Attorney General Eric Holder strode into St. Louis County today with a much larger agenda than investigating Michael Brown’s killing. Whatever comes of his intervention into the case, Holder’s aggressive posture in Ferguson points to what many Washington observers understand to be his most deeply held goal at the Justice Department: rebuilding its beleaguered Civil Rights Division and restoring its pre-Bush relevance. Publicly, much of Holder’s tenure has instead been marked by his legal defense of the Obama administration’s national security policies. But as an unnamed Justice Department official told the Los Angeles Times today, “The attorney general has always been about race.”
In Ferguson, he steps into a treacherous political landscape. St. Louis County prosecutors began presenting evidence to a grand jury this morning, a process that County Prosecutor Robert McCulloch said will take until “the middle of October.” McCulloch is a Republican who’s held the office for 23 years, and his history with grand juries is checkered. In 2001, a St. Louis Post-Dispatch investigation caught him lying about damning testimony submitted to a grand jury in another fatal police shooting. McCulloch’s history, and his overall political posture as a bullish supporter of cops, have prompted calls for his removal from the case. That was a legal impossibility until Democratic Gov. Jay Nixon declared a state of emergency, which among other things gives him the power to remove McCoulloch. But the two politicians have been open enemies for far too long for Nixon to move so decisively—particularly given Nixon’s calculations as a moderate Democrat in a conservative state who is none-too-subtly positioning himself for a vice presidential nod in 2016. All of which is to say, there’s not a lot of hope for a clean, clear criminal case against Darren Wilson, at least without something forcing McCulloch to stand down on his own.
But even with a more fair-minded prosecutor, the deck is consistently stacked in favor of law enforcement when police violence goes on trial. Julianne Hing reported on this hard reality for Colorlines as she covered the trial of Oakland transit cop Johannes Mehserle and the post-Katrina violence in New Orleans. A criminal case is just really tough to make. Here’s how Julianne explained it:
The challenge is that the legal bar for convicting cops of murder or wrongdoing is higher than for civilians. Cops have the benefit of qualified immunity, which allows them not to be held individually responsible for their actions, as long as they can establish that another competent and informed officer would have acted similarly. That’s a problem, for sure, if police brutality and racialized attacks are symptoms of a systemic disease.
So it will be extraordinary in the history of our legal system if Wilson is convicted of murdering Michael Brown. That’s something close observers know, and it’s surely one reason why the Justice Department is already in Ferguson looking for a civil rights case. Typically, that sort of inquiry would come only after a local, criminal case concludes; Holder has sped up the timeline. That’s significant: It means that as the local case takes its predictably disappointing course, particularly if led by McCulloch, everyone will also be able to see a federal inquiry in progress. That may turn out to be more symbolic than anything, but symbolism matters, too.
Holder reportedly saw the national import of Brown’s killing right away and began rallying his staff within hours. That’s not surprising, since he’s opened at least 20 previous civil rights investigations into police misconduct, according to the New York Times. Throughout President Obama’s time in office, Holder’s been a gadfly prodding racial justice onto the agenda of a reluctant White House. He has been most visibly aggressive fighting voting rights challenges, reaching down into local politics with spirited legal actions during each election cycle. But he’s also pushed the administration’s political boundaries on sentencing reform and, importantly, on a simple willingness to name publicly the beast of racism.
Lurking behind all of this is the larger mission that Holder set for himself in 2009. The Bush era was not kind to the Justice Department’s civil rights work. The Civil Rights Division was a focal point for the Bush administration’s most far right members. They transformed it from a watchdog of local wrongdoing into a place to exert political leverage over state attorney generals and begin gaming local level voting processes. Over half of the staff quit or got reassigned when Bush came into office. Up until 2006, the only voting rights inquiry they’d opened was to investigate black politicians in a small Mississippi town, charging that they’d denied the rights of white voters. The sort of openly racist emails that became the hallmark of the tea party right were back then already circulating freely among the federal leadership tasked with protecting the nation’s civil rights. Holder’s confirmation hearings were dominated by discussion of this perversity and of the disaster Bush’s people had made of the department’s civil rights work—and he vowed to fix it.
So Holder’s actions in Michael Brown’s killing thus far suggest he’s identified Ferguson as a place to show off a newly restored Civil Rights Division. He’s dispatched 40 FBI agents, conducted an independent autopsy and sent in the division’s “most experienced prosecutors,” he wrote in a op-ed in today’s Post-Dispatch. “The full resources of the Department of Justice have been committed to the investigation into Michael Brown’s death,” he declared. The civil rights sheriff, he seemed to be declaring, is back in town.