Lawfare Daily: Can Minnesota Prosecute ICE Agent Jonathan Ross?

[Intro]

Carolyn Shapiro: Undoubtedly, if Ross or any of his fellow officers were charged, that's the first thing they would do would be to remove it to federal court. That doesn't mean though, that it becomes a federal case. It remains a state prosecution. The state prosecutors would remain in charge of it. They would be the ones who would try it.

Anna Bower: It's the Lawfare Podcast. I'm Senior Editor Anna Bower with Carolyn Shapiro, founder and co-director of Chicago Kent College of Laws Institute on the Supreme Court. I'm also joined today by Bryna Godar, a staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School.

Bryna Godar: The president only has the ability to pardon convictions for federal crimes, and even though this would play out in federal court, it would still be a conviction if there was one for a state law crime. And so the president would not have pardon power there.

Anna Bower: Today we're talking about the state of Minnesota's investigation of Jonathan Ross, the ICE official who reportedly shot and killed Renee Good in Minneapolis on January 7th.

We discussed the state's jurisdiction to investigate a federal official, the obstacles state prosecutors might face in pursuing the prosecution, and the likelihood that Ross could raise what's known as Supremacy Clause immunity.

[Main Episode]

So, on January 7th, a federal Immigration and Customs Enforcement agent, Jonathan Ross shot and killed, Renee Nicole Good in her car in Minneapolis, Minnesota. In the aftermath of the shooting, the state of Minnesota says that it is conducting an investigation into the shooting. And Bryna and Carolyn, both of you have kind of served as legal “MythBusters,” in a sense, in the wake of this shooting.

And what I mean by that is that you've both written articles in Lawfare and in Slate, respectively, about whether the state of Minnesota can prosecute Jonathan Ross or other ICE officials. And you've done it in the context of senior administration officials making claims, for example, that the state of Minnesota does not have jurisdiction to complete its own investigation of this shooting, people like JD Vance, the vice president, or senior advisor Stephen Miller, saying that ICE agents have absolute immunity from prosecution by the state.

So I think just to start, you know, can the two of you talk a little bit about these claims that have been made by federal government officials about the power of the state to investigate here?

Does the state have jurisdiction?

Bryna Godar: Yes. The state undoubtedly has jurisdiction here to investigate and decide whether to bring criminal charges. These claims that we're seeing of absolute immunity are just incorrect and are counter to more than a century of these types of cases being brought by states.

Now, there is some type of federal immunity. There's Supremacy Clause immunity, that does apply in some circumstances, but it's not the type of blanket immunity that federal officials are claiming here.

Carolyn Shapiro: I, and I'll add to that, that there, there's a basis for this dual jurisdiction that's pretty well established in law, which is the idea that states and the federal government have sep—are separate sovereigns and therefore have different if overlapping interests. So there's case law regarding double jeopardy from 2019 where the Supreme Court reiterated longstanding precedent. It didn't really make new law, but it reiterated longstanding precedent that if a state prosecutes a crime the federal government can also prosecute the same actions.

Or vice versa and that this, we're not talking about against a federal official necessarily, but against anybody but ordinarily, if you've been prosecuted by a state for a particular set of actions, you can't, and you can't be prosecuted again. That's the guarantee against double jeopardy.

But the court said in, in this case, called Gamble, that doesn't apply in the context of, you know, a state going first and then the federal government prosecuting or the other way around. Regardless of how the first trial comes out, whether there's a conviction or an acquittal, it's just not susceptible to double jeopardy because they are separate sovereigns with separate interests and the a, the crimes or the actions if they're criminal, are affronts to each of those sovereigns independently.

So that's a, that's a kind of baseline understanding of the relationship between criminal jurisdiction and that applies just as much in this context as it does in that double jeopardy context with the overlay that Bryna referred to of Supremacy Clause immunity, because there are times when, of course the federal government does have the ability to preempt or prevent the state from doing certain things because of the Supremacy Clause, and I'm sure we will now talk about what exactly that means.

Anna Bower: Yeah, I do—okay. So we will get to supremacy clause immunity in just a second because I wanna talk about what it is and how it's different from the absolute immunity that people like Steven Miller have claimed that federal officials have.

