Can Kyle Rittenhouse Survive the Feds?

When Kyle Rittenhouse was whisked away from the Kenosha County Courthouse on Nov. 19 a free man, the calls for his federal prosecution started. Consider that police who violate the civil rights of those they are sworn to protect may face federal charges. When those cops aren't prosecuted at lower levels, or those prosecutions fail, the feds might try them, as they famously did the LAPD cops who beat Rodney King. But for cases with a fact pattern like that of Rittenhouse, who had no government powers, killing without special circumstances, such federal prosecution would be novel and unsuccessful.

Double Jeopardy – No Problem

Current precedent permits trying Rittenhouse under federal charges arising from the events of his self-defense shootings. Even though the Fifth Amendment prohibits double jeopardy, the Supreme Court says it's okay so long as the prosecuting authorities are different. The high court last addressed the issue in 2019's Gamble v. United States, when it ruled 7-2 that state and federal prosecutions for the same acts do not violate the double-jeopardy prohibition. But Justice Ruth Bader Ginsburg explained why the court got it wrong, writing:

“In our ‘compound republic,’ the division of authority between the United States and the States was meant to operate as ‘a double security [for] the rights of the people.’ The separate-sovereigns doctrine, however, scarcely shores up people's rights. Instead, it invokes federalism to withhold liberty.

“It is the doctrine's premise that each government has — and must be allowed to vindicate — a distinct interest in enforcing its own criminal laws. That is a peculiar way to look at the Double Jeopardy Clause, which by its terms safeguards the ‘person’ and restrains the government.”

In that case, the feds had the advantage of allegations that Terance Gamble violated federal law as a felon in possession of a firearm. The same is not true for Rittenhouse. The ill-informed can shout that he "crossed state lines with an assault rifle" all they want; those allegations are both irrelevant and untrue. Prosecutors need a federal crime alleged to get him into federal court. If there were evidence Rittenhouse killed in violation of a hate-crime statute, then federal charges could be brought. The same is true if he were alleged to have sold the gun or used counterfeit money to buy it. Those are all federal crimes, and none apply to Rittenhouse.

The Chairman Objects

In his tweet pleading for federal action on Rittenhouse, House Judiciary Committee Chairman Jerrold Nadler (D-NY) said:

“This heartbreaking verdict is a miscarriage of justice and sets a dangerous precedent that justifies federal review by DOJ. Justice cannot tolerate armed persons crossing state lines looking for trouble while people engage in First Amendment-protected protest.”

Nadler makes two claims that he says justify a federal review: one, there was a miscarriage of justice; two, this case has set a dangerous precedent. Nadler has a law degree from Fordham, where he undoubtedly learned how precedent works, and he must know this case sets none. That's because no jury trial results in a legal precedent; a precedent refers only to appellate decisions, which are then binding on the courts below.

So, that leaves the verdict being a miscarriage of justice. We're left to wonder why, however, because Nadler doesn't say. If he gets his news from The New York Times/CNN/MSNBC and doesn't allow himself to hear other voices, he probably thinks all people of good conscience must understand the miscarriage and don't need it stated. That understanding, likely based on falsehoods repeated early and often about the case, from how Rittenhouse got to Kenosha (his mom didn't drop him off), to where the gun was (it never left Wisconsin), to what happened after the shootings (Rittenhouse tried to turn himself in to police immediately).

There's another factor at play that could make federal prosecution far less likely in this case than any other one we may be familiar with: Almost every bit of evidence supports the defense. Contrary to what Nadler may have seen in legacy media "reporting" on the story, just about every major piece of evidence and testimony have helped Rittenhouse, bolstered his claims of self-defense, and weakened any credible prosecution claim against him. Worse, for any U.S. attorney who would put his name to the complaint, a future federal trial would feature some notable handicaps for the prosecution not present at the state level.

The Sequel Is Never as Good

Kenosha prosecutors were able to keep Joshua Ziminski, a likely friend of one of the men Rittenhouse shot and killed, off the stand by holding open charges against him. Federal prosecutors won't be able to do that. They will also have a tougher time convincing a judge that the aerial footage they took may be selectively introduced because they somehow lost the originals. The defense will now have the high-resolution drone footage, too. Finally, it looks like "jump-kick man," who was filmed kicking Rittenhouse in the head, has been identified and would be a dream witness for the defense. Maurice Freeland's wife Melody is quoted as saying, "He was talking about a group of men and guys, saying he was going to kill those white f----ers, and then I'm going to kill that white boy."

Federal charges are not impossible, but the evidence suggests they would meet the same fate as the state ones, and it would be a much easier lift for the defense.

~ Read more from Scott D. Cosenza.