POSSIBLE BASES OF JURISDICTION FOR THE DEPARTMENT OF
TO INVESTIGATE MATTERS RELATING TO THE ASSASSINATION OF
MARTIN LUTHER KING, JR.
The Department of Justice may conduct an investigation relating to the
assassination of Martin Luther King, Jr., to investigate the commission of federal
crimes for which the applicable statute of limitations has run, in order to
establish the facts of the crime, independent of whether such facts may lead
to a prosecution.
The Department also has authority, under 28 U.S.C. § 533(3), to investigate the role of the Department or the Federal Bureau of Investigation in the original investigation of the King assassination. Such an investigation under § 533(3) could include a re-investigation of the facts surrounding the assassination itself in order to assess the conduct of the Bureau's original investigation and determine the accuracy and completeness of its findings.
April 20, 1998
MEMORANDUM OPINION FOR THE PRINCIPAL ASSOCIATE
DEPUTY ATTORNEY GENERAL
In connection with the Attorney General's consideration of a request from Coretta Scott King that the President or the Attorney General establish a commission
to examine matters relating to the assassination of Martin Luther King, Jr., you have asked us whether there is legal authority for the Department of Justice to
conduct an investigation relating to the assassination of Dr. King and the conviction of James Earl Ray for that murder.
First, we conclude that in addition to investigating federal crimes that may be currently prosecuted, the Department of Justice may also investigate the
commission of federal crimes for
which the applicable statute of limitations has run, in order to establish the facts of the crime, independent of whether such facts may lead to a prosecution.
Second, we also conclude that the Department's authority to investigate official matters under the control of the Department, 28 U.S.C. § 533(3) (1994), provides an additional and
independent basis for investigating the role of the Department or the Federal Bureau of Investigation in the original investigation of the King assassination. Such
an investigation under § 533(3) could include a re-investigation of the facts surrounding the assassination itself in order to assess the conduct of the Bureau's
original investigation and determine the accuracy and completeness of its findings.
I. Detection of Federal Crimes
The Attorney General is authorized
to appoint officials to "detect and prosecute crimes against the United States."
28 U.S.C. § 533(1). Thus, as a preliminary matter, it is fundamental that the
Attorney General may conduct an investigation to "detect and prosecute" any
federal crimes that may have been committed in connection with the King assassination.
See generally Memorandum for the Director of the Federal Bureau of Investigation,
from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel,
Re: FBI Cooperation with Local Authorities at 1 (Nov. 9, 1977) (so long
as there is a "legitimate basis for the view that the investigation of the underlying
conduct may unearth violations of federal law, we believe the FBI is authorized
to proceed with the investigation"). In this regard, we understand that the
Criminal and Civil Rights Divisions are reviewing the relevant facts to determine
whether there are grounds on which to conclude that a federal crime may have
been committed in connection with the King assassination and whether such a
crime may be currently prosecuted.
Even in circumstances where the
applicable statute of limitations may have run and federal criminal violators
may not be prosecuted, however, this Office has previously concluded that §
533(1) also provides authority to conduct an investigation the only purpose
of which is to "detect" the commission of a federal crime. Memorandum for Jack
W. Fuller, Special Assistant to the Attorney General, from Antonin Scalia, Assistant
Attorney General, Office of Legal Counsel, Re: Jurisdiction of the Department
of Justice to Investigate the Assassination of President Kennedy at 5 (July
28, 1976) ("Kennedy Assassination Opinion"). The Office of Legal Counsel reviewed
this issue in similar circumstances when the Department of Justice was considering
in 1976 whether it had authority to re-investigate the 1963 assassination of
President Kennedy, notwithstanding the strong possibility that the statute of
limitations might have run on any applicable federal crime. See generally
id. There, this Office concluded that "[n]othing in the language" of § 533(1)
precludes the Department from seeking to "'detect' crime when it cannot 'prosecute'
the violators." Id. at 5.