But before we get to that, Carolyn, something that you wrote about in the piece that you wrote for Lawfare is, you know, the fact that because Minnesota is a separate sovereign, because it has its own state laws that are, you know, unique from federal laws in terms of criminalizing certain conduct, you mentioned some of the statutes that might actually be in play as the predicates here in an investigation of Jonathan Ross.

Can you talk a little bit about that? You know, I think that most people, would assume that there would be some kind of investigation related to unlawful killing, but, you know, what exactly does that mean? And then are there other things as well beyond the shooting itself that could also be the subject of investigation?

Carolyn Shapiro: I'm not an expert in Minnesota criminal law. So, I don't—what I'm saying is not comprehensive. And there may be nuances that I am not aware of, but Minnesota has first-degree murder, second-degree murder, third-degree murder. It has first-degree manslaughter, second-degree manslaughter. And one useful way of thinking about the types of types of charges that might be brought is to think about what happened to Derek Chauvin, the police officer who murdered George Floyd, also in Minnesota.

He was convicted of second-degree murder, what was called, what's called in that a sort of a subset of that called unintentional homicide and third=degree murder. And he was also convicted of second-degree manslaughter. So those are all immediately obvious potential charges for Jonathan Ross.

I think also looking at first-degree murder in Minnesota, that seems at least plausible to me that's a charge that the state might look at. The difference, one of the main differences between first- and second-degree murder in Minnesota, and this is different in every state is that first degree murder requires premeditation.

And the little bit of research I've done suggests that premeditation doesn't necessarily have to have started a long time before the shooting. It's not like it has to, or the killing, it's not like it has to be something that was plotted out for days ahead of time. So, I genuinely don't know the answer to this question, but one thing I would expect investigators to be thinking about is whether when Jonathan Ross transferred his cell phone to, from his right hand to his left hand. Is that evidence of premeditation within the meaning of that statute? So that, that would be the kind of question I would think they would ask.

Another statute that was not relevant at all in the George Floyd murder is a statute that requires people, really anybody to but including law enforcement officials, to come to the aid of a person who has been shot.

And so that would, that includes the person who does the shooting. And it also would include other people who are witnesses to the shooting. And as we know, that did not happen. Not only did the Ross and his colleagues not come to the aid of Renee Good, but they prevented other people from doing so.

And those are, that, those are crimes in Minnesota. They could conceivably that, that could even give rise to some versions of unintentional manslaughter or something along those lines. Again, not an expert on Minnesota criminal law, but if the evidence shows that she might have survived had they done those things that could increase their liability in a variety of different ways.

So those are again the kinds of laws that I think are in play here. There are of course laws in Minnesota and also federal policies allowing for the use of force by law enforcement officials and of course, the investigators would need to look at whether or not those, also, how those also play out given the facts of this particular case.

Anna Bower: Thanks, that's super helpful. And of course, however, this case proceeds would depend on the evidence and what happens in the course of the investigation. But if there are charges that result as a result of this investigation by Minnesota prosecutors as we've kind of alluded to, there is this, what I understand to be a defense that a federal official could raise, called Supremacy Clause immunity. So what is Supremacy Clause immunity and how is it different from absolute immunity?

Bryna Godar: So Supremacy Clause immunity comes from the Supremacy Clause in the U.S. Constitution, which basically says that federal law is the supreme law of the land and it wins out over state law if the two conflict.

And how this comes into play in state criminal prosecutions is courts have conferred immunity on federal officers in some state cases where it seems like the state prosecution if allowed to proceed, would interfere with federal officer's ability to carry out federal law.

So a prime example of this is in federal officer's efforts to enforce desegregation policies in schools, and some states were pushing back on those desegregation policies and trying to undermine federal law and use state criminal prosecutions of the federal officers carrying out those policies as one way to try to do that. And so that's where this idea comes from, is that federal law can't be fully undermined by state prosecutions, and it's a safeguard against that, but it only applies when a federal official is actually doing something that is authorized by federal law and the officials actions are necessary and proper in fulfilling their federal duties.

