In a directive late Tuesday, the acting deputy attorney general, Emil Bove, instructed the Department of Justice to launch criminal investigations into state and local officials whose policies do not adhere to the Trump administration’s federal policies with Immigration and Customs Enforcement, an elaborate “scare” tactic foreshadowed late in President Trump’s first term.
The memo, issued by Bove, previously Trump’s criminal defense lawyer, warned that state and local officials who do not comply with ICE would be subject to investigation and potential criminal prosecution, citing the Supremacy Clause of the Constitution and threats to “public safety and national security.”
“The Supremacy Clause and other authorities require state and local actors to comply with the Executive branch’s immigration enforcement initiatives. Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands and requests,” the memo reads.
U.S. attorneys will, under this directive, be responsible for investigating alleged non-cooperation and referring state and local officials for “potential prosecution,” with the memo referring to harboring an undocumented immigrant, refusing to disclose information about someone's immigration status and conspiracy as potential charges that official could face.
According to the memo, a newly established “Sanctuary Cities Enforcement Working Group” in the Justice Department will be responsible for flagging state and local laws and policies that do not adhere to the Trump administration’s preferred policies and taking legal action “to challenge such laws.”
The memo echos a plan described by the former attorney general, Bill Barr, in a 2020 speech where he indicated that the Justice Department was in the process of reviewing “the practices, policies, and laws of other jurisdictions across the country” including a review of whether jurisdictions where “complying with our criminal laws, in particular the criminal statute that prohibits the harboring or shielding of aliens in the United States.”
Trump’s homeland security advisor Stephen Miller's organization, America First Legal, also attempted to lean on state and local authorities earlier this week by sending letters notifying them that “[y]ou and your subordinates could potentially face up to 20 years in prison” and invoking potential racketeering charges if they do not go along with the president's immigration plans.
Such investigations and prosecutions against state and local officials would, if followed through on, see the DOJ attempt to press charges against officials around the country, from New York to Louisiana to Nebraska.
However, Matt Cameron, an immigration attorney at Cameron Micheroni and Silvia, told Salon he's skeptical it will come to that. “This is all just to scare them," he said, describing directives to cooperate with ICE as essentially an unfunded mandate.
“There’s a good reason that they might not want to do ICE's enforcement: they want the trust of their community," Camerson said. "They want to be able to enforce the law in their community without the federal government. I can’t think of any other field in which conservatives expect the states to do the federal government’s business.”
Cameron said that, in his opinion, harboring charges probably wouldn’t hold up in court in most instances because federal law does not require jurisdictions to assist ICE.
“All of these things are essentially ICE asking for favors and you can’t prosecute somebody for refusing to do you a favor,” Cameron said.
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This is an issue Barr noted in his 2020 speech. “While federal law does not require that 'sanctuary jurisdictions' actively assist with federal immigration enforcement, it does prohibit them from interfering with our enforcement efforts," he said.'
According to Cameron, this directive from the DOJ is probably an attempt by the Trump administration to intimidate state and local authorities into dedicating significant resources towards assisting ICE, something ICE needs because it lacks the resources necessary to carry out Trump’s mass deportation agenda, at least without an act of Congress.
“They want every available resource because the truth is that ICE does not have anywhere near the resources they would need to do this,” Cameron said. “They want people to believe that they can show up anywhere at any time.”
Kermit Roosevelt, a professor of law at the University of Pennsylvania Carey Law School, told Salon that while “obstruction of federal functions is probably a crime," Trump's order runs up against issues of what is and is not considered obstruction versus declining to enforce federal laws on behalf of another enforcement agency.
“The limit that this order is running up against is the principle, announced by the Supreme Court in Printz v. United States, that state and local officials can’t be required to enforce federal law. So the line-drawing question is going to be distinguishing between requiring state officials to comply with federal law, which is okay, and requiring them to enforce it, which is not,” Roosevelt told Salon.
This ties into a common misunderstanding of what sanctuary jurisdictions are and what they are not. “Sanctuary jurisdiction” is not a formal category but rather a name given to a collection of jurisdictions that have a variety of policies in terms of performing enforcement actions on ICE’s behalf.
Sanctuary jurisdictions do not hide immigrants from ICE or prevent ICE from operating in the jurisdiction. Rather, sanctuary jurisdiction policies play out in the context of detention periods for people brought into police custody and what sort of notification is or is not sent to ICE. A sanctuary jurisdiction may choose not to notify ICE when an undocumented immigrant is released from jail, or they may notify ICE but not hold them on behalf of ICE.
Roosevelt noted that even if the Justice Department successfully challenged state and local laws regarding notifying ICE, enforcing a state law that was later struck down would not normally be considered a crime.
“To the extent that there’s a state law that frustrates the objective of federal law, that would probably be preempted, but acting in compliance with a state law that’s preempted is not itself a federal crime—the conduct would have to fall under some other federal prohibition,” Roosevelt said.
Some law enforcement officials, such as Philadelphia's Democratic district attorney, Larry Krasner, have indicated that they won't bend under this pressure from the Justice Department and will continue abiding by local sanctuary measures, The Philadelphia Inquirer reported.
"My office is a law enforcement entity. We are going to follow the Constitution and uphold the law. We are under no obligation to do things that are illegal … or simply on Donald Trump’s fascist wish list, where he has no authority to compel our conduct,” Krasner said.
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