1109: What It Would Take to Rein in ICE

25:24But it does make it politically more complicated for Democrats to rush to his defense, I think, or anyone to rush to his defense. Not that that is warranted necessarily, but it makes the casualists a little bit more complicated. I mean, big picture here, like as we look at the state of Minnesota, right? I mean, what legal recourse does the state actually have here? And let me just drill down on that a little bit more and say, could in theory, because this is something that's been floated in multiple interviews I've heard with the mayor, Jacob Fry, if not the police chief, can the local police in Minneapolis go after ICE agents?

25:59Yes. Federal officers are not allowed to violate state and local criminal law. Now, prosecuting those officers is difficult because what happens is they argue as a defense that they were merely carrying out their federal duties. And when state law, a state criminal statute, conflicts with a federal statute authorizing an ICE officer to do A, B, or C, the federal law is going to win out. But that just means those cases come down to, was the ICE officer acting within the scope of their powers? Were they doing things that were reasonably necessary to carry out their responsibilities? I think from videos, it is clear they are going way beyond that.

26:46But that's just part of what makes those cases difficult is they are often litigated in terms of was the officer doing something that is reasonably necessary to carry out their duties? And it's not often, you know, that you have, frankly, this brazen or this widespread of federal officers so systematically going beyond the scope of their duties. And so the fact that we haven't seen that many state prosecutions of federal officers, that's just because historically, you know, the federal government doesn't behave like this. Those were the before times. Right. Right. When you didn't have basically Trump's masked thugs out there just ripping people from their cars and places of work and places of worship and hospitals.

27:33OK, let's talk about the aftermath of the shooting. Right. Because an interesting thing happened at the U.S. attorney's office. Six federal prosecutors resigned this week over the Justice Department's handling of Renee Good and her case and specifically the Justice Department's push to investigate Becca Good, who is Renee Good's wife, at the same time refusing to open an investigation into the ICE agent who shot Renee Nicole Good. First of all, your just reaction to that and what legal grounds do they have to just have such an asymmetrical and unusual pursuit in terms of their investigation? That was so galling to read.

28:16I mean, I cannot imagine being a person who was willing to move forward with an investigation into the widow of the shooting victim rather than the person that shot her. This is very much part of their campaign to dehumanize their victims. It doesn't really matter who the victim is. If you get in their way, their view is you've lost all of your rights. You've lost your humanity. And they can just tar and feather you with whatever label strikes them as convenient, and they will lie their way through it and use the full force of the federal government to try to do so. That was one of the more horrifying, I think, things that has come out about this administration and an administration that finds new horrors every hour of every day.

29:13And, you know, for me, during the first Trump administration, the child separation policy was one of the more just horrific, grotesque policies. And I remember thinking at the time, anyone who was involved in that should never again be welcome in polite society. That hasn't panned out. No, Stephen Miller, still there. Certainly hope that this time around, like anyone who thinks it is remotely appropriate to use law enforcement powers against the widow rather than the ICE officer, like they just cannot be eligible for any future position of authority. You know, as far as, you know, the like legal questions of how can they do this, not to take it all back to the Supreme Court, but to take it all back to the Supreme Court, you know, in the court's absolutely horrifying immunity decision in Trump versus the United States, they went out of their way to affirm that investigative and prosecutorial functions were the core exclusive power of the executive branch and president.

30:19and so exclusive to the president, Congress can't pass laws that limit the president's exercise of those functions. And in that very case, there were allegations that the investigations were shams, that the threatened prosecutions were for improper purposes. What did the Supreme Court say? That doesn't matter. That doesn't make them beyond the scope of the president's power. So I guess it's not that surprising after you have the Supreme Court tell Donald Trump, you can use your federal law enforcement power to target anyone you want for any reason that he would go ahead and do that. I mean, just the Roberts court coming back to just make things just a little bit worse every single fucking time.

