Can the governor and AG really take a case from a county attorney?

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The controversy over the charging of two Minnesota teens for the killing of Zaria McKeever is taking new turns as Gov. Tim Walz appoints Attorney General Keith Ellison as the new prosecutor in the case. This move came after the Hennepin County Attorney's Office declined the attorney general's request to hand over the case.

As an attorney and member of the legal community, I've watched these events closely and believe there are questions we should be asking about them.

First, does the governor have the authority to take the case and give it to the attorney general's office? The governor does have the authority, but only through a very specific process and one that may not have been followed here.

The Minnesota attorney general's authority to take over a Hennepin County prosecution without Hennepin County's consent is governed by two areas of law: Minnesota Statute Section 8.01 and the 1995 Minnesota Supreme Court decision in Graham v. Klumpp. In Klumpp, the court stated that two factors must be considered in whether an attorney general can take over a county case: (1) the governor requests in writing that the attorney general prosecute a person charged with an indictable offense; and (2) attend upon the grand jury and exercise the power of the county attorney. The court never delved further into the matter in that case because the assistant attorney general at the time, William F. Klumpp Jr., used a grand jury to prosecute the case. But the court left open the question of whether an attorney general can take over a county case and charge the person without using a grand jury.

Despite the Hennepin County Attorney's Office's public response calling this action to remove a case "unprecedented," we know it isn't. Recall that, as the Star Tribune reported on May 31, 2020, Walz announced that he was appointing Ellison to take over the Derek Chauvin prosecution and any others involving the death of George Floyd from the Hennepin County Attorney's Office. Shortly thereafter, the Hennepin County Attorney's Office publicly stated that it requested Attorney General Ellison's assistance.

We should be looking for the attorney general to prosecute the case by way of grand jury and indictment. The law is vague as to whether the attorney general can simply reissue a criminal complaint (or use the current one) against the adult defendant or juveniles in this case.

In the McKeever case, the Hennepin County Attorney's Office did not request the assistance of the attorney general because it would not remove itself from a case it believes is being handled properly. The situation is further complicated by the fact this prosecution was well underway when this intervention occurred; one of the juveniles has already entered a guilty plea. Whether we are talking about the events that ended Ms. McKeever's life and devastated her family or about Derek Chauvin, there must be adherence to the law.

In the important debate about the past and future handling of McKeever's tragic case, I raise a third question. From here, will the public perception be that "taking a case away" from a county prosecutor is easy or is a routine solution for dissatisfaction with a plea agreement? Unfortunately for McKeever's family, both this decision by the governor and the attorney general's publicly reported attempts to assume control of the prosecution deserve scrutiny that should have been applied in the Chauvin case as well.

Aside from the legal issues, there is another concern regarding the politicization of prosecutors taking cases from one another. In the future, if the attorney general and governor are Republicans, will they want to remove cases from elected Democrats running the county attorney's office? If the governor and attorney general do not follow the statute and the law, they create a precedent for the future that many — even they — should find problematic.