The Department of Justice should step aside in the George Floyd case

In the wake of the horrific killing of George Floyd, some have called for the Department of Justice (DOJ) to lead a prosecution of the killing. In normal circumstances, with a normal federal administration, I would fully support this request. In fact, I was an attorney in and served as a supervisor of a unit in the criminal section of the Civil Rights Division of the Department of Justice that usually leads investigations into constitutional violations by law enforcement. But given all that I have seen over the past three years, I cannot think of a good reason why DOJ needs to lead anything in this case.

President Donald Trump, Attorney General William Barr and former Attorney General Jeff Sessions have done nothing to indicate that they understand the issues that led to the killing or to the demands for change and expressions of frustration since.

President Trump encouraged the use of excessive force by law enforcement officers when he told officers that they should not be “too nice” and should “take the hand away” so arrestees’ heads could be pushed against the hoods of police cars. Clearly oblivious to the irony, with his late-night tweet threatening to have “the Military” shoot people who are looting in Minneapolis, Trump is only calling for the same disproportionate law enforcement violence that fuels the protests. 

Earlier this month, Trump praised the election of Chicago Police Officer John Catanzara as president of its police union, despite Catanzara having been stripped of his police powers and his record of being one of the department’s most frequently disciplined officers. During the 2016 campaign, the Fraternal Order of Police (FOP), known for pushing back against any police accountability, praised Trump for “understand[ing] and support[ing] our priorities.” 

Significantly, as the chances increase that a Trump-appointed judge would preside over a federal case, Trump has appointed judges who are known for not holding law enforcement officers accountable. And it cannot be ignored that any federal investigation would be led by the FBI, which Trump regularly denigrates as “scum.” If he does not trust them, why should others?

Through rhetoric and action, Trump’s attorneys general have worked hard to dismantle every attempt by the Obama administration to make law enforcement fairer. While President Obama’s administration worked hard through its Task Force on 21^st Century Policing and civil rights consent decrees to improve policing, with a particular eye toward addressing excessive force and racial discrimination, Attorney General Sessions significantly weakened both.

Floyd was killed during an arrest for alleged forgery — certainly not a death-eligible crime. But when local district attorneys have attempted to move police away from spending enormous time and resources on low-level offenses and the racial inequality of enforcement, Barr and his cronies pejoratively refer to them as “social justice reformers.”

While communities call out for help from discrimination and brutality, Barr threatens that “If communities don’t give that support and respect, they might find themselves without the police protection they need.” Barr is trying to quickly release a report from his improperly-secretive commission on law enforcement and the administration of justice, which was largely created to please the FOP and reverse any movement toward police reform. Barr and Sessions have done nothing but embolden the excesses that resulted in Floyd’s killing. And while protests have exploded, Trump’s DOJ has worked to gut the Community Relations Service, the office that since the civil rights era has worked to help keep the peace.

Why should anyone want Barr, who overruled the Civil Rights Division’s desire to prosecute the officers in the Eric Garner case, to now prosecute the Floyd case? It would require use of the same statute that Barr’s DOJ found too difficult to use when an officer prevented Garner from breathing because it required “willfulness” from officers. 

While there have been promises of expediting the federal investigation, on the occasions when DOJ opens these cases, it usually takes years to file charges. Instead of complicating a homicide investigation and allowing this administration to pretend that it cares about issues of police misconduct and racial discrimination, DOJ should step aside and allow the local community to heal with local officials leading any prosecutive effort to seek justice for George Floyd’s family and friends.

Roy L. Austin, Jr. is a partner at Harris, Wiltshire & Grannis, LLP and served as an assistant United States attorney in Washington, D.C., and a trial attorney and deputy assistant attorney general in the Civil Rights Division of the Department of Justice.