Something amazing happened last week.
Gov. Gavin Newsom and Attorney General Rob Bonta warned California law enforcement that the Trump administration will try to block local and state police investigations into the killing of federal agents in California.
Don’t let that sink in.
Using the recent shootings of Renee Good and Alex Pretti by Homeland Security agents in Minnesota, Newsom and Bonta wrote that the federal government’s conduct in those and other recent cases “makes it clear that this administration will not only investigate such incidents but will try to prevent other agencies from doing so.” California lawmakers, wrote Newsom and Bonta, have a legal and moral duty to hold the federal government accountable for the crimes they committed here.
But with days to go before hosting Super Bowl LX — an event that many fear will bring an influx of President Trump’s ambassadors to Santa Clara County — the district attorney here, Jeff Rosen, is losing sleep.
Because you know that doing the work of Newsom and Bonta will not be easy.
After a lifetime of working alongside federal law enforcement officials, a veteran prosecutor admits he can no longer trust them to investigate the agents who killed someone in his district. And he doubts whether local police and prosecutors will be allowed to fill the void.
Rosen, like the rest of the nation, has seen the Trump administration deny Minneapolis police and Minnesota state investigators access to crime scenes, critical evidence and basic facts surrounding the deaths of Good and Pretti.
“The whole situation we’re concerned about is if the local police are not allowed to gather evidence or see evidence or are removed from the crime scene before they finish gathering evidence,” said Rosen, who has been in charge of Northern California’s largest prosecutor’s office since 2011. “We’re not looking to start a shootout … between local police and federal agents. here.”
But it’s a situation that Rosen has thought about a lot.
“That keeps me awake at night.”
A right to worry
Erwin Chemerinsky, director of Berkeley Law, sympathizes with Rosen, and for more reasons than one.
“We have never seen law enforcement act like this,” said Chemerinsky, an expert in Constitutional law. “We’re looking at a federal law enforcement battle and (unprecedented) conflicts between local police and federal (agents).”
UC Davis Law’s Gabriel Chin, who teaches criminal law and procedure, is also tight-lipped.
Federal law enforcement officials “seem to be doing everything they can to hide or prevent the exposure of bad cops by their agencies. … It’s bad, it’s bad – Jim Crow is doing legal things.”
However, while gathering evidence in the face of stonewalling is a new problem for Rosen and other local and government prosecutors in Trump’s America, it is not their only obstacle to holding federal agents accountable. They face, arguably, an even bigger one from the US Constitution.
Article VI’s Supremacy Clause makes the laws of the United States the “supreme law of the land,” and that has paved the way for other binding legal precedents that give government officials greater immunity from federal crimes.
Their method of avoiding prison is two-step.
First, if federal cases against federal officials involve acts committed “under color of office,” the officials can remove their cases from federal courts. What is appropriate is highly subjective, but that ambiguity has benefited government officials greatly, according to two legal experts.
Second, if government officials succeed in removing their cases from federal courts, there is the question of immunity.
Under legal precedent from 1890, government officials are granted immunity from federal criminal actions if the underlying actions were “authorized by federal law” and “necessary and proper,” among other exceptions.
The sad truth
So, how often are government officials convicted of murder after they withdraw their cases from federal courts?
Never.
UC Davis Law’s Chin says he can’t identify any time a government official has been convicted of treason in federal court.
In other words, government officials have avoided exposure to the country’s criminal law since long before Trump became president. But now that the administration is trying hard to block state investigations that could waive immunity, as if the officer’s actions were “necessary and appropriate,” holding ICE, the Border Patrol or the FBI to account is far from over.
In short, Chin said, the Trump administration is making it easier for federal agents to get away with murder.
Not losing sleep
However, Attorney General Bonta says he is not worried.
“I have no doubt that we can prosecute for murder,” said Bonta. “There is no world where federal law says its agents have a license to kill.”
Bonta points to a 2001 Circuit Court of Appeals decision that immunity is not a blanket protection for government officials. That 6-5 ruling gave states the ability to charge federal officials with federal criminal charges if they could prove that the police officers’ actions were “unreasonable” in the performance of their duties.
Legal scholars Chemerinsky and Chin agree with Bonta in the legal letter: States can indeed charge federal agents with murder in federal courts.
But it will be up to prosecutors, like Santa Clara County DA Rosen, to turn legal theory into reality.
And he doesn’t think it will be easy, given the obstacles brought by the Supremacy Clause and the Trump administration’s deliberate obstruction.
From the beginning of Trump’s second term, Rosen says, he expected Homeland Security to end up shooting someone dead. His office has been toying with Minneapolis-like situations for several months with law enforcement agencies based in Santa Clara County — including those in charge of security at Levi’s Stadium in Santa Clara on Super Bowl Sunday.
Local police departments and prosecutors are prepared to defend their investigations in the face of state hostility, he said.
“If someone gets shot in Santa Clara County, I’m going to investigate,” Rosen said. “I took an oath to defend the Constitution of the United States – and the Constitution of California.”
Reach Deputy Opinion Editor Max Taves at mtaves@bayareanewsgroup.com.
