The sanctuary state of California just can’t keep itself from escalating the lawless insanity to new heights. Oakland Mayor Libby Schaaf had already said that she was willing (and maybe even eager) to go to jail to defend illegal aliens and her city’s extreme sanctuary policies that protect them. She should get her chance. By now the whole country knows that on February 24, she tweeted a warning to illegals that Immigration and Customs Enforcement (ICE) was about to conduct targeted operations directed at criminal aliens in the San Francisco Bay Area.
President Trump rightly called Schaaf’s actions “a disgrace.” Attorney General Jeff Sessions asked her, “[h]ow dare you needlessly endanger the lives of our law enforcement officers to promote a radical open border agenda?” And Acting ICE Director Thomas Homan, who has been calling for the criminal prosecution of sanctuary city officials for months, said “[w]hat she did is no better than a gang lookout yelling police.” The Department of Justice (“DOJ”) is reviewing the possibility of filing criminal charges against her. But do they actually have a good case?
Yes. There are several federal criminal statutes that her actions appear to have likely violated. The first is the so-called alien “smuggling” statute, which makes it a 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 this law, a defendant faces up to five years in prison “for each alien” [emphasis added]who is the subject of the crime. Since Schaaf’s warning may have led to “about 800” illegal aliens escaping from arrest by ICE, that certainly could add up to a lot of time for her, if she was found guilty.
Another charge that might fit the evidence could be Obstruction of Justice, specifically 18 U.S. Code Section 1505. Unlike some of the other sections of the Obstruction chapter, this section doesn’t require that a court already be involved for the defendant’s action to be a crime: DOJ only has to prove that a defendant “impede[ed]or endeavor[ed]to influence, obstruct, or impede” a “proceeding” before a federal department or agency. It might not apply to all the illegal aliens who Schaaf’s warning managed to scatter, but it probably does apply to any of them who’ve previously been in immigration proceedings, especially if they’ve already been ordered deported. ICE indicated that in May 2016 there were more than 950,000 of these so-called immigration fugitives on the run who’ve already received such orders. Thus, it is a virtual certainty that among who responded to the mayor’s tip-off and fled were fugitives from justice.
And then there’s the conspiracy statute, which would require DOJ to prove Schaaf first agreed with someone to commit either or both of the two crimes above, and then did “any act” to further that agreement. The act was obviously the tweet itself. Although Schaaf says she relied on “unofficial sources,” there’s nothing in the law that says that matters. It doesn’t even matter whether the government knows, or can prove, who the agreement was made with, just that it was made. Conspiracy indictments charge that defendants conspired with “persons known or unknown” all the time.
None of this means a conviction is ever guaranteed, of course: in the age of the Kate Steinle verdict, you never know what a jury might do even when the evidence of guilt is overwhelming. But it looks like there’s more than enough that it’s worth trying. The rule of law practically demands it.