After serious missteps, an effort to right the ship.
In a hopeful sign that a semblance of order is being restored, the Trump Justice Department announced today that the probe of Alex Pretti’s death is being conducted by the FBI and that it is a civil rights investigation.
I’ve been something of a broken record on this (see here and here) — specifically, on the contentions that (a) it is essential that the DOJ conduct the standard investigation that occurs when a person dies in an encounter with federal law enforcement and there is any potential that excessive force was the cause; and (b) the lead agency should be the FBI — not Homeland Security Investigations (HSI), a unit of Immigration and Customs Enforcement in the Department of Homeland Security.
The implication of these contentions is not that the agents involved in Pretti’s death (and, for that matter, in the death of Renee Good) are guilty of civil rights crimes or actionable homicide. It just means that a credible investigation must be conducted if the agents are to be cleared.
There is, of course, a better chance that agents will be cleared in the case of Good’s death than of Pretti’s. In the former, no criminal investigation has been announced; in the latter, we now have an investigation, and the agents who fired shots are on administrative leave as the probe ensues.
The FBI must take the lead because it’s the government’s lead agency in this type of probe. Manifestly, the DHS and its HSI investigators should have no part in this. It’s no knock on HSI to note that its investigative mission relates to immigration and border-enforcement matters, not the shooting of American citizens on U.S. city streets. Plus, agents of the Border Patrol (part of DHS) shot Pretti, while an ICE agent shot Good, so having HSI in charge would amount to DHS investigating itself. That’s to be avoided.
The New York Times reports on comments by Deputy Attorney General Todd Blanche:
We are looking at everything that would shed light on what happened that day. . . . I don’t want the takeaway to be there is some massive civil rights investigation. I would describe it as a standard investigation by the F.B.I. That investigation, to the extent it needs to involve lawyers from the civil rights division, it will.
This is right. The DOJ and administration are properly concerned that the opening of a criminal investigation could be taken to imply that the government has concluded that the agents are guilty. That’s why they have resisted opening investigations. But, to the contrary, not opening an investigation can be taken to imply — and I think has been taken to imply — that the government is afraid its agents are guilty and is engaged in a cover-up. The way to handle the situation is to conduct a thorough, fair investigation but explain that the opening of an investigation does not signal a predetermination one way or the other.
This is also a good omen that the president’s assignment of his border security adviser, Tom Homan, to take over the immigration-enforcement operations in Minneapolis, and Homan’s outreach to the city and state’s Democratic leaders (Governor Tim Walz, Mayor Jacob Frey, and Attorney General Keith Ellison) may be stabilizing matters.
State and local investigators want access to the evidence pertaining to the shootings and want to collaborate in the related probes. Relations between Minnesota officials and the DHS agents are poor, especially after (a) DHS failed to preserve the shooting scenes for evidentiary integrity and (b) the feds refused to give the state access to evidence (even as it asked the state to help DHS immigration-enforcement measures). With Homan at the helm in Minneapolis and the FBI doing the Pretti investigation, the door to more federal-state cooperation could open.
The Justice Department should handle the Good shooting the same way it is now handling the Pretti shooting. We’ll have to see what happens on that front.
It’s also very important, for credibility purposes, that FBI Director Kash Patel assign experienced agents and let them do a typical, methodical bureau investigation that lets the chips fall where they may. And to the extent DOJ civil rights lawyers or other prosecutors are involved, it’s vital that they, too, be solid — not on a crusade to get the agents but determined to follow the proof and the law. The media, Minnesota officials, and the public will be watching closely for signs of politicization. Hopefully, DAG Blanche will ensure that there aren’t any.