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 101st 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.

About Author

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Dave joined FAIR in 2017 after more than ten years as an Assistant State Attorney in Broward County, Florida. His prosecutorial experience covered trial litigation at the misdemeanor and felony levels, drug court and mental health court, and two years as an intake attorney in the juvenile division working closely with law enforcement. Before this, he was a legislative analyst/staff attorney with the Judiciary Committee of the Florida House of Representatives, where he assisted state legislators in ensuring the effectiveness and constitutionality of legislation on a wide variety of subject matter. In both capacities, he often dealt with the interaction of state law and immigration. Dave holds BAs in History and International Relations from American University and a JD from Tulane University Law School.

6 Comments

  1. avatar
    James R. Alexander on

    I have been wondering for many, many months now WHY the politicians do not comprehend the English language or are able to find a dictionary. Most if not all dictionaries contain the word “ILLEGAL” which is half of ‘ILLEGAL ALIEN”. Some now object to that; calling them instead “undocumented immigrants”.

    WRONG! These mostly illiterate, unskilled, parasitic, diseased “FOREIGN INVADERS” in our Country are definitely nothing but “ILLEGAL ALIENS” which the Democratic Party demands be integrated into the American population in order to be productive, voting members of that same Democratic Party. [I’m sure you’ll remember how the Party treated/IGNORED the Black and LEGAL Hispanic population.] That same Democratic Party (minority) leader – Sen. Charles Schumer (D-NY) – has now withdrawn his offer to President Trump concerning the Wall the President has continually said America must have.

    To that, Senator Schumer, I say: NO Wall? NO to DACA now, in March 2018 or ever! NO to DREAMers now or ever! NO to any form of AMNESTY now or ever! NO to any more ILLEGAL ALIEN voters for the Democratic Party denying them the 2018, 2020 elections and beyond! BUT, YES, YES, YES to DEPORTATION of EVERY ILLEGAL ALIEN, UNDOCUMENTED IMMIGRANT or FOREIGN INVADER from OUR sovereign Nation – the United States of America – beginning YESTERDAY! Time for the GOP to stop being told where to pin the tail on the donkey. This game is over!

  2. avatar
    Ralph R. Miano on

    President Trump is doing an outstanding job in dealing with the awful illegal,immigration situation that currently exist in our country. Don’t expect any help from the mealy mouth Sen. Schumer the most UnAmerican congressman in the Congress. He is a liar, a cheat and a mean spirited person. The impermiable Wall must be built ASAP, chained migration must be stopped and retroactive, and no citizenship for DACA members. Get on the back of the line and file legitimate and legal documentation for citizenship. Illegal aliens are not entitled to ANY benefits that American citizens are entitled to. Eliminate ESL in elementary. All of my relatives that immigrated to the US did not need or require ESL. We learned English from our family members at NO cost to the government and produced the “ Greatest Generation of Americans”!!!

  3. avatar

    More to the point, if the U.S. Congress had intended to exclude elected officials and sitting judges from Title 8 U.S. Code Section 1324, then the congress would have done so, we may reasonably presume.

    Yet if the congress had done so, then it would have set these two classes above the law. So we may presume further that under the Rule of Law, the congress would not do so.

    But then the question arises: When if ever have the federal authorities charged with enforcing this law arrested a politician or a judge for violation of the subject law? If never, then we may reasonably presume that in practice the law does not touch these two classes of officials.

    Further, we may presume that if the responsible federal authorities had ever arrested a member of the two classes for violation of the subject law, then the author of this opinion would have cited this fact. He did not.

    What then should an ordinary citizen conclude when evidently not a single judge or politician among the 500 sanctuary cities across the nation has ever been arrested for violation of the law of the land?

    An ordinary person may believe at least that an unspoken law exists exempting these two classes from arrest for violating the law. Or put another way, elites stand above the law.

    Hence, a double standard in effect protects elites from arrest here. This view actuality supports.

    In his oath of office, however, the president swore to uphold the law in America. This citizen calls for the president to direct the proper federal authorities to arrest politicians and judges who violate Title 8 U.S. Code Section 1324.

    Otherwise, he too partakes of the double standard protecting elites from operation of the subject law.

  4. avatar
    Vigen Ghazarian on

    Great article….. time for action is long overdue…… get every single official and lib. judges prosecuted…. Our administration must set an example that we are a nation of law…. or else, this sanctuary garbage is going t
    o continue….

    • avatar

      Yes a Great article. But we need more than words in a great article. For way too many years all we have had is words. It is time for action NOW.

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