Federal prosecutors: DOJ investigation of Walz, Frey is shameful

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On Jan. 20, news broke of a Department of Justice (DOJ) investigation purportedly exploring whether elected Minnesota officials obstructed or impeded federal law enforcement officers conducting aggressive and sweeping immigration raids in the Minneapolis-St. Paul area. As federal prosecutors who spent decades enforcing federal law here in Minnesota, we believe these intimidation tactics are corrupt and improper, a profound misuse of the justice system.

The targeted officials, including Gov. Tim Walz, Minneapolis Mayor Jacob Frey, Minnesota Attorney General Keith Ellison, St. Paul Mayor Kaohly Her and Hennepin County prosecutor Mary Moriarty, share a common nexus: They publicly opposed the illegal tactics of federal immigration agents and denounced the tragic shooting of Renee Good by Immigration and Customs Enforcement (ICE).

The federal investigation purportedly relies on a law that prohibits conspiracies to use “force, intimidation, or threat” to prevent federal officers from discharging their duties. However, no public evidence indicates that any of these officials violated that law. What’s more, the investigation appears to be based on actions or statements that fit squarely within our Constitution’s First Amendment protections.

Let’s be clear: Publicly opposing federal policy does not violate the law. The First Amendment provides its strongest protection to “core political speech,” which includes the right of elected officials to criticize government policy and advocate for their constituents. The types of speech that can be criminalized as “force, intimidation, or threat” are generally limited to incitement of immediate unlawful action, true threats of force, violence or other harmful action, and false statements that amount to defamation. The statements and actions at issue here — expressions of opinion, correct statements about the law and allegations in legal proceedings — aren’t any of those things.

As former prosecutors, we know it’s extremely unlikely that these investigations will result in successful prosecutions. The DOJ attorneys directing and participating in this investigation should and likely do know that as well.

The idea that these investigations are retaliatory is not speculation. Weeks ago, President Donald Trump said the quiet part out loud: “FEAR NOT, GREAT PEOPLE OF MINNESOTA, THE DAY OF RECKONING & RETRIBUTION IS COMING!” This was in direct response to Minnesota officials criticizing DHS agents for shooting Renee Good and engaging in other pervasive unlawful and violent conduct.

Pursuing criminal investigations for political and retaliatory motives and making statements that run roughshod over the constitutional rights of defendants is anathema to generations of federal prosecutors like us who were trained to follow and uphold the Justice Department’s ethical standards defined in the Principles of Federal Prosecution. These principles are not bureaucratic suggestions; they effectuate and enforce the rule of law embodied in our Constitution.

These investigations reveal the continuing corruption of a federal law enforcement institution established to further justice. As former prosecutors, we’re trained to look at the evidence before us. And here, it all points to the same conclusion: This is a politically motivated abuse of power meant to intimidate, not a serious criminal investigation in pursuit of the truth and actual accountability for wrongdoing.

This weekend’s tragic killing of another Minnesotan, Alex Pretti, by federal agents amplifies each of these concerns. When the federal government itself engages in inappropriate and unlawful behavior, our state and local leaders have an obligation to speak out on our behalf. The president and other federal officials clearly dislike public opposition — but the First Amendment, not their political desires, is controlling here. And few principles are more fundamental in America than the freedom of each of us — including those elected to represent our interests — to express peaceful, nonviolent and truthful criticism of the government. By continuing to exercise these fundamental rights, our state and local leaders can reveal these intimidating tactics for what they are: a corrupt erosion of our democracy’s longstanding commitment to a government dedicated to ruling by law and not power.