Legal experts question ‘highly unusual’ DOJ probe of Minnesota officials

Several legal experts say they haven’t seen any evidence to support the allegation that several Minnesota officials obstructed recent federal immigration enforcement as members of the Trump administration have suggested.

Federal prosecutors last week delivered subpoenas to the offices of Gov. Tim Walz, the mayors of Minneapolis and St. Paul, and other officials, as the Justice Department seeks records for violations of unspecified federal laws during the intense immigration enforcement crackdown in the state.

The subpoenas are related to whether the state and local officials hindered the federal enforcement through public statements they’ve made, according to the Associated Press, which reported the investigation is focused on the potential violation of a conspiracy statute.

Minnesota officials have characterized the subpoenas as “political theater,” intimidation tactics and an attack on their First Amendment rights.

“Going on TV and saying ICE is violating constitutional rights of citizens and noncitizens, that is not impeding federal immigration,” said Jill Hasday, a professor at the University of Minnesota’s Law School. “That is exercising First Amendment freedoms.

“I haven’t seen any evidence where they are actually impeding federal immigration enforcement.”

Hasday called the Justice Department’s probe of local officials “highly unusual,” a sentiment echoed by several constitutional law experts who spoke with the Minnesota Star Tribune.

Many Republicans have criticized the Minnesota officials for those statements, although after Pretti’s killing, President Donald Trump went further, accusing Walz and Frey of “inciting Insurrection” in a social media post that cited “their pompous, dangerous, and arrogant rhetoric.”

The Justice Department has not elaborated on its investigation to the Star Tribune. But the content of the subpoenas — legal orders to testify or produce documents related to a potential investigation — offer clearer insight into what federal prosecutors are seeking.

The subpoena issued to Frey’s office, which it shared, requires testimony before a grand jury on Feb. 3. It also requires the office to produce records, including documents related to the city’s cooperation with or refusal to aid immigration enforcement, refusal to comply with detainers and hindering, doxxing, or surveilling immigration officers.

“Issuing subpoenas is an aggressive move,” Hasday said.

In 2018, she said, the Trump administration threatened to subpoena local officials over sanctuary city policies, making similar arguments about interfering with federal authorities. It ultimately did not carry through with the threat.

Peter Larsen, an assistant professor at Mitchell Hamline School of Law, said such subpoenas “tend to be pretty exploratory in nature.”

“Grand jury processes themselves are very deferential, so to get a subpoena for this, you don’t have to prove that a crime occurred,” he said. “You don’t even have to really show good cause that a crime occurred.

“You only really need to show that you’re seeking materials that are relevant to a possible investigation.”

Ultimately, grand juries can decide to recommend charges or not.

The subpoena issued to Frey’s office also asks for emails, text messages, voice recordings and other communication related to federal immigration enforcement.

“They’re looking for the needle in the haystack,” said Painter, an outspoken critic of Trump. “They’re probably trying to look for some hothead who said something really stupid.

“They’re going to go through thousands of emails to find something. I’d be extremely surprised if they found anything that would be grounds for any type of serious criminal investigation.”

However, he said, “Could they find something potentially embarrassing? Yes.”

Mary McCord, a Georgetown University law professor and former federal prosecutor and Justice Department official, said the subpoena of Frey’s office suggests the government is “criminally investigating state and local officials for doing what they’re entitled do to, which is not voluntarily cooperate with ICE or DHS, and instead do just what is required by law.”

Not cooperating with ICE beyond what is required by law would not amount to impeding federal immigration enforcement, she said.

“Impeding would have to be something more than that. Impeding would require some sort of force,” she said. “I have not seen even a suggestion that these officials have engaged in force or even incited others to engage in force. They’ve been telling people to be peaceful.”

Federal subpoenas of local officials or their offices usually stem from corruption scandals, misappropriated federal funds or criminal activities, University of Minnesota Law School professor Myron Orfield said — not policy disagreement.

Several constitutional law professors struggled to find a historic example of local officials being investigated over allegations of interfering with federal law enforcement.

Orfield said the closest example he can think of is the massive resistance by several Southern governors to federal court-ordered integration during the civil rights movement of the 1950s and ’60s.

“Many governors opposed federal court orders on integration and used very strong language, called the federal government communists and everything you can think of,” Orfield said. “And they were never investigated” for their political views or statements.

The suspects were charged with conspiring to deprive the three men of their civil rights (loosely, the basis of the movie “Mississippi Burning.”) At the time, the state declined to press murder charges.

“That’s the comparator we have, really. We really don’t see this happening in other times and places,” Larsen said.

At the same time, he said, this is different.

“We’re talking about criminal obstruction,” he said. “With criminal obstruction, typically that’s a much higher bar and we don’t see that in modern history.”

Ultimately, Larsen said, a grand jury could recommend issuing charges, or it could reject the prosecutors’ argument and decline charges. Such was the case in December when a grand jury declined to federally indict New York Attorney General Leticia James.