The mere fact that the statute of
limitations may have run does not "erase the crime itself." Id. Thus, in the
Kennedy Assassination Opinion, Assistant Attorney General Scalia concluded that
a criminal statute of limitations sets the outer limit of when it may be fair
or reasonable to try a defendant for a particular crime; it does not mark the
expiration of the federal interest in detecting and establishing the facts of
such a crime.(1) Kennedy Assassination Opinion
at 5, citing United States v. Marion, 404 U.S. 307, 322 (1971); Toussie
v. United States, 397 U.S. 112, 114-15 (1970); see also United States v.
MacDonald, 456 U.S. 1, 8 (1982); United States v. Podde, 105 F.3d
813, 820 (2d Cir. 1997); United States v. Starrett, 55 F.3d 1525, 1544
(11th Cir. 1995). Indeed, there may be "vital public interests" served by establishing
the facts surrounding the commission of a federal crime irrespective of whether
the crime can be prosecuted. Kennedy Assassination Opinion at 5.
Thus, this Office found that the
proposed departmental re-investigation of the Kennedy assassination might properly
"serve to set to rest serious public misgivings . . . and possible distortion"
regarding the manner or conclusions of the original investigation. Id.
The Opinion also observed that the proposed re-investigation of the Kennedy
assassination could be justified on the basis that it might "assist the Department
in preventing such crimes in the future." Id.
The interests recognized in the Kennedy Assassination Opinion appear to apply with equal force to a possible federal re-investigation of the King
assassination.(2) Accordingly, assuming that there are grounds on which to believe that a re-investigation of the King assassination might reveal a violation of
federal law, the Kennedy Assassination Opinion provides precedent for initiating a re-investigation notwithstanding the fact that the applicable statute of
limitations might have run.
II. Investigating "Official Matters" Within the Control
of the Department of Justice
A second and independent basis of authority for conducting the investigation in question may be found in 28 U.S.C. § 533(3), which authorizes the
Attorney General "to conduct such other investigations regarding official matters under the control of the Department of Justice and the Department of State as
may be directed by the Attorney General." This authority was also applied in the Kennedy Assassination Opinion.
Here, the Bureau's investigation
at the time of the King assassination constitutes an "official matter under
the control of the Department," and therefore is itself a basis for a current
investigation. See Kennedy Assassination Opinion at 7 (Bureau's initial
investigation of JFK assassination fell within scope of § 533(3) and provided
basis for re-investigation). As was the case when this Office reviewed this
issue in connection with a re-investigation of the assassination of President
Kennedy, "a new investigation of the assassination could be justified on the
ground that it is necessary, in light of subsequent public allegations, to review
and evaluate the FBI's performance" in the investigation. Id.
The public allegations giving rise
to the request for a re-examination of the facts surrounding the assassination
of Dr. King similarly relate to the conduct of the Bureau in that investigation
and whether the Bureau may possess relevant evidence bearing on the assassination
that has not yet been disclosed. See, e.g., Some Cases Never Close, L.A.
Times, Apr. 4, 1998, at B7 (editorial questioning whether the FBI may possess
additional information concerning a plot to assassinate Dr. King). Without necessarily
giving credence to these allegations, the Attorney General might nonetheless
wish to authorize an investigation to review and address them. If the Attorney
General elects to do so, § 533(3) provides her with the relevant authority.
Deputy Assistant Attorney General
Office of Legal Counsel
1. The Kennedy Assassination Opinion observed:
The central purpose of the [statute of limitations] is therefore served when prosecution is prevented. To be sure, the reputations of persons who may have been involved in the assassination attempt could be injured if the detailed results of the investigation were made public. But that is an interest protected by the general administrative policy of investigative secrecy, and not by the statue of limitations; and it might in some circumstances be outweighed by the public interest in the investigation, at least where the only reason for failure to bring a prosecution is the time bar.
Id. at 5.
2. We reiterate here the observation of Assistant Attorney General Scalia that we do not mean to suggest that these interests require an investigation. In our view these interests provide authority for such an investigation if the Attorney General determines that such an investigation is appropriate. See Kennedy Assassination Opinion at 5.