31:10But six federal prosecutors resigning from the case. These were career prosecutors. One of them was the acting U.S. attorney who was appointed by Trump and is involved in another case that Trump is really obsessed with. But first, just what are the implications of the case moving forward if you lose, like, the six top people in the office who are supposed to be pushing the investigation forward? I mean, hopefully that slows it down. So that's one potential benefit. You know, a second potential benefit is something we've seen play out in his effort to install his former personal lawyer slash insurance lawyer, Lindsay Halligan, you know, into a position of authority, which is if it's only dumb hacks that you can find to do the job, they're not going to do it well.

31:51And so it's quite possible that any attempt they might make at actually doing a prosecution or securing an indictment wouldn't fly because it stumbles on their inability to dot their I's, cross their T's and read. And then, you know, the final kind of thing it might do is it just colors the public atmosphere and potential assessment of a claim of like vindictive prosecution. Right. If like all the career prosecutors resign because they're uncomfortable handling this case, that's pretty good evidence to the judge that this case stinks. Oh, that's really interesting. I mean, also, if the whole point of the investigation is to have sort of the final word on what really went down, this is a great way to engender public confidence in the report.

32:37Psych! No, it's not. It's like the very opposite of that. Nobody is going to take this and say this is a genuinely, like, nonpartisan, independent report that, you know, seeks to find the truth. This is a tool for Trump to, you know, act politically in his own favor. Joseph Thompson, who's the acting U.S. attorney for the state of Minnesota, who just resigned because of the way the DOJ was prosecuting this case, was also the lead prosecutor in the I think it's the Feeding Our Future case where 58 people were convicted in a scheme to steal$300 million from government child nutrition programs. There are still 20 more defendants who are awaiting trial.

33:16Trump is, I actually think, in addition to George Floyd and that unfolding in Minnesota, the involvement potentially of Somali immigrants in all of this, the sort of racial underpinnings that sort of color the dynamic in Minnesota right now. He loves speaking ill of immigrants and brown people, and they're both there in Minnesota. I mean, I think that's this case is in many ways why he's been most recently attracted to the state. And now the guy that pursued the case that was leading the investigation has left. Does that derail that case a little bit? I mean, it's going to slow it down. I mean, not that I'm a fan of fraud.

34:00It's just the way in which there's clear partisanship that's like the judicial system is being employed for partisan political gain. And, you know, entire communities are being painted with a broad brush in really deleterious way, really in a really bad way and in a really divisive and cruel way. That is the not good part of this case. Pursuing justice for fraud is a good thing. But yes, sorry, to my original question, how does that affect the pursuit of this case and the prosecution of this case? So at a minimum, it's going to slow it down, right? Because if you change out all the prosecutors who all of a sudden have to get up to speed on the case, familiarize themselves with it, they are going to have to take time to do that.

34:47But second is what you were just saying is this further politicization of the Department of Justice is going to undermine public confidence in that case, even though there are very serious, real allegations of fraud that deserve to be held accountable. But when you just destroy public confidence in institutions like DOJ, that doesn't go away, even if, you know, the stopped clock occasionally has a meritorious case or two that it pursues.

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38:51Then there's the case itself. You know, independent of who they're interviewing and who they're harassing, whether it's Renee Good's widow or her child or any of the other people who are family members of the victim here. There's the fact that the FBI shutting out Minnesota police and their investigative agencies. The FBI taking over the entire investigation, how unusual is that from a legal perspective? It's very unusual, at least in cases like this, where there's just no reason to suspect that, you know, the state law enforcement apparatus is compromised, right, or somehow engaged in the commission of the crime.

39:32You know, it's state and local law enforcement that have primary responsibility for investigating crimes. You know, the vast majority of people who are detained and have criminal convictions have them by virtue of state and local law and state and local prosecutors. So these are individuals who have more experience and more familiarity with the locale, you know, the people who are potential witnesses, the communities. And so it is not common to just entirely exclude, right, this very helpful, you know, array of experts who have expertise and perspectives that you lack. And, you know, the lack of cooperation between state and federal law enforcement, you know, was also one of the signal flaws that led to the creation of the Department of Homeland Security.

