Now that “person of interest” Luigi Mangione has been apprehended in the murder of UnitedHealthcare CEO Brian Thompson outside a Manhattan hotel on Wednesday morning, we have a dilemma — or, at least, I do.
Can Alvin Bragg — the paragon progressive prosecutor who seems to regard the streets of New York as if popped out of Howard Zinn’s revisionist American history textbook — be trusted to prosecute a radical leftist for carrying out a “direct action” against a capitalist oppressor?
If I were the United States attorney in my old haunts, the Southern District of New York (SDNY) in Manhattan, I’d be looking to charge the suspect federally.
My default setting is that murder is a state crime and ought to be prosecuted by state authorities. State and municipal prosecutors and cops — here, Bragg and the NYPD — are responsible for the public interest that is most at stake: order and security within the city and borough. They also have the most straightforward criminal statutes — in this instance, state homicide laws — to address this violent street crime with the appropriate degree of severity.
By contrast, federal prosecutors do not have jurisdiction over violent crime, including murder, unless Congress has codified an offense based on some federal interest. The classic federal interest — protection of federal officials from being assassinated while performing their official duties — does not apply to Brian Thompson’s murder. Besides attacks on federal officials and property, the usual federal interest that Congress invokes in the criminal law is interstate commerce.
On the rationale that the activities of organized crime groups, narcotics-trafficking conspiracies, and foreign terrorist organizations, to take three prominent examples, affect interstate (and often international) commerce, the Justice Department has jurisdiction to prosecute murders committed in furtherance of those enterprises. The cases can be tougher than state prosecutions because they are not as straightforward: A jury sitting on a murder case can be forgiven for wondering why on earth, in a case about killing, they are being asked to conclude beyond a reasonable doubt that, somehow, the killing affected interstate commerce.
Nevertheless, the courts have interpreted the required impact on interstate commerce to be so slight or theoretical that the proof element is barely a bump in the road for federal prosecutors. It is also probably human nature that, it they are convinced that a defendant committed a brutal murder, jurors will be disinclined to acquit him on the more technical ground that there was no effect on commerce. Moreover, it’s only in rare cases that this technicality is much in dispute — the operations of mafia families, drug trafficking networks, and terrorist organizations patently exploit interstate travel and communications facilities and affect interstate commerce.
At this premature stage, Mangione hasn’t even been charged, so we are in no position to speculate about whether he has ties to some radical organization whose activities affect commerce, much less whether the cold-blooded shooting in this case was part of a conspiracy as opposed to a one-off carried out by a lunatic. That all has to be investigated.
It would not surprise me, though, if President-elect Trump’s nominees to run the Justice Department, the SDNY, and the FBI are taking a hard look at the Travel Act, an old standby in organized-crime prosecutions codified in Section 1952 of the federal penal code. The Travel Act makes it a crime to, among other things, travel or use facilities in interstate commerce in order to commit a crime of violence, including murder, that furthers some other unlawful activity. If death results, the potential penalty is life imprisonment. (The statute is layered and complicated because Congress was mindful to avoid federalizing every violent street crime.)
If Mangione is the assailant (and to repeat, he has not been charged as of this writing), it would seem simple enough to allege that he traveled in interstate commerce to carry out a murder. The question for federal prosecutors and the FBI would be whether the murder furthered some other unlawful activity — e.g., some organized scheme to extort health insurers to change their practices.
It’s a harder case to make than a simple, connect-the-dots state murder case would be. But — as we’ve seen this year in the DA’s farcical prosecution of (now) President-elect Trump and the cynical, racialized prosecution of Daniel Penny (see our editorial following Penny’s acquittal today) — Bragg is so transparently political and ideological, I’d be very concerned about how he’d approach the Thompson murder.
One other advantage the feds have: New York’s doctrine of equitable double jeopardy.
In most states, when the feds and the state authorities both have jurisdiction over a violent crime, they can both prosecute it. In our federalist system, the federal government and the states are both sovereign. Under the dual-sovereignty doctrine, there is no double jeopardy protection from a prosecution by one sovereign after another sovereign has already prosecuted the same defendant for the same crime.
In New York, however, if the federal government brings a case, state law precludes state authorities from prosecuting state offenses arising out of the same criminal transaction (there are some exceptions, but they are narrow and tough for state prosecutors to exploit).
Hence, if the Justice Department were to try to bring a murder case on a Travel Act theory, or something like it, federal prosecutors have to get it right. If they move in to take this case and they lose it in the end, state prosecutors would probably have no recourse — regarding a murder on the streets of Manhattan captured on video, against a suspect who appears to be buried in incriminating evidence.
The feds could keep their powder dry, watch how Bragg handles things, and proceed if he does something outrageous. On the other hand, if they’re going to move, the feds will want to do so now, while they might still have a chance to control the course of the investigation.
Tough call.