Of Course Sanctuary Politicians Should Be Arrested and Prosecuted

Thomas Homan, the acting director of Immigration and Customs Enforcement (ICE), has never been accused of being afraid to speak his mind.  But in an interview on January 2, there was one comment above all that stood out: he said, “we gotta’ start charging some of these politicians with crimes.”  He’s right, of course, but judging from some of the over-the-top reaction to this perfectly commonsense statement you might be forgiven for thinking he’d called for the revival of the Salem Witch Trials.

Sacramento County Supervisor Phil Cerna compared Homan to a rabid animal, saying he “seems to be foaming at the mouth.”  New York City Mayor Bill de Blasio’s spokesman said the comment was “unhinged and misinformed.” Dallas Mayor Mike Rawlings described it as “rattling a saber to make good sound bites,” while California Governor Jerry Brown’s spokesman continued with the rabies theme by accusing Homan of “frothing and fearmongering on Fox News.”

Not to be outdone by the politicians, the media and the illegal-alien activists ratcheted up the hysteria even further.  In The New Yorker, Jonathan Blitzer headlined an entire piece on Homan with the suggestion that he’d, “Embrace[d]His New Extremist Image.”  Mexican American Legal Defense and Educational Fund (MALDEF) President Thomas Saenz proclaimed that “[t]otalitarian thugs have no place in our government” and then predictably called for Homan’s resignation or removal from office.  And Mother Jones magazine trotted out University of San Francisco law professor Bill Hing to explain that anyone agreeing with Homan was “shooting from the hip” and “don’t know what they’re talking about.”

Of course, if Hing were correct, there’d be nothing for sanctuary politicians to worry about and therefore no need for all the name-calling, and Homan’s boss, Homeland Security Secretary Kirstjen Nielsen, wouldn’t have asked the Department of Justice (DOJ) to look into the possibility of holding sanctuary politicians criminally responsible for the carnage they help create.  Hing might be right that it’s “unprecedented,” but then, hundreds of local governments proudly defying federal law is also pretty unprecedented, at least ever since President Eisenhower sent in the 101^st Airborne to enforce school desegregation more than 60 years ago.

The specific federal law Homan mentioned for possible criminal prosecution, and has before, was  Title 8 U.S. Code Section 1324, entitled “Bringing in and harboring certain aliens.”  Probably of the most significance to politicians, police and judges of sanctuary jurisdictions is subsection (a)(1)(A)(iii) of that section, which makes it a federal crime for “[a]ny person 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”.  Under subsection (B), a defendant faces up to five years in federal prison “for each alien” [emphasis added]who is the subject of the crime.

Notable for their absence from the law are any exceptions for state or local officials.  The law is sometimes casually referred to as criminalizing alien “smuggling,” which might imply it’s limited to organized crime, gangs, cartels, etc., operating in the dark, but its actual language clearly covers much more than that.   Things like, for instance, a mayor trying to bar the door to courthouses to keep out ICE, a state legislator allegedly notifying illegal aliens that ICE is coming their way, a judge allegedly telling an illegal alien DUI defendant to go out the employee door of a courtroom to avoid ICE, or a police chief allegedly releasing illegal aliens before ICE could show up, just for starters.  Any of these examples is clearly “conceal[ing], harbor[ing]or shield[ing]from detection,” and in all of them it’s obviously with knowledge of the aliens’ illegal status, which is the whole point of the act.

So should the federal government still hold back from enforcing the law anyway, because that would be the “nice” thing to do?   Is it some kind of outrage to actually apply the law on the books equally to public officials just as much as to street gangs and drug cartels? The answer to both, of course, is a resounding no.

Furthermore, it’s a resounding no backed up by what the U.S. Attorney’s Manual already says, in which DOJ issues its policy guidelines to federal prosecutors, including about when it’s appropriate to charge someone with a federal crime.

Section 9-27.220 of the Manual is titled “Grounds for Commencing or Declining Prosecution” and it provides, in subsection (A): “The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, that the admissible evidence will probably be sufficient to obtain and sustain a conviction, and that a substantial federal interest would be served by the prosecution, unless, in his/her judgment, prosecution should be declined because:

1. The person is subject to effective prosecution in another jurisdiction; or
2. There exists an adequate non-criminal alternative to prosecution.” [emphases added]

There are very few more “substantial federal interest[s]” than immigration, which is primarily a federal matter.  Sanctuary politicians will not be “subject to effective prosecution in another jurisdiction” because most states do not have immigration crimes and wouldn’t be likely to prosecute their own officials even if they did.  And “non-criminal alternative[s],” such as suing state and local governments in civil court, have already clearly demonstrated they aren’t wholly “adequate” to stop, let alone reverse, the flood of new sanctuary cities, counties and even states, of which there are now more than 500.

Federal law provides for the personal accountability of criminal prosecution, and DOJ’s own stated policy already demands it.  If you do the crime, expect to do the time.