, the Justice Department emphasized the breadth of its mandate in Charlottesville. “The Civil Rights Division’s criminal section works with its partners in the United States Attorneys’ Offices and the FBI to enforce federal criminal civil rights statutes, including hate crime statutes, one or more of which may be implicated by yesterday’s tragic attack,” the statement said. “The investigation is not limited to the driver. We will investigate whether others may have been involved in planning the attack.”

The Justice Department, in other words, has pledged to fulfill its obligation to safeguard federal civil rights. As it should. The Justice Department’s enthusiasm for civil rights prosecution has waxed and waned since hate crime laws were first passed in 1968, but DOJ has an important history as the institution of last resort for minorities targeted in hate crimes. Even in the past seven months, under a president criticized for initially failing to condemn white supremacists and an attorney general with a controversial civil rights record, DOJ has quietly continued to prosecute bigots for civil rights crimes. Notably, under an unusual feature of the hate crime statutes, those prosecutions must be approved, in writing, by Sessions himself (or someone designated by the AG).

“The Justice Department, as an institution, had to do something,” said University of Michigan law professor Samuel Bagenstos, an official in the Obama DOJ. “They had to say, ‘We are here to protect civil rights.’”

It’s entirely possible, according to four former DOJ civil rights lawyers I talked to on Monday, that Fields will not end up facing federal charges. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 made it a bit easier for federal prosecutors to bring cases based only on the motivation of the defendant and the identity of the victim. (The previous statute required prosecutors also to prove the victim was engaged in federally protected activity – an expansive but not all-encompassing category.)

Federal prosecutors still, however, have to prove defendants targeted victims who belong to protected minority groups. The Justice Department was able to show, for instance, that Charleston killer Dylann Roof deliberately chose an African-American church for his rampage. To charge Fields under the Shepard/Byrd Act, federal prosecutors would have to offer evidence that he drove into a crowd in order to kill or injure people in the specific groups the law addresses. As one former hate crimes prosecutor pointed out, most criminal statutes don’t require proof of intent. If you rob a bank, prosecutors don’t have to explain why you did it to prove your guilt. They do, however, if you’re charged with federal hate crimes.

Depending on what the Charlottesville investigation turns up, it may be simpler to prosecute Fields under Virginia criminal statutes. Remember, the Justice Department’s statement said that FBI investigators are working alongside state and local officials to find out what happened. That’s not uncommon, former DOJ civil rights lawyers told me. “There is no general practice,” said Bagenstos, the former Obama DOJ lawyer. “The Justice Department has the authority to investigate from the beginning or to wait and watch.”

Federal resources and expertise, said former civil rights prosecutor Kristen Clarke of the Lawyers’ Committee for Civil Rights Under Law, are a boon to state officials, especially if the investigation crosses state lines. Fields, for instance, traveled to Virginia from Ohio to participate in a rally advertised across the country on social media. “It’s critical that in these early hours, the Justice Department is on the ground,” Clarke said.

The Justice Department followed a similar course in the Roof case, investigating along with state officials. South Carolina indicted Roof before he was indicted for hate crimes, but state prosecutors ended up agreeing to defer their case until Roof was tried in federal court. He was eventually convicted of hate crimes and sentenced to the death penalty because he used a firearm to carry out the killings.

Assuming their investigation produces evidence of a crime, state and federal prosecutors will ultimately have to decide who is best positioned to try Fields (and, of course, anyone else implicated in the Charlottesville violence). Does Fields’ motive justify a case under Shepard/Byrd or the 1968 statute prohibiting violent interference with federally protected rights? Whose statute carries a higher penalty? Can the state go to trial more quickly than Justice Department prosecutors? Those are all questions that will be part of the calculus if Fields is indicted.

But in the meantime, said Clarke and Bagenstos, the Justice Department has at least shown its initial commitment to vindicating federal civil rights laws. “Hate crimes are a unique threat to democracy,” said Clarke.

The attorney general promised justice in Charlottesville. We can all hope he helps deliver it.