186. When Can States Prosecute Federal Officers?

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As ever, there is … a lot going on. But I was particularly struck by comments that White House Deputy Chief of Staff Stephen Miller made on Fox News on Friday. In response to concerns about whether ICE agents could be prosecuted by local or state authorities for their increasingly controversial conduct in and around Chicago, Miller first accused Illinois Governor J.B. Pritzker of “seditious conspiracy,” and then, in a message certainly intended to be heard far and wide, said: “to all ICE officers: you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop or obstruct you is committing a felony.”

We have, obviously, become completely desensitized to how utterly outrageous the first part of Miller’s statement is—especially given the fact that Miller is part of an administration that has pardoned people who were actually convicted of seditious conspiracy for their role in attacking the Capitol on January 6, 2021. Their accusations are so often confessions.

But I wanted to devote a bit of time to the second part of Miller’s message—his claim that ICE officers have “federal immunity in the conduct of [their] duties,” and that anyone who seeks to prosecute them is committing a felony. It is, to be clear, wrong on its face. The federal government absolutely retains the ability to prosecute federal law enforcement officers who break the law, even in the course of carrying out their duties. Indeed, the specter of criminal prosecution has long been the federal government’s principal argument for why we don’t need damages remedies to ensure that immigration officers follow the law. The fact that this administration is wholly uninterested in pursuing such prosecutions is a ...