As with Renee Good’s death, refusal to conduct a credible criminal investigation only makes the eventual prosecution of federal agents more likely.
As with Renee Good’s death, refusal to conduct a credible criminal investigation only makes the eventual prosecution of federal agents more likely.
T he Trump administration seems to be on a mission to convince Congress, the courts, and the country that it cannot be trusted to conduct a fair investigation into the death of Alex Pretti, who was fatally shot by Border Patrol agents in Minneapolis on Saturday morning.
I confess that making yet another practical suggestion of what this administration could do to ensure a credible probe feels like a waste of time. President Trump and his top aides pervade the air with untruths, and the Justice Department has brazenly doubled down on the Biden DOJ’s pernicious lawfare practices — it is actually indignant about its delusions of moral authority to hound Trump enemies and scapegoats; the Biden DOJ was content to insult our intelligence by pretending it wasn’t doing what it was doing. What’s the point, then, of urging Trump officials to change, to help themselves, when it’s obvious that they won’t do it and when the public perception of corruption they have cultivated is probably beyond undoing?
I guess it’s that: What else can we do but try? We try and hope that self-interest will kick in — even if doing the right thing, because it’s the right thing, is out of the question. The pernicious precedents Trump officials are setting will be exploited with a vengeance when Democrats return to power (which will be soon, the way things are going).
In any event, the public and the families of Alex Pretti and Renee Good, who lost their lives in law enforcement encounters, deserve the accountability that can only come from credible investigations.
A number of missteps, simply astonishing under the circumstances, have already undermined any inquiry into Pretti’s death.
First, the administration continues to insist that the investigation is being conducted by the Department of Homeland Security (DHS) — specifically, by Homeland Security Investigations (HSI). That is an outrage. To begin with, this would not just be an instance of allowing DHS — hopelessly conflicted and of highly questionable competence — to investigate itself; even in better straits, HSI would have no business conducting criminal investigations pertaining to potential homicide and civil rights violations involving American citizens in an American city.
To put my cards on the table, I was against the post-9/11 creation of DHS. While we need border patrol, immigration, and customs agencies, the FBI and Justice Department could have absorbed these and other DHS responsibilities. The former Immigration and Naturalization Service, along with its Border Patrol component, was in the Justice Department sphere prior to 9/11 (together, INS and BP were the rough predecessor of today’s Immigration and Customs Enforcement (ICE)); and the U.S. Customs Service was in the Treasury Department. That bureaucratic arrangement should have been left undisturbed. But even if you disagree with me, and even if you believe DHS should have an investigations division, HSI is a component of ICE; ergo, any investigative mission should be limited to DHS’s mission: immigration, customs, border patrol, and national security.
We don’t need an investigative component of DHS’s ICE mission to carry out ordinary, domestic federal law enforcement. We don’t need it for civil rights probes. And we certainly don’t need it for investigations of state crimes involving American citizens (over some aspects of which the feds have concurrent jurisdiction). Those are the responsibility of the FBI. It is the bureau that has been designated by regulation (28 C.F.R. §0.85) as the principal federal investigative agency, pursuant to the attorney general’s authority (under 28 U.S. Code § 533).
Even if we put aside such objections based on institutional competence, DHS should also be kept a million miles away from running the investigation of Pretti’s death because its top official, Secretary Kristi Noem, and its top operative then on the ground in Minneapolis, Border Patrol commander-at-large Gregory Bovino, made false statements to prejudice the public understanding of the incident. Within hours after the Border Patrol agents shot Pretti to death, and before any responsible preliminary investigation could have yielded reliable information, Noem and Bovino claimed that Pretti had approached the agents while armed (in reality, an agent initiated the confrontation, and Pretti never brandished or otherwise threatened federal agents with his holstered, licensed firearm); and unconscionably, they said it appeared that Pretti intended to “massacre law enforcement” and do “maximum damage” (lies that were quickly disproved and from which the administration spent the ensuing days backpedaling — at least after the redoubtable Stephen Miller, the White House chief of staff, branded Pretti a “domestic terrorist” who “tried to assassinate federal law enforcement”).
Noem’s tenure as DHS secretary has been a trainwreck. (Check our Jim Geraghty’s Monday Jolt on the liability Noem has become for the administration.) It has culminated in a policy shift from capturing and deporting illegal aliens with serious criminal histories (extremely popular) to a dragnet to capture and deport every illegal alien in the country (unpopular and utterly impracticable given the government’s sparse enforcement resources).