40:18The idea was, you know, they would ensure there would be continued cooperation and communication between state and federal authorities. But obviously, that proved inconvenient at this moment. And so they just dispose of, you know, that project. That's so insane. I, of course, like all my 9-11 happened 120 years ago. Yeah, of course, DHS was created to solve that problem. And it's just been recreated single-handedly by the Trump administration. But I mean, when you screw over the people that need to be helping you and the people whose files and evidence you need, that's probably going to hamstring the FBI's investigation, no?

40:54I would think so. But again, they're not engaged in a serious investigation. You know, they are just engaged in an effort to try to find some way to smear Renee Good and to come up with heavily doctored footage, you know, that suggests the ICE officer, you know, wasn't at fault. And so they probably don't really care. I mean, they definitely don't care about actually uncovering what happened, because if they did, they wouldn't have released real time statements that already stated their predetermined conclusions. They wouldn't have excluded these law enforcement officials, you know, from participating in the investigation.

41:33So all of their behavior to date just suggests they don't really care. What's the timeline, do you think, for this investigation? I mean, I can't remember. I mean, with high-profile cases like this, what kind of month turnaround are we looking at? I really don't know. I'm not sure that there is any sort of standard across high-profile cases. It probably depends on whether they feel like they have spoken to everyone on scene, whether they have collected all available video. So it's a little bit hard to know exactly what it might take. I mean, part of it is also going to depend on some of these high profile cases often involve hate crime charges.

42:17And those often take longer because they require uncovering additional evidence of motive. And so could it be, again, that they are looking for some evidence related to that? I don't know. That could prolong an investigation. So it's a little difficult to say, like, we should expect it to be wrapped up within this window or that. Something tells me it's not going to be done on an expeditious timeline. I mean, there's one thing that I find very hard to swallow and that it is sounds like, you know, first of all, the trauma itself was so profound, right? Renee Goode is shot through a windshield and killed in front of her family.

42:56and then her family, her widow, is now the focus of a federal investigation, which is also known as a federal smear campaign, right? And the government has so much power in this scenario. And yet Renee Goode, the family of Renee Goode, has so few, has very little recourse to seek justice from the federal government and from ICE. First of all, why is that? Yeah. So as we were kind of previewing earlier, there are a bunch of obstacles that, again, getting back to the Supreme Court, the Supreme Court has created to actually sue federal officers for violating your rights. Now, Congress, you know, in the aftermath of the Civil War, passed this law called Section 1983.

43:45It's a general civil rights statute. And that's the law that allows you to sue state and local officers who violate your constitutional rights. That's what's called a cause of action. Like it is the legal authorization to bring suit. Congress has not passed a similar law that allows you to sue federal officers for violating your constitutional rights. So what happened then? Well, back in the good old days, you know, the Supreme Court stepped into the breach in a case Bivens versus six unnamed agents of the FBI. The Supreme Court said when your rights are violated by a federal officer and you don't have another remedy, then you can sue those officers for damages.

44:32You know, the Bivens case was, you know, some law enforcement officers who break into a guy's house, you know, ransack it, force him to stand naked, and then they don't try him for anything. And oftentimes when the government violates the Fourth Amendment, they do so in the course of obtaining evidence that they use at your trial. So what's your remedy then? It is asking the court to exclude that evidence. That remedy isn't available if you're not charged with a crime. And so in Bivens, the Supreme Court said for people like Bivens, it's damages or nothing. And in that circumstance, we recognize that courts have the authority to afford traditional forms of relief like damages.

45:11So that used to be the case. This court hates Bivens. They have basically limited it. And precedent. I'm just right. And precedent. The law, the rule of law, accountability for government officers. The list goes on. Democracy, multiracial democracy. How long do we have? And they've said, you know, unless you are suing a federal officer for a constitutional violation that basically is on all fours and exactly like one of the three prior cases where we have recognized a Bivens cause of action, you're out of luck. And so because we are seeing this unprecedented surge in immigration enforcement, engaging in unprecedented constitutional violations, there aren't prior Bivens cases that say you can sue an officer under these circumstances, even though, like Bivens, for Renee Nicole Good and her family, it is Bivens or nothing.

