I made up my mind after I imagined two very different newspaper headlines.
By Francis Shen
Minnesota’s resistance started in the streets. But its final chapters will most likely unfold in a federal courthouse, where rogue ICE agents will be brought to justice. And in that federal courtroom, what will matter most is not who has the loudest megaphone, but who has the knowledge and experience to navigate the legal complexities surely to arise as these agents for the Trump administration do everything they can to avoid successful prosecution.
The current case against ICE agent Gregory Morgan Jr. is a case in point. Morgan was in Hennepin County court last week to face charges of second-degree assault. But the issue this week was not the substance of his alleged crime. It was a technical legal question of jurisdiction. Morgan argued that because he was acting as a federal officer, under the federal-officer removal statute his case should be heard in federal court.
Other agents will deploy the same tactic, and as the Star-Tribune observed this will “create a historic legal scenario in Minnesota. The case would be overseen by a federal judge under federal court rules, but it would still be a state prosecution for violation of state laws.”
In normal times, the U.S. Attorney for Minnesota would be the author of this final chapter. That’s the office charged with leading federal prosecutions. But these are not normal times. Because the federal officials will not act, it will be the Hennepin County Attorney who will lead the case against ICE in federal court.
This is an unprecedented legal challenge for progressives, and to win will require moving beyond conventional thinking in next month’s Hennepin County Attorney election.
Amongst the many legal hurdles will be the ICE agents’ move to have the case taken out of state court and into federal court, and then their Supremacy Clause immunity argument that they were just doing their job. Lawyers know that courts might take this argument seriously, and it will take a seasoned prosecutor to win.
On November 3rd voters will find two names on the ballot for Hennepin County Attorney: Anders Folk and Cedrick Frazier. Voters won’t, however, find the usual party designation that helps them make a decision. Both Folk and Frazier are Democrats, and on the ballot it will simply say “Non-Partisan”.
When two Democrats run against each other, conventional wisdom is that one of the candidates is the “Progressive” candidate and one is the “Establishment” candidate. That’s a good angle for the press and social media because it drives clicks and views. But this over-simplified narrative is not accurate and blindly subscribing to it could undermine the progressive agenda.
If there’s anyone who should know this, it’s me. I was a candidate in this very race, and I’ve spent my career as a law professor advocating for progressive criminal justice reforms.
It thus came as a surprise to some when I endorsed Folk because the conventional wisdom amongst political insiders is that Anders is the establishment candidate, and Frazier is the progressive candidate. But I’m not a political insider and I like to question conventional wisdom.
If you do the same, you will see why there is a strong progressive case for Anders.
I made up my mind after I imagined two very different newspaper headlines.
One read, “Prosecutors fail to secure conviction against ice agents who killed Renee Good and Alex Pretti: Trump celebrates as legal experts critical of County Attorney strategy”.
The second headline read: “ICE agents convicted for killing Renee Good and Alex Pretti: Minnesota becomes the model for national movement”.
I asked myself a simple question: who is better equipped to do the hard work of winning a federal case against great odds? Would it be Frazier, the candidate who has never prosecuted a single case? Or would it be Folk, the candidate whose career has been in federal prosecution, who has led a large public law office, and who played a key role in bringing George Floyd’s murderer to justice?
I chose Folk.
If you ask yourself the same question, I think you will arrive at the same place. What some folks may not understand is how difficult it will be for a local county attorney to successfully prosecute a federal law enforcement officer. To use a sports analogy, this is the difference between winning in the regular season and winning deep in the playoffs. Rookies like Frazier can win regular season games; you need a seasoned veteran like Folk for playoff success.
The progressive case for Anders Folk is centered on justice.
Justice for Renee Good. Justice for Alex Pretti. Justice for all those hurt by ICE in our neighborhoods. This justice will ultimately be rendered in a federal courthouse, and we need a Hennepin County Attorney who can navigate the complex legal procedures.
I don’t like political labels. I like results. If the result you want is a successful prosecution of rogue ICE agents, I encourage you to review the records of both candidates and decide who is more capable of actually winning the case in court, not just in commercials.
Francis Shen is a Law Professor at the University of Minnesota and former candidate for Hennepin County Attorney this year.
