Judge Says ICE Can’t Retaliate Against Protesters (w/ Asha Rangappa) | Illegal News
Quick Read
Summary
Takeaways
- ❖A Minnesota federal court issued an injunction against ICE, prohibiting retaliation, arrests without reasonable suspicion, and use of pepper spray against peaceful protesters.
- ❖The court gave less weight to ICE's unsworn accounts, indicating an erosion of the 'presumption of regularity' for government agencies.
- ❖ICE's interpretation of 'reasonable suspicion' for arrests is contested; probable cause is required for detention, a higher standard.
- ❖The DOJ is investigating Minnesota officials for 'impeding federal law enforcement,' which is framed as a politically motivated 'sham investigation' targeting protected First Amendment activity.
- ❖The FBI's alleged weaponization is evidenced by investigations opened based solely on First Amendment activity, violating Attorney General Guidelines.
- ❖The executive branch's refusal to release all Epstein files, despite statutory requirements, demonstrates a 'make me' administration challenging judicial and legislative authority.
- ❖The FBI's raid on a Washington Post journalist's home, seizing devices, raises concerns about chilling press freedom and source protection, echoing Nixon-era tactics.
- ❖Trump's threat to invoke the Insurrection Act in Minnesota is viewed as a pretext to use military for civilian law enforcement, bypassing the Posse Comitatus Act.
Insights
1Federal Court Curbs ICE's Aggressive Tactics Against Protesters
A federal court in Minnesota issued a preliminary injunction preventing ICE from retaliating against peaceful protesters, arresting or detaining them without reasonable suspicion, or using pepper spray and non-lethal munitions against them. The ruling specifically noted ICE's lack of credibility in its version of events, giving more weight to plaintiffs' sworn affidavits.
The court enjoins ICE from retaliating against people engaging in peaceful protest, arresting or detaining them for such activity, and using pepper spray or non-lethal munitions. The judge found ICE's claims uncompelling because they were not submitted under oath, unlike the plaintiffs' accounts.
2Erosion of 'Presumption of Regularity' for Government Agencies
Courts are increasingly unwilling to grant the traditional 'presumption of regularity' to government agencies like ICE and DOJ. This means judges are less likely to assume that government actions follow normal processes and are therefore entitled to deference, reflecting a broader erosion of government credibility.
The judge was willing to put a lot of weight on what the plaintiffs had to say and not on what ICE was claiming because ICE's version was not submitted under oath. This is part of a trend where courts are regularly saying, 'We kind of don't believe you' to government agencies.
3DOJ Accused of Weaponizing FBI and Disregarding Attorney General Guidelines
The DOJ's investigations into Minnesota Governor Tim Walz and Mayor Jacob Frey, and protesters at a church service, are framed as politically motivated. The guest, Asha Rangappa, argues these investigations violate Attorney General Guidelines, which prohibit opening cases based solely on First Amendment activity, suggesting the FBI is being weaponized.
The investigations against Walz and Frey appear to be based on their encouragement of peaceful protest, which is protected speech. The Attorney General Guidelines state you cannot open an investigation based solely on First Amendment activity. This suggests the guidelines 'have been thrown out the window,' potentially returning the FBI to 'Hoover days.'
4Executive Branch's 'Make Me' Stance on Law Enforcement
The ongoing delay in releasing the Epstein files, despite a statutory deadline, exemplifies a broader problem of the executive branch refusing to enforce laws. This 'make me' approach poses an 'existential question for the survival of American democracy' as there are limited mechanisms to compel an executive who controls enforcement power.
DOJ missed the December 19th deadline for the Epstein files and has millions more under review without release. The hosts discuss the difficulty when an executive branch refuses to enforce a law, stating, 'We're in the make me administration.'
5FBI Raid on Journalist's Home Chills Press Freedom
The FBI's search of a Washington Post journalist's home and seizure of her devices, though she was not a target, raises significant concerns about press freedom. This action, despite specific Attorney General Guidelines protecting journalists, can chill First Amendment activity by deterring sources from providing information.
The FBI seized Hannah Nathanson's phone and laptops as part of an investigation into a government contractor. The host notes that AG Bondie rescinded a Biden-era policy protecting journalistic activity, and such actions can reveal sources, thereby chilling First Amendment activity.
Bottom Line
The increasing judicial skepticism towards government agency credibility (e.g., ICE's accounts) could lead to more stringent evidentiary requirements and less deference in future cases involving federal law enforcement actions.
This shift implies a potential rebalancing of power, where individual rights and plaintiff accounts gain more weight against government narratives, forcing agencies to provide more robust, sworn evidence.
Legal advocacy groups and civil liberties organizations can leverage this judicial trend to challenge government overreach more effectively, potentially leading to more successful lawsuits against federal agencies for constitutional violations.
The executive branch's willingness to disregard Attorney General Guidelines and weaponize federal agencies for political purposes creates a dangerous precedent for future administrations, regardless of party.
