Law & the Courts

Can the Feds Save Chicago?

(Reuters photo: Jim Young)
No . . . but they could help a lot by telling the good guys from the bad guys.

The Trump administration has blown into Washington like a whirlwind. Contrary to several Beltway-insider predictions, our new president’s Twitter output has not ebbed with his assumption of office. Tuesday night’s flurry included this gem:

It is classic Trump. He trolls the media-Democrat complex that waxed hysterical over his inaugural speech, with its allegedly “dark,” “dystopian” invocation of carnage to describe the gang violence in many American cities. Simultaneously, he trolls Rahm Emanuel, the mayor of Chicago, the abattoir of American cities. After years of presiding over spiking street violence, the mayor had the Rahmesque gall to cheer the effort of the Obama Justice Department — on the way out the door — to scapegoat the city’s police.




Both of these matters have been expertly analyzed in recent days by Heather Mac Donald, the Manhattan Institute scholar and author of The War on Cops. Here at National Review, she dilated on “carnage” as an apt descriptor for more than 6,000 black men shot dead on the streets in 2015 alone, the vast majority of them killed by other black men. The Left’s hypocrisy could not escape her notice: taking umbrage at Trump’s word “carnage” after years of their own grotesque hyperbole over “an ever-expanding array of hatreds and injustice,” which, they absurdly claim, “disenfranchise large portions of the population and force them to live in fear.”

In a City Journal column, moreover, Ms. Mac Donald dismantled the Justice Department’s parting shot at the Chicago Police Department (CPD): a civil complaint bereft of statistical evidence that smears an entire police force, based on a comparative handful of incidents — a combined 425 uses of non-lethal force over a five-year period, a bare fraction of the hundreds of thousands of encounters between Chicagoans and cops. The blood flowing in the Windy City streets owes more to police timidity than to police action — the Ferguson-effect paralysis of law enforcement by the Black Lives Matter–led campaign that has encouraged a rampage by criminal gangs.

The tweet was also vintage Trump in that no one quite knows what he means by the threat to “send in the Feds.” On the Fox Business Channel on Wednesday morning, one commentator even suggested that Trump could be thinking of calling out the National Guard or other U.S. military forces. (Implausible: While governors have broad resort to the National Guard in their states, the president may not call them into service domestically in the absence of invasion or insurrection; and the armed forces are generally restricted from domestic law-enforcement activities — although there is a posse comitatus exception for rebellions against the United States that make law enforcement “impracticable.”)

Given that one of Trump’s closest advisers is Rudy Giuliani, a legendary United States attorney in New York City before becoming the Big Apple’s mayor, I think we can glean the president’s meaning.

Rudy hired me as a young prosecutor in the mid Eighties. He was already a high-ranking Reagan Justice Department official when he returned to New York, intent on flexing federal muscle to make a real impact on the city’s two biggest crime problems: drug-fueled street violence and the mafia. His success launched his career in electoral politics.

The federal strategy employed in New York can work in Chicago. The U.S. penal code is better equipped to deal with street crime today than three decades ago.

The federal strategy employed in New York can work in Chicago. Indeed, though street crime is not the core mission of federal law enforcement, the U.S. penal code is better equipped to deal with it today than three decades ago.

But make no mistake: While the feds can improve the situation in Chicago, they cannot fix it. By itself, the 12,000-strong CPD is nearly as big as the FBI’s nationwide force of less than 14,000 agents, only a small number of whom work in Chicago — and even fewer on street crime there. (See the website of the FBI’s Chicago office, which mentions “violent crime” only fleetingly.) New York City’s stunning decline in crime did not occur until Rudy Giuliani made the three-block walk from the Manhattan U.S. attorney’s office to City Hall — at which point the mayor and Bill Bratton, the commissioner of the 30,000-strong New York City Police Department, led a revolution in policing.

In fact, the best thing the feds can do for Chicago right now could not be done in Chicago. It would have to be done in Washington.

