Baltimore and Philly DAs: If Trump tries to pull a Portland in our cities, we'll arrest his federal agents

Baltimore and Philly DAs: If Trump tries to pull a Portland in our cities, we'll arrest his federal agents

In case you thought 2020 wasn’t insane enough, imagine Philly P.D. trying to take armed DHS agents kitted out like U.S. soldiers into custody as hordes of protesters and Antifa jeer both of them.

That’s really all we need to round off our new dystopian reality. An occasional gun battle or two between the feds and state cops.

Whether Philly DA Larry Krasner and Baltimore DA Marilyn Mosby really do have the power to charge federal agents acting in the course of their official duties is above my pay grade legally. Krasner pointed to corruption cases as precedent for doing so in an interview with Bloomberg, but corruption is a much clearer case than a DHS agent wounding someone by firing a tear-gas canister as a mob advances on a federal building. Lawyers are encouraged to weigh in on the Supremacy Clause implications in the comments. Krasner and Mosby certainly believe they have the authority to do it, per their new joint op-ed in WaPo:

Should Trump send federal agents who engage in the same illegal vigilante activities, unlawfully assaulting and kidnapping people, they will face criminal charges from our offices. The authority of city officials to prosecute federal law enforcement officials is clear. While 28 U.S. Code § 1442 provides that federal law enforcement officers may remove such charges to federal court in limited circumstances, it does not stop the local prosecution. We do not believe that the agents in Portland came close to meeting the standard required to prevent local prosecution, and officers exhibiting such behavior in our cities are similarly unlikely to meet this threshold.

Local authorities have the power to initiate an arrest and prosecution. Under our authority to defer prosecutions, we could hold off on proceeding until after the November election. Obtaining cooperation and evidence from federal authorities would presumably revert to pre-Trump norms under a new administration. In the meantime, local prosecutors would have the authority to subpoena individuals and make them appear before a grand jury. Finally, these crimes would be offenses against the residents of our respective states — not federal offenses — and, therefore, the president would have no capacity to pardon those we might prosecute. All of this is to say, we will not stand idly by while the president illegally turns loose paramilitary forces to commit criminal acts and violate the constitutional rights of innocent Americans for the purpose of energizing his base and improving his poll numbers.

Although the president claims to be a champion of the 10th Amendment, his administration has treaded alarmingly on the rights of states and localities.

They’re not saying they’ll arrest the feds on the spot if they show their faces in town. Obviously they can’t do that. They’re saying they’ll arrest them if they behave as they’ve behaved in Portland, whether injuring people using non-lethal rounds or detaining them without probable cause to believe they’ve committed a crime. Krasner has used the term “kidnapping” more than once to describe the now-famous incident caught on video of them tossing a protester who swore he’d done nothing wrong into an unmarked car for questioning. Criminal law prof Andrew Crespo looked at the comments made by DHS officials in defense of agents’ conduct during that incident. By their own admission, it sounds like they didn’t have probable cause:

DHS tried to clean that up in the same news conference by claiming that, in any event, the protester wasn’t technically arrested because he was quickly released. But he was, says Crespo, according to relevant precedent:

It’s not an arrest if the cops stroll up to you on the street and question you there, but if you’re in custody and not free to leave then you’re only supposed to be there if probable cause existed to believe that you were up to no good. Crespo’s takeaway:

The wrinkle for Krasner and Mosby is that the feds unquestionably are authorized to protect federal property, which is ostensibly why they’re in Portland, and they’re further authorized to make arrests for “any felony cognizable under the laws of the United States” that they witness while they’re doing so. Even critics acknowledge that the DHS deployment in Portland is legal, however misguided the statutory authority for it may be. If Trump wants to dress them up as soldiers and station them at federal courthouses or post offices or whatever in Philly and Baltimore and hope that their presence attracts a hostile crowd for the cameras, he’s entitled to do it.

Of course, as Crespo says, not every arrest being made by DHS is for cognizable felonies — or for any crime at all, it seems. Presumably any federal agent who makes an unlawful arrest can be charged by state officials for it. But is there any way to find out who the arresting officer is in a case like that, where the agents are unmarked by name, number, or face? Krasner and Mosby allude to waiting until Biden takes office to do discovery so that DHS will cooperate, but they’re assuming that the department is keeping records right now of how it’s operating that might be subpoenaed later. Maybe they aren’t, considering how irregular this operation has been already and how much public scrutiny they’re under.

To give you a sense of how far-left Krasner is, by the way, here he is today discussing his intentions to charge rogue feds on Democracy Now. That’s where you go when MSNBC is waaaay too centrist for you. He spent his career as a public defender before running a longshot campaign for D.A. promising to reform prosecutions in Philly. He succeeded thanks to a generous contribution from George Soros.

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