This normalizes the use of federal power to intimidate political opponents and critics, eroding the non-partisan nature of law enforcement and undermining public trust in institutions like the FBI and DOJ.
This situation underscores the urgent need for legislative action to codify and strengthen guardrails on executive authority, potentially through statutory reforms that limit the President's ability to direct investigations or enforce laws selectively, or even by exploring structural changes like a 'fourth branch' for prosecution.
Key Concepts
Presumption of Regularity
Courts generally assume government actions follow normal processes and are entitled to some weight. However, this episode highlights courts increasingly unwilling to grant this presumption to agencies like ICE due to perceived lack of credibility and procedural irregularities.
Attorney General Guidelines
Rules governing FBI investigations, established after the Church Hearings, designed to protect civil liberties. A key guideline prohibits opening investigations based solely on First Amendment activity, a principle allegedly violated by the current DOJ.
Posse Comitatus Act
A post-Reconstruction law prohibiting the military from engaging in civilian law enforcement within the United States, with exceptions like the Insurrection Act. Trump's proposed use of the Insurrection Act is an attempt to bypass this restriction.
The 'Make Me' Administration
A concept describing an executive branch that refuses to enforce laws or comply with other branches' directives, effectively daring them to compel action, creating an existential challenge to the system of checks and balances.
The Fourth Branch (Hypothetical)
A theoretical government structure, proposed by guest Asha Rangappa, where law enforcement and prosecution functions are separated from the executive branch, potentially placed under the judiciary or a new independent branch, to address executive refusal to act or weaponization.
Lessons
- Understand the distinction between 'reasonable suspicion' (for stops) and 'probable cause' (for arrests) to assert your Fourth Amendment rights if encountered by law enforcement.
- Be aware of your First Amendment rights to peaceful protest and to record law enforcement activity, as these are increasingly under threat and require active defense.
- Support organizations and legislative efforts aimed at strengthening protections for journalists and whistleblowers, and codifying Attorney General Guidelines to prevent the weaponization of federal agencies.
Notable Moments
Discussion of the 'Presumption of Regularity' and its erosion, where courts are increasingly unwilling to believe government accounts without sworn testimony.
This signifies a critical shift in judicial trust towards federal agencies, indicating a breakdown in the perceived integrity of government operations and potentially leading to more rigorous judicial oversight.
The hosts' 'Titanic analogy' to describe the failure of democratic guardrails, where compartments like the Electoral College, impeachment, and the 25th Amendment have 'flooded.'
This vivid metaphor illustrates the severe and widespread breakdown of checks and balances designed to prevent executive overreach, highlighting the systemic nature of the current democratic crisis.
The guest's proposal of a 'Fourth Branch' of government where law enforcement and prosecution are separate from the executive branch.
This radical idea reflects the depth of concern over executive weaponization and refusal to enforce laws, suggesting that fundamental structural changes might be necessary to safeguard democracy.
The hosts' observation that the executive branch is operating as a 'make me' administration, refusing to enforce laws and daring other branches to compel action.
This highlights a critical challenge to the separation of powers, as an executive who controls enforcement mechanisms can effectively nullify laws and resist accountability, posing an existential threat to the rule of law.
Quotes
"What I thought was really interesting in this opinion, Sarah, is that this judge was willing to put a lot of weight on what the def what the plaintiffs have to say, like their account of it. And she just said, I I'm just not going to put a lot of weight on what ICE is claiming about these because ICE had its own version of events. Um, but she was just like, 'I just don't find this compelling because that version, the ICE version, they were not submitting under oath.'"
"What we're seeing across the board, not just in this case, but you know, in these deportation cases, um, you know, Boseberg, uh, with the people who were flown out to SECOT, things like this, courts are increasingly unwilling to give this presumption of regularity because we see them regularly saying, 'We kind of don't believe you.'"
"One of the most basic things in the attorney general guidelines is that you cannot open an investigation on anyone based solely on first amendment activity. Okay? And so when I start and I mean and you know I did counter intelligence investigations a lot of counter intelligence investigations you know foreign intelligence services are trying to like co-opt journalists etc. I mean like anything that even touched first amendment activity was like taboo. It went up to like five different you know levels of supervisory you know approvals event like 90% of the time they're like no we're not going to touch that. So like it was taken very seriously. So when I see something like this, it tells me that the attorney general guidelines have been thrown out the window."
"It is a very difficult situation when you have an executive branch that is refusing to enforce a law. Like we've seen this for example with the Tik Tok ban, right? Like I mean what do you do when they just don't do it? Like when they don't investigate like we we talk a lot about presidential overreach. I think we don't really talk a lot about the the very unique problem when the exe when the president refuses to act."
"The Supreme Court's decision on absolute immunity is the is the iceberg. Yeah. That's the iceberg because I I really feel like we might have been able to manage if there was still some realistic threat of accountability based on like actual laws that apply to everybody. Once you've dispensed with that, I don't know."
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