REUTERS/Lothar Speer
In the second attempted assassination of former President Donald Trump this summer, the Biden-Harris Justice Department has rushed to charge Ryan Wesley Routh in a two-count criminal complaint alleging federal firearms offenses.
These are obviously not the main crimes here: This appears to be a case of attempted murder of a major-party presidential candidate.
Naturally, we have the makings of a prosecutorial turf war.
Attempted murder is a state crime — a very serious one in the state of Florida, where murder is a capital offense. From a public-interest perspective, the case should be charged as attempted murder.
But it appears that the feds have rushed to lodge federal charges against Routh in hopes of getting the upper hand over their state counterparts.
Assassination attempts are rare; ambitious prosecutors are not. And ambitious federal prosecutors always want to control the criminal cases of great national consequence.
Yet that is not always the best thing for the case.
There is little doubt that both federal and state authorities have charges they can and should bring against the would-be assailant.
In the first instance, prosecution should proceed in the system in which the most straightforward, appropriately severe charges can be brought.
In this instance, that is the state of Florida.
Moreover, in 2022, Biden-Harris Attorney General Merrick Garland speciously claimed that Trump’s status as a Republican candidate running against the Biden-Harris ticket required appointment of a special counsel — because it was supposedly inappropriate for the DOJ to become embroiled in prosecutions involving the likely Republican nominee.
This was a political calculation. There was no need for a special counsel in DOJ’s investigation of Trump, which had been going on for nearly two years with no special counsel appointment — two years during which Garland failed to appoint a special counsel to investigate Hunter Biden and the Biden family influence-peddling scheme, as to which there was a patent conflict of interest.
Nevertheless, having made this decision, the Biden-Harris administration and its Justice Department should be stuck with it.
Garland claimed DOJ should stay out of Trump-related cases, and that a special counsel was necessary to insulate it from claims of politicized prosecution.
In light of those representations, then, the department should defer to Florida prosecutors.
More to the point, Florida should have primacy for legal reasons.
Attempted murder is a very straightforward charge in the state, carrying a maximum penalty of life imprisonment.
By contrast, the Justice Department may only charge murder or attempted murder if Congress has provided some jurisdictional basis for doing so.
As I’ve elsewhere elaborated, federal law clearly makes it a crime to attempt to assassinate a president, a president-elect or a presidential candidate who has apparently prevailed in the election (i.e., one who appears to have won the majority of state electoral votes but whose victory has not yet been ratified by Congress).
But the relevant statute does not cover major party candidates for president prior to the election.
Similarly, federal law provides for murder and attempted murder charges to be brought when the victim is a federal officer or employee, a visiting foreign dignitary, or a member of their families.
But again, thosestatutes don’t cover candidates for the presidency.
I suspect this is why the feds rushed to charge firearms offenses.
These, undoubtedly, are crimes over which the federal government has jurisdiction, provided that there is evidence that the gun in question has traveled in interstate commerce.
The feds were quick to point out that the gun allegedly recovered from Routh is not manufactured in Florida, creating the inference of interstate shipment.
That is fine as far as it goes. Criminals who attempt to influence elections by violent means should be hit hard with the full array of federal and state crimes.
But that said, this is an attempted murder case. Florida has the simplest criminal laws for that, and thus the best chance of prevailing at trial on the most fitting charges.
And with the Biden-Harris DOJ’s record of claiming it should not participate directly in cases involving Trump that could influence the election, federal prosecutors should make way for their state counterparts to bring the first case against the would-be assassin.
Andrew C. McCarthy is a former federal prosecutor.