Doing It Not by the Book

Earlier this week, I urged the Trump Justice Department and the FBI, for their own good as well as the country’s, to “Handle the Renee Good Shooting by the Book.” I was referring to the conducting of a bona fide investigation to determine whether ICE agent Jonathan Ross’s use of force was justified or excessive — with the understanding that, if excessive force was used, it could (but would not necessarily) lead to federal civil rights charges and state homicide charges.

That suggestion is not a stoking of suspicion against the shooter agent Ross. With the caveat that, of course, I don’t have access to the information the FBI has, I’ve repeatedly argued, I believe Ross was legally justified in using lethal force — which, obviously, is not the same thing as saying that ICE performed in an exemplary fashion.

To the contrary, an investigation of the shooting would be customary. It is what is owed to the public, the community in Minneapolis, and the family of the deceased. It is essential for purposes of demonstrating to the nation that the government holds its law enforcement agents to a high standard of lawful conduct — particularly at a time when ICE’s hardball tactics are the topic of front-page national coverage and a condemnatory federal court ruling. (The Justice Department is appealing the decision by Biden-appointed Judge Kate M. Menendez, with the Eighth Circuit having already stayed the judge’s temporary injunction against ICE).

I am not self-absorbed enough to believe my having suggested something influences the Trump administration’s to do exactly the opposite. But I suppose I am a reliable barometer: If I think an action would be both worthy and in the self-interest of Trump officials, they think, “Fuggedaboudit!”

Supervisory special agent Tracee Mergen of the FBI’s Minneapolis field office began an investigation of the Good shooting. But agent Mergen has now resigned. She had opened the probe as a civil-rights case. Evidently, Director Kash Patel’s FBI headquarters pressured her to discontinue it under those auspices and run it, instead, as an investigation of an assault on a federal officer. That’s not just prejudging the outcome; even if one believes Good’s operation of the car constituted an assault (as I do but others do not), that would not necessarily mean Ross’s lethal-force was justified. That’s why you do an investigation.

Meantime, six prosecutors in the U.S. attorney’s office in Minneapolis have also resigned because, while the Justice Department declines to investigate the shooting, it has directed prosecutors to inquire into the suspected ties of Becca Good (Renee Good’s partner) to leftwing activist groups. The government says that such groups are systematically impeding ICE enforcement operations. Again, even if the government is right about that (and I believe it is), it wouldn’t by itself justify either the Good shooting or the forcible tactics ICE is using on the streets against protesters and organized agitators.

The administration, naturally, will claim that the prosecutors who’ve resigned in protest are part of The Resistance and say, “Good riddance.” But they include, for example, Joseph H. Thompson, who led the prosecutions that have shown links between Democratic politicians and Somali community members who defrauded the government out of billions of dollars. Isn’t it possible, maybe even common sense and decency, that the aftermath of Good’s death wasn’t the best moment to gear up a probe of her partner — especially when the DOJ was insisting, against standard practice, that there was no reason to probe the shooting?

The Trump Justice Department is also investigating top Minnesota Democrats — Governor Tim Walz, Minneapolis Mayor Jacob Frey, and St. Paul Mayor Kaohly Her — on the dubious theory that they have actionably incited violence against ICE agents. That’s pretty cheeky of a Justice Department that has rebuked Biden DOJ special counsel Jack Smith for investigating President Trump on the theory that his January 6 Ellipse speech actionably incited the Capitol riot. (Federal incitement prosecutions are rare, but having successfully done one myself, I pointed out several times that Smith didn’t have a case. Neither does the Trump DOJ.)

This is all consistent with what I discussed in the above-linked post. On the shooting, the Justice Department has predetermined the outcome such that it won’t investigate a potential civil rights violation, notwithstanding that it would take such an investigation to credibly clear agent Ross. Instead, it is devoting its energy to finding scapegoats.

As someone who does not believe Ross should be prosecuted but grasps that he must be investigated, I can only shake my head. If the Trump Justice Department was affirmatively trying to ensure that Ross will be prosecuted for murder by state authorities, assisted by the next Democratic-controlled Justice Department, they couldn’t be doing a better job.

Similarly, if the Trump administration is trying to convince the federal courts that judges should scrutinize ICE’s tactics – because the administration would rather rouse its base with partisan combat than make certain of the professionalism and training of its agents – then, well, mission accomplished.