46:08Why did Congress not pass a law that matched a law that was passed in the Reconstruction era? So I think there are several different explanations. One is, so long as the Supreme Court was like filling in the gap, it was just a less pressing need because there weren't this slew of cases, constitutional violation after constitutional violation, where the court was saying you have no remedy. You can't sue the officer. So I think that's part of it. And then, honestly, kind of like the lead up to the Supreme Court overruling Roe versus Wade, people failed to appreciate the direction that the court was headed in, right?

46:46Like, they didn't see where the court was going when they actually had the opportunity to do something, you know, when they had the supermajority in the Senate, you know, and could have passed, you know, federal protections for abortion rights, federal protections for individuals whose constitutional rights are violated by federal officers. So that's the kind of, you know, hindsight's 2020 sad aspect of the story. The positive spin I am choosing to put on it is as follows. This is one of those rare circumstances where Congress can easily fix something the Supreme Court has fucked up. All they need to do is just pass a law, amend 1983, and say, applies to federal officers too.

47:26And that fixes the problem. Right. That was actually the op-ed by two law professors this week who suggested that Congress should pass something called the Renee Goods Civil Rights Act, basically to account for the gaping hole that exists in our judicial system, which makes it very impossible, I should say, in this day and age to sue federal officers for wrongdoing. I mean, so that would just be an act of Congress. So simple, so easy, Leah. Yeah, I'll just snap my fingers. Or maybe if everyone in the world claps their hands at the same time, a Congress will appear. Oh, my Lord. Okay. I mean, that then gets me to a sort of a big question here, because you've said to a number of answers, you have invoked the highest court in the land, the Supreme Court.

48:09And I think the lowest court in my estimation. But seriously, girl preach. For a long time, it's felt like the courts have been the bulwark against the Trump administration, right, especially in the immediate aftermath of Inauguration Day, right? They're preventing executive overreach, the hollowing out of federal agencies. But that, I think, thinking that the courts are always there as a failsafe doesn't really hold up. I mean, New York Times report recently found that that Trump's the appellate judges that he has picked have ruled in his favor 112 times compared to the 13 times they have ruled against him.

48:48So give me your sort of like big picture analysis on how the courts are functioning here in terms of where they've slowed or blocked his agenda and where they've ultimately given him a hall pass. I think the federal trial courts have done a really admirable job in generally trying to hold the president and the administration accountable to the law. And I think it's no accident that that is why we have also seen the Supreme Court steadily narrowing the power of district courts, you know, to issue nationwide injunctions or to issue other forms of relief, you know, that would be effective against this administration.

49:25I also think it's no accident that we are seeing this administration put forward even more extreme nominees than they did during the first administration. You know, the ones who are voting for them, you know, 90 plus percent of cases. You know, who are some of the people they have appointed to the federal courts in the second term? Emile Beauvais, you know, the guy who literally came up with the strategy of trying to evade court orders and allegedly reportedly said, we'll just say fuck you to the courts. That guy. Cool, cool, cool. No, that guy. Now on the Court of Appeals. Exactly. Lifetime tenure.

49:56The guy who also attended a Trump rally after he became a federal judge. You know, there are also people that they have put up for the federal district courts who have described themselves as zealots on the issue of fetal personhood, the idea that the Constitution requires abortion to be illegal nationwide. So they are slowly transforming the federal courts, particularly the lower federal courts that have proven effective at checking this administration. So you're right, we can't count on the federal courts to always be there. We have to take a belt and suspenders approach to thinking about our rights.

50:33As we were talking about, Congress should have codified protections for Roe, not just relied on the idea that the Supreme Court was always going to stick to precedent. And we also need to think about what these institutions should look like in the post-Trump world. Because, you know, again, thinking proactively, we should think about how can we safeguard our institutions and like harden our democracy so that we don't slip back into this when we finally pull ourselves out. In the after times when he's no longer president and there's a truth and reconciliation committee and we begin to rebuild our democracy.

