"[W]e have an open investigation into the death of Trayvon Martin," said a DOJ spokesperson a day after the verdict in Florida was announced. "The Department of Justice's Criminal Section of the Civil Rights Division, the United States Attorney's Office for the Middle District of Florida, and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial. Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction, and whether federal prosecution is appropriate in accordance with the Department's policy governing successive federal prosecution following a state trial."
Zimmerman has been acquitted of second-degree murder and manslaughter in Florida, and the Constitution's double jeopardy clause protects him from being charged and tried for those crimes again. But the federal government is a separate sovereign and would be charging Zimmerman with violating different laws.
If the DOJ believes Zimmerman violated any of these statutes, it'll probably be one Congress passed nearly four years ago: the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. Both men were murdered in notorious hate crimes. Shepard was gay; Byrd was black.
That law "makes it a crime to willfully inflict bodily injury because of someone's race," says William Yeomans, a law and government fellow at American University who litigated civil rights cases in federal courts over more than two decades as a DOJ attorney.
The statute is written more broadly than a similar law on the books, which only allows for prosecution in the event that the victim was engaged in one of several federally protected activities. But that doesn't alter the basic reality that bedevils many hate crime investigations.
"[S]howing that someone acted with racial motivations is always difficult because it's always hard to prove beyond a reasonable doubt a defendant's state of mind," Yeomans said.
Notwithstanding this serious challenge, some conservatives are already geared up for the possibility that the FBI will find evidence of racial intent, or that the criminal section of the DOJ's Civil Rights Division will pursue charges anyhow, or worse yet that they'll find no such evidence but that Holder will simply overrule both of them.
"[The NAACP has] teamed up with the New Black Panthers now, trying to get the Justice Department to pursue criminal charges against George Zimmerman," J. Christian Adams, a former DOJ civil rights lawyer who has promoted the view that Holder has "racialized" the department, said on Fox News after the verdict this weekend. "The New Black Panthers were the spark behind this entire Zimmerman investigation. Nothing was going to happen until they went down there and started threatening people. The Justice Department responded to their demands. The local prosecutors responded. We should not be allowing the New Black Panthers and the radical race groups to be deciding what happens to George Zimmerman. ... This is part of a radical racial agenda that Eric Holder has implemented since the day he took office."
Nonsense, says Yeomans. "They are going to make a determination that is completely uninfluenced by a public outcry. It would be extraordinary if that was not the course that the department follows and I'm sure it will be."
If anything, it's the people who want to see Zimmerman tried and convicted who ought to brace themselves for disappointment.
"I'm not in a position to say that in this case it can't be done," Yeoman said. "But these are difficult cases. People need to keep their expectations realistic. As with any prosecution, they have to be satisfied that there's sufficient evidence and thus a good faith belief that they can secure a conviction. The public has to have realistic expectations of what the federal government can do here because its options are limited."