In Chicago, federal law enforcement could make a difference by using and building on task-force arrangements with the CPD and state police. High-crime areas could be targeted over a sustained period for investigations of narcotics trafficking, firearms offenses, violent crimes in aid of racketeering (racketeering can include street-gang violence and drug conspiracies), and extortionate interference with commerce by violence or threats. A healthy percentage of the cases developed — involving the most heinous crimes — could then be indicted in federal court, where the penalties are stiffer and surer.

Street-level felons, even when occasionally arrested, are used to being back in business before the cops can finish the paperwork. As a young prosecutor, I always found it refreshing to see the shock on the faces of such sociopaths on learning they’d had the misfortune to be arrested on “Federal Day” — the day or two per week when drug arrestees were brought into our less overwhelmed court system, ensuring that they’d be doing real time. That prospect led to the cultivation of countless informants, who decided they’d rather cooperate with police than sit in a federal penitentiary for five or ten years. In turn, this led to the successful prosecution of insulated gang leaders in large-scale cases.

Such a campaign could send a powerful message that there is a price to pay for preying on a community. For Chicago, it would be a welcome change from President Obama’s message. For all his administration’s hectoring on gun violence, the Obama Justice Department was inexcusably lax on gun-crime prosecutions, preferring to threaten law-abiding firearm owners and mobilize against the nation’s police forces, not in support of them.

Which brings us to the most crucial steps President Trump, Attorney General–designate Jeff Sessions, and the Republican Congress can take.

As I’ve previously detailed, the Obama Justice Department exploited a promiscuous Clinton-era law as a pretext to (a) promote the slander that the nation’s police are hunting down African-American men and (b) extort cities and towns to submit to Obama’s preferred techniques of passive policing. The law empowers the attorney general to sue cities, towns, and their police departments for an alleged “pattern or practice of conduct by law officers . . . that deprives persons of” federal rights.

For an administration willing to place anti-police hostility in the service of cynical identity politics, the law was a gold mine. As Mac Donald illustrates in connection with the recently filed suit against the CPD, establishing a pattern or practice does not require any concrete showing of sustained, broad-based misconduct. Instead, the Justice Department deemed a small sampling of bad behavior — inevitable in any large municipality with a sizable police force — to be sufficient. And why not? The Justice Department has a $28 billion budget and a bottomless staff of lawyers to throw at any case. Cities and towns do not have the resources to defend themselves, so naturally they say “uncle”: settling cases by submitting to consent decrees, which handcuff them with federal monitoring. Consequently, dozens of police departments across the country are now under Washington’s thumb.

Republican leadership must use Congress’s power of the purse to restrict the authority of the Justice Department to sue sovereign states, their subdivisions, and their law-enforcement agencies.

Once he is confirmed, Attorney General Sessions should put a stop to this. With Chicago at the top of the list, he should order a thorough review of all civil cases involving federal action against the nation’s police departments. Unless a real culture of egregious misconduct is uncovered, federal monitoring should be vacated — or at least substantially cut back.

It may be too much to ask for Congress to repeal the 1994 law that allows these civil lawsuits against municipalities and their police departments. Having made their bed with the Black Lives Matter crowd, Democrats would surely balk. Republican leadership, however, must use Congress’s power of the purse to slash the Justice Department budget and dramatically restrict the authority of Justice’s Civil Rights Division to sue sovereign states, their subdivisions, and their law-enforcement agencies.

There are bad-apple police, of course, and when they actually violate the civil rights of Americans, they should continue to be subject to federal criminal prosecution. But the grandstanding, politicized civil suits that lampoon entire police departments as rogues must end.

President Trump should get the feds to address Chicago’s carnage. But the first feds to get marching orders should be the ones at the Justice Department in Washington, and those orders should say: Start enforcing federal gun laws against the criminals, and let Chicago’s police do their job.


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