51:10You'll hear a little bit more from Leah in one quick sec, but first, on the latest episode of my show, Runaway Country, I interview Michael Moore, the former chief of police for the LA Police Department, because he offers some very interesting, and I'm going to say controversial perspective on how law enforcement is looking at the events of last week and understanding what exactly happened to Renee Nicole Good. And then the Bulwark's Tim Miller joins me to question the parallel realities Americans appear to be living in, despite ample video footage and even in cases of life or death. We take visits from Earth 1 to Earth 2.

51:47Tune in to Runaway Country wherever you get your podcasts or check it out on YouTube.

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53:41I just want to get your thoughts since I have you here as our legal eagle on some really high profile cases that are making their way through the courts. On Tuesday, SCOTUS weighed in for the first time on trans athletes participating in women's sports. And for years, most of those decisions have been left to state and local organizations, right? But the Trump administration is pushing to make the ban a federal issue. And some sources say that justices appear inclined to uphold it. I can't imagine. The Roberts Court? I know. What's your feeling on how that's going to shake out? I think the best case scenario is the justices say the state bans on trans girls and trans women participating in sports don't violate Title IX, the federal law that prohibits sex discrimination in educational institutions and services.

54:32That's the absolute best case. From there, it only gets worse. It's possible they will also say these bans don't violate the Constitution's equal protection clause. That would be worse because it would foreclose another potential claim that could be used to challenge these bans. The lower court in this case suggested they needed more evidence in order to weigh that claim. And so the idea that the Supreme Court will just go ahead and resolve it after the lower court said we need more evidence, right, should be some indication of how aggressive, right, they are inclined to be with respect to trans rights.

55:11And then still worse is the possibility, oh, yeah, that they're not going to do it in this case, but there's a possibility that some justice floats the possibility that Title IX itself forbids the participation of trans girls and trans women in women's sports. And so then it's not just, you know, that you can't challenge states where, you know, states have laws that ban trans girls and trans women. It's also that states won't be allowed to include trans girls and trans women. So that's the range of possibilities. Rooting for the first one real hard. Wow. It feels like the federal government has real leverage over states where this is being fought out.

55:59And the education department is also fighting Maine, California, Minnesota over efforts to cut off federal funding because those states allow trans girls to compete on girls sports teams. Right. That's those are this is sort of a parallel situation. It is multi-front litigation. You know, they are also targeting hospitals, you know, that provide gender-affirming care and research universities. You know, they are targeting schools, you know, that, again, you know, provide inclusive policies, you know, for trans students and trans athletes. So they are engaged in this all-out war on the existence of, you know, trans people and their ability to basically participate in society.

56:40I mean, I feel like the connective tissue between what's happening with that group of people and what's happening with migrants and brown people in the country is just a sort of brutalization and a diminution of their humanity. And I worry that the impunity with which this administration is going after people they deem not worthy of belonging in this country, that that is going to give them license to, I don't know, legally be as aggressive as they possibly can be and shoot for the moon in terms of punishing or otherwise dehumanizing people that don't fit within their political agenda. I mean, that actually really worries me that they see what they can do in a place like Minneapolis.

57:21And they're like, oh, yeah, you think we can get trans girls out of sports? Yeah, we're going to do that plus plus. Exactly. I mean, I think people have noticed this in the case of Renee Nicole Good, right? Like, it didn't really matter who she was. She's a white woman. She is now the enemy, you know, and they are just willing to lump in anyone who, again, they like harbor animus toward or who criticizes them or tries to stand in their way, like they will dehumanize all of those people and just like attempt to normalize the state violence, you know, against them. Well, and they're betting that the fact that Renee Nicolgood was a lesbian gives them a pass to torture her family in the wake of her death and smear her name and her story nationally with the full force of the federal government, right?