Bovino, who seems to think he’s Colonel Jessup, was found at a hearing before Judge Sara Ellis (an Obama appointee) to have given false testimony about the circumstances leading to his throwing a tear gas cannister at protesters in Chicago back in October. Upon being confronted with video evidence, Bovino conceded he had not, as he’d claimed, been hit in the head by a rock prior to deploying the tear gas. (He was hit with the rock afterward. The Seventh Circuit ultimately reversed Judge Ellis’s order attempting to micromanage Bovino’s enforcement activities, but not her findings about Bovino’s lack of credibility.)
Grasping the damage Noem and Bovino have done to his immigration enforcement campaign, President Trump has edged them aside and put his border “czar,” Tom Homan, in charge of the tattered federal effort in Minneapolis. (Bovino has reportedly been stripped of his “commander” title; he’ll go back to being a Border Patrol sector chief in El Centro, Calif.)
That’s a start, but it makes no sense to keep HSI in control of a critical, intensely watched investigation that DHS has already tainted with misinformation.
Then there is the on-the-ground fact that the Border Patrol has already prejudiced the investigation by grabbing up evidence, blocking state police from access to it, and unforgivably leaving the scene of Pretti’s shooting death without securing it for purposes of evidence preservation and integrity. That is why, as noted at the start of this post, there is currently litigation in the Minneapolis federal court.
The state of Minnesota is asking Judge Eric Tostrud (a Trump appointee) to prevent the Trump administration from destroying evidence. On Saturday evening, Judge Tostrud issued a temporary restraining order barring the government from doing so. He then conducted a hearing on Monday at which Justice Department lawyer Frederick A. P. Siekert represented that the government had not mishandled the evidence in its possession. Alarmingly, however, Siekert would not commit to promising that the evidence would be preserved at the conclusion of the federal investigation, which he urged the judge not to “micromanage.”
Finally, just as in the Renee Good case, the Trump administration appears to be declining to investigate Pretti’s death as a potential civil rights or homicide case. At Monday’s hearing, the Justice Department presented Tostrud with an affidavit from Mark Zito, who heads HSI in St. Paul (meaning: the DOJ is implicitly endorsing an investigation by HSI — i.e., outside DOJ — rather than the FBI). Zito describes its probe as “reviewing the use-of-force encounter.” As the New York Times correctly reports, in law enforcement parlance, a use-of-force review is not a criminal investigation; it’s basically an administrative inquiry about whether agency protocols were followed. The implication is that the Justice Department has already decided that there is no conceivable basis for criminal charges. Of course, when someone dies in a law enforcement encounter, such a determination, if justified, can only be made after a thorough investigation; no credible investigation can proceed on such a presupposition.
The lack of a real investigation would not be acceptable to the public, nor would it clear the Border Patrol agents in any conclusive way. As I said in connection with the ongoing, mulish refusal to conduct a credible criminal investigation in connection with Good’s death, it makes the eventual prosecution of the federal agents more likely.
There is no statute of limitations in a homicide case. Even if Trump were to pardon agents to shield them from a later civil rights prosecution by a Democrat-controlled Justice Department, state prosecutors can bide their time and file homicide charges in connection with Pretti’s death once Trump and Republicans leave office. There is nothing a Trump pardon could do to stop that, and Minnesota authorities would have cooperation from a Democratic DOJ. (The medical examiner has already ruled Good’s death a homicide and will undoubtedly do the same regarding Pretti’s death. A medical examiner’s homicide ruling is not a determination that the events leading to death are legally actionable, but the former is a necessary building block for the latter.)
To repeat what we said in NR’s editorial:
A better way forward would be for Attorney General Pam Bondi to appoint a credible, Senate-confirmed district United States attorney with experience leading task forces comprising federal and state investigators. She should announce that the FBI, not the DHS, will take the lead on the federal side. And the chosen U.S. attorney should meet with his Minnesota counterpart to establish a joint investigation, in which the full corpus of evidence is made available to both the FBI and the state police.
This is not a perfect solution by any means. As we point out in another editorial today, FBI Director Kash Patel made a public statement after Pretti’s death — “you cannot bring a firearm loaded with multiple magazines to any sort of protest that you want” — which demonstrated cluelessness about the operative law (there is no legal impediment to bringing a properly licensed firearm to a fraught event at which police are certain to be present, even if the prudence of doing so may be questioned). More to the point, under U.S. Attorney General Pam Bondi’s stewardship, the Trump DOJ has demonstrated time and again that it elevates the president’s desired outcomes and political demands over standard, non-partisan, by-the-book law enforcement.
Nevertheless, there is no choice but to investigate with the Justice Department and the FBI that we have. There could be a credible probe if Bondi would name a strong prosecutor with a reputation for competence and rectitude; if she would assign the investigation to the FBI and enable Patel to put it in the hands of veteran FBI agents; and if the FBI worked the investigation transparently and in cooperation with state police.
I’m not holding my breath.