The Department of Obstruction
Minnesota lays out feds’ efforts to scuttle state prosecutions in Good and Pretti killings.
For many weeks, we’ve been waiting for charges to emerge from Minnesota in the killings of Renee Good and Alex Pretti by masked federal agents during Operation Metro Surge. The investigation has gone conspicuously quiet.
Now we know why.
Minnesota prosecutors filed a lawsuit Tuesday in D.C. federal court that lays out what’s been happening behind the scenes. The federal government has forced Minnesota to run the gauntlet just to obtain basic evidence to move forward: Good’s car, still shrink-wrapped and unexamined in an FBI storage facility in Brooklyn Center; shell casings; forensic evidence; and multiple statements in the wake of the shooting by federal officers.
It turns out that the feds not only have failed to cooperate with the state but have gone to great effort to stonewall the state’s requests, and they continue to do so.
Minnesota has jumped through every procedural hoop the federal government has demanded. Even so, the official answer, delivered through a combination of bad-faith denials and contemptuous silence, has been: too bad.
In both the Good and Pretti killings, federal officials on the scene agreed to cooperate, then the call came from D.C. Trump called Minnesota officials “crooked.” Noem declared the state “doesn’t have any jurisdiction.” The Minnesota Bureau of Criminal Apprehension (BCA) was excluded from interviews, turned away from crime scenes, and denied even the names of the masked officers who fired. In the Pretti matter, federal agents physically blocked state investigators holding a valid judicial warrant.
The lawsuit also seeks evidence from a third non-fatal shooting of Julio Cesar Sosa-Celis. Federal authorities quickly charged Sosa-Celis with attacking the agent who shot him. DOJ then voluntarily dismissed the case in February, citing newly discovered evidence ‘materially inconsistent’ with the complaint. The reporting was blunter: the federal agents had lied under oath.
In excessive force cases, the two sovereigns have always worked in tandem: federal civil rights investigators and state homicide prosecutors pursuing parallel tracks, sharing evidence, coordinating on witnesses. Sometimes the feds go first, sometimes they hang back. Sometimes one sovereign concludes there’s no case under its law, and the other proceeds alone. But they cooperate. The evidence flows.
That is the basic operating assumption of American federalism when a law enforcement officer kills someone on a public street under circumstances that suggest they were not in reasonable fear of deadly force from the victim. That was the model here, at least initially, until Bondi, Blanche, and company put the kibosh on.
Longtime veterans of DOJ’s Civil Rights Division have told me that this is the first time they have ever seen DOJ try to block state prosecutors. From my experience in the field, I can second that. DOJ has even tried to block state prosecutors from proceeding with a civil rights investigation.
Normally, a fatal shooting like Good’s would trigger an immediate investigation by the division’s Criminal Section. Instead, the administration actively blocked it, leading to the resignations of the four top DOJ officials in the section. The Department did announce, tepidly, an investigation of the Pretti shooting, but there’s no indication it’s being vigorously pursued; moreover, it’s a convenient fact the government can cite to resist sharing evidence of the incident.
Minnesota’s complaint documents over a month in which the state jumped through federal hoops to request evidence in the feds’ possession. They filed so-called “Touhy“ requests, the regulatory mechanism for seeking evidence from federal agencies. The state first directed the request to DHS, which had possession of the evidence. DHS said, “not our department; try DOJ.” Minnesota did, starting in early February. To date, DOJ has said…nothing at all.
I previously have explained that if and when Minnesota files charges in the killing, the federal government and the defendants can assert claims of supremacy clause immunity. Those arguments will turn on whether the agents reasonably believed the victims posed an immediate threat of deadly harm. So there plainly will be an opportunity for the Department to press the point if it believes the officers acted reasonably, though the arguments seem to cut violently against the evidence. But that’s not enough for the Department. It wants to scuttle any effort to bring the case to the justice system.
When the federal government denies a Touhy claim, the recourse is a challenge under the Administrative Procedure Act. Minnesota’s first two claims arise under that statute. The first lays out the long history of cooperation between the two sovereigns, and alleges that the failure to provide access to the evidence is arbitrary and capricious. The second is a similar challenge to the DOJ’s continuing non-response, and the attendant delay that frustrates the public’s interest in the prosecution of notorious shootings and threatens the degradation of evidence.
Notably, Touhy regulations don’t create any right to withhold. They govern procedure, such as where to direct a request and which official decides. The underlying statute is a housekeeping measure, not a privilege. Federal agencies still need an independent legal basis to say no.
Minnesota purposefully chose to bring the case in the district court in Washington, D.C., which provides an important advantage relative to other venues. In most circuits, a Touhy denial gets deferential review to the feds, and even if you win, it’s usually just a remand that lets the agency restate its denial more artfully. But D.C. takes a different, minority approach, which is less deferential to the agency decision.
The case has been assigned to Judge Emmett Sullivan, an exacting and no-nonsense judge with a strong independent streak. Sullivan is not reflexively anti-government, but he will not shy away from putting the Department through its paces to back up its factual assertions and legal claims.
It’s the third claim in the complaint that gets closest to the heart of what this case is really about.
The claim is brought directly under the 10th Amendment to the Constitution, which effectuates the full sovereignty of the states in our federalist system. In essence, Minnesota is arguing, with good reason, that the DOJ is giving it the Rodney Dangerfield treatment, trying to foil the state’s critical sovereign responsibility to investigate and prosecute a serious crime within its borders.
But while the 10th Amendment incorporates the right principle here, it has no real berth in the Supreme Court’s decisions. The Court has made clear that the 10th Amendment precludes federal demands on states to do even small tasks; but the Court hasn’t used the amendment to force the federal government to take action at the behest of the states, such as providing access to evidence. This case may force courts to take up the issue.
Importantly, even if the lawsuit falls short, it doesn’t spell the end of the prosecutions. The Pretti and Good killings are a powerful illustration of how excessive force cases have changed completely in the smartphone era, where nearly everyone on the scene has a good video camera.
I worked on the Rodney King case, where the federal prosecutors had to make do with one grainy video. Here, there not only are dozens of excellent videos, but they can be assembled to cover all angles and moments, such as the fatal shot Jonathan Ross fired at Renee Good through the driver’s window. That evidence, plus eyewitness testimony, can go a long way toward compensating for the absence of, for example, the car. And if the defense tries to make a big deal out of the absence of the evidence the feds have withheld, a court should instruct the jury that it’s the feds’ decision that kept the evidence from them.
Have another look at the harrowing videos — images that appalled a nation — and watch the federal agents gun down Good and Pretti on public streets under circumstances that put the lie to the feds’ reflexive claim that the victims were deadly threats. Then consider that the DOJ is pulling out all stops to prevent justice from being done, in any court. The obvious reaction to this obstruction campaign is disgust.
Talk to you later.
Thanks, Harry, for this and for your great convo with Katie earlier.
Nothing Trump's DOJ does (or doesn't do) surprises me anymore.