Letter from Pergamum-on-the-Potomac

One of President Donald Trump’s first actions after taking office was his Executive Order of January 25, 2017, instructing the Departments of Justice (DOJ) and Homeland Security (DHS) to deny federal grant money for local law enforcement activities to cities and counties refusing to cooperate with the federal government in dealing with illegal aliens. As night surely follows day this defunding strategy has gotten gummed up in the federal courts, similar to the limbo in which Trump’s order restricting visas from specified Muslim-majority countries languishes.

Leaving aside the legal merits one way or the other, trying to use federal funds as a club for beating sanctuary jurisdictions into submission is the wrong approach for at least two reasons. First, it allows city, county, and state officials to grandstand as champions of their citizens facing collective punishment from the evil, racist, overbearing feds. Sanctuarista officials can claim with some degree of justification that withholding funds endangers their communities by denying local governments tools to do their job—effectively distracting from the greater danger presented by the presence of the criminal aliens themselves.

The second problem stems from the feds’ use of “detainer” requests to local jurisdictions asking them to take the positive action of holding a named alien whom DHS (specifically, Immigration and Customs Enforcement) believes is subject to removal from the country. As the name implies, that’s just what these detainer notices are: requests, not orders, to hold the alien for up to 48 hours beyond the time he would ordinarily have been released from custody. As judge Andrew Napolitano has correctly pointed out, there is no legal obligation on the part of local authorities to help the feds with manpower or resources to enforce federal law. Plus, there’s a strong argument based on federalism and division of powers that the federal government can’t force—“commandeer”—state and local officials to carry out a federal function.

This puts the Administration in the position of punishing states, counties, and municipalities—and more precisely, their citizens, even those who may support Trump’s deportation policy—for their officials’ declining to do something they are not legally obligated to do. Politically, and probably legally, it’s a loser.

Luckily, there’s a more direct and almost certainly more effective approach available. Instead of asking for help from local and state officials, the feds (either DHS or DOJ) can notify the relevant custodial official (police chief, commissioner of corrections, etc., whoever has effective control of access to a prisoner and can sign him over) that an arrest warrant has been issued for a named individual and that federal officers will show up at such-and-such date and time to take him into federal custody. The recipient official will also be notified that he will personally face criminal prosecution if he seeks to interfere, either by shielding the alien or helping him to evade arrest (i.e., releasing him before the time when he would otherwise have been released).

At least two federal statutes give the Administration powerful leverage. Consider 18 U.S. Code § 1071, “Concealing person from arrest”:

Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined under this title or imprisoned not more than one year, or both; except that if the warrant or process issued on a charge of felony, or after conviction of such person of any offense, the punishment shall be a fine under this title, or imprisonment for not more than five years, or both.” [Emphasis added]

A similar provision exists for anyone who—

“ . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;” 8 U.S. Code § 1324(a)(1)(A)(iii), “Bringing in and harboring certain aliens.”]

In Section 1071, “whoever” unquestionably would include a local custodial official. The words “any” provide very broad purview, certainly sufficient to cover taking custody of an illegal alien. The words “after notice or knowledge” are also important, as they place the official receiving the notification in the position of risking prosecution under the cited provisions if he intentionally hurries the prisoner’s release prior to the feds’ arrival, somewhat analogous to destruction of evidence following issuance of a subpoena. Issuing a federal warrant for a named alien’s arrest and informing the relevant local police or detention official that federal officers will arrive at a specified date and time to seize him would, if the official harbored or sprang the alien, satisfy all the elements of a federal crime, namely that—

“(1) a federal warrant has been issued for the fugitive’s arrest; (2) the defendant had knowledge that a warrant had been issued for the fugitive’s arrest; (3) the defendant actually harbored or concealed the fugitive; and (4) the defendant intended to prevent the fugitive’s discovery or arrest.”

This proposed use of arrest warrants would reverse the dynamic of the current detainer requests. Instead of asking the locals affirmatively to do something which they have discretion to refuse, the feds would demanding, under pain of felony prosecution, that they not do something, namely not to harbor, conceal, or block discovery and arrest. Thus there is no attempt to commandeer local/state to perform a federal task, just warning them not to violate the law by interfering with federal officers in the course of doing their job. Keep in mind that there is nothing inherent in a prisoner’s being held by state or local authorities that immunizes him from federal arrest.

If this proposal is adopted, there would still be issues relevant to execution. Upon being informed that a sought alien had been booked into local or state custody (via the FBI, which automatically is informed of arrests and passes the information on to DHS) the feds would have to move fast, in most cases not giving notification until the federal arrest is imminent. No doubt increased manpower and federal detention space would be needed, and in turn increased funding. Evidentiary questions would arise as to whether in a given case an alien’s release may have been hastened to keep him out of federal custody. There would also still be the dilemma, as exists now, of whether it would be better to leave an illegal alien accused of a serious crime, like murder or rape, to face state prosecution, as deportation amounts to putting him at liberty in his own country without punishment but with the attendant danger of his illegal return.

Finally, there is the possibility that state and local custodial officials might defy the federal arrest warrant by shielding or releasing the alien anyway, citing sanctuary policies or (as California’s Governor Jerry Brown is now considering) state law. Well, bring it on! That could mean not only prosecution of the relevant custodial officials but of the culpable politicians—governor, mayor, cabinet officials, city councilmen, state legislators—on a charge of conspiracy and possibly solicitation.

Just picture ‘em—all cuffed and taking the perp walk: Governor Brown, California Attorney General Xavier Becerra, San Francisco Mayor Ed Lee and City Attorney Dennis Herrera, Los Angeles Mayor Eric Garcetti, Washington, DC, Mayor Muriel Bowser, New Orleans Mayor Mitch Landrieu, Chicago Mayor Rahm Emanuel, New York Mayor Bill de Blasio, and many others.

That would be quite a show!