58:10And nothing's going to stop them in the same way that if you're an observer standing there with your camera phone, and we've seen videos of this this week, they can push you down to the ground regardless of whether you're, you know, following the law and an American citizen and have every right to be doing what you're doing. There's just a sense of lawlessness that is held on the part of the law itself. It is terrifying, Leah. I mean, it's absolutely terrifying. And the idea that there is no longer a consensus in this country that federal agents shouldn't be going door to door, car to car, hauling people out, throwing them on the ground and assaulting them.

58:48I mean, I would have thought, you know, before January of 2025, if you just showed anyone a video and you didn't tell them, right, who the officer was and who the target was, everybody would say, we don't do that here. That's not OK. And now they have polarized this, where, again, they are asking for permission from their ideological allies to engage in this kind of violence against anyone and everyone. And it is clear there is just no low they won't stoop to in order to, you know, traffic in some ostensible justification, you know, for what they're doing. Let me ask you one more question just as I think about this, because you're conjuring the specter of a future where there is no Trump administration.

59:37And I want to live in that future for just a moment. But if you're Kristi Noem or Stephen Miller, who's sort of one of the architects of all of this, and it's like one could say knowingly and willfully recruiting people who are either unqualified or uninterested in following the rules and violating the rights of American citizens. Like, are you hoping that Trump is preemptively pardoning you before you before he leaves office? And what is your expectation? Because so much of this feels like, OK, for now, you guys can do this because the circumstances are in your favor. Right. But there is going to come a time for accountability and there is going to be come a time for the legal and judicial system to hold you responsible for for the crimes that have been committed in the country's name.

1:00:26So like, what's your expectation as far as Trump's exit? And like, with this stuff in his rearview mirror, what's legally possible for him to do? I mean, I would assume everyone in the administration gets a preemptive pardon. What do you what do you would imagine that scenario is like? It's possible that that's what they are hoping for and that that's what they will get. But honestly, I also think they are telling themselves two things. One is that Democrats just don't have the spine. They don't have the backbone. They would never, right, actually hold anyone meaningfully legally accountable. I mean, you had to drag Merrick Garland's DOJ, right, for years in order to get them, you know, to potentially investigate Donald Trump's role in January 6th.

1:01:09And so I think they can look at past practice and be like, OK, like we're dealing with these spineless people. You know, they're not actually going to do anything. So that's probably part of it. And then I think another more terrifying lens is they don't really imagine or see a world where Republicans are no longer in power. They are acting like they will have a stranglehold on power for the foreseeable future. And so they're just not bothering to worry themselves with the possibility of a regime that isn't controlled, you know, by someone like Stephen Miller or J.D. Vance or, you know, whatever creepy weirdo, you know, is milling about with them.

1:01:51Well, I'm here to say that what we have seen and part of the reason you see some semblance of a spinal cord in Congress is because the people, the citizens of this country, are out there on the streets, people who are not normally out there with camera phones following a line of ICE officers as they inflict terror upon communities. They are enraged. They are engaged. I sound like I'm running for office. But they're there. You know, people have their eyes open to this stuff. And if the Trump administration thinks that the citizenry will go quietly into this good night, I think they got something else coming for them.

1:02:29Yeah. From your lips. Oh, my God. Leah, it is such a joy. I mean, it's not a joy to talk about this stuff, but it is so helpful and it's great to see you. But it's also so important to get a real sort of legal understanding of what's possible and what isn't possible, the challenges and also the opportunities that exist for all of us as we witness and bear witness to this insane chapter of American history. So thank you, my friend, for your time and your brilliance. And everybody should listen to strict scrutiny because it's the best. Well, thank you. Happy to come back anytime. And, you know, if you are looking for something to call your representative about, call them about a Bivens fix.

1:03:11Call them about abolishing qualified immunity for ICE. You know, you name it. There are specific asks you can make, you know, in order to build a movement around and to organize people around. Just we're going to put that at the bottom of the screen. Just call your representative and ask for a Bivens fix. 1-800. No, I don't know. It's not a 1-800. It should be just to get to the switchboard. But you have to look up your representative's phone number. But do it because it's worth it. Because fuck. These are the times to make big calls. Leah, thank you. Thank you. That is our show for today. Thank you, Leah Littman, for joining me.

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