Or in other words, if their actions were objectively reasonable in carrying out those duties. So if a federal official is overstepping, is violating somebody's constitutional rights, is acting in an egregious or unlawful or unreasonable way, then there is this pathway available for state prosecutions.

And importantly, those state prosecutions are actually serving to further federal law and further uphold federal constitutional principles and rights in those cases.

Anna Bower: Yeah, and so it sounds to me like necessary this idea of necessary and proper to carry out official duties is the standard. Can you talk a little bit more about what exactly a defendant would have to show and what's the kind of procedure look like?

Like is there an evidentiary hearing or how exactly do you litigate all of this?

Bryna Godar: It's a little complicated. And I'll let Carolyn sort of dive in on some of the more specific things that might be considered in this case around use of force or other things that are going to come into play.

But the test is not fully fleshed out. The U.S. Supreme Court hasn't weighed in on this in more than a century and so lower federal courts have taken sort of varied approaches to exactly how they analyze what is necessary and proper, and also how they analyze whether something was authorized by federal law.

So typically, there is some assessment of whether the officer's actions were objectively reasonable, sort of looking at what another officer sort of in that situation would reasonably think was a reasonable response. But it's—the exact test is something that would almost certainly be debated in this case.

And then additionally, the procedure is a little bit uncertain as well. So there's this question of whether the federal judge should be the one deciding whether the facts are sufficient to confer immunity or if that's a question properly reserved for the jury.

So, for example, in a 1906 case, the U.S. Supreme Court looked at there being disputed facts in a case and under one account, the witness's account, they concluded that the officer's actions would not have been reasonable, and so they determined that was enough for the case to go to a jury—and actually, the officers in that case were ultimately acquitted. But then in more recent case from the 1990s, the ninth Circuit thought that the decision should be made by the federal judge on the case regarding the facts relevant to immunity.

So that is also a question that is a little bit up in the air at this point.

Carolyn Shapiro: Yeah, I agree with everything Bryna has said, I'll just add a couple of points. One is that even though this would, these would be state charges, they would be almost certainly removed to federal court. So there's a law that allows a federal official to remove a case from state court to federal court, either a civil or a criminal case if they, essentially, if they're going to, if they have a reasonable likelihood of having a federal defense. So—which would be the case here.

So undoubtedly if Ross or any of his fellow officers were charged, that's the first thing they would do, would be to remove it to federal court. That doesn't mean though, that it becomes a federal case.

It remains a state prosecution, the state prosecutors would remain in charge of it. They would be the ones who would try it and would try to persuade the judge in of that, that it was an appropriate case to move forward. They would be the ones litigating all of these questions that Bryna just mentioned.

And then of course, if it went to trial, they would be overseeing the trial on the merits. So that's a procedural wrinkle. And I don't think we know, Bryna, maybe you do, whether, if the judge concludes no, there is no federal Supremacy Clause immunity here, whether it would then be remanded to state court because then there is no more federal defense.

I don't know if you've encountered that.

Bryna Godar: My understanding so far is that it would still stay in federal court because the basis for accepting a case into federal court is broader than the immunity itself. So the idea is you can get into federal court even if you ultimately lose on the immunity defense.

But I'm not a hundred percent sure on that because there might be some Article III jurisdiction questions about how the federal court would continue to have jurisdiction under the U.S. Constitution if there isn't a federal legal issue in the case anymore. Even if there's sort of a statute that says you can do this, there might be some questions about whether the courts can keep hearing it under the constitution.

So it's a little bit complicated procedurally but it is possible it would be remanded to state court, but I have seen these cases go to trial in federal courts before often because there is still some immunity question lingering in the trial process, you know, a court might determine that the officer does not have immunity upfront, but there might still be some question of federal immunity that is left for the jury to decide.

And so I think that might be enough in some cases to keep the issue in federal court throughout that whole trial process.

Anna Bower: And am I correct in understanding that when it comes to removal. The kind of big picture impact, as Carolyn mentioned, you know, it doesn't transform the case into a federal case.

It's not like the substantive law changes. You're still dealing with state law. And it's a—but it's a federal judge who is interpreting these state law issues in terms of the pretrial litigation or things that might be raised at trial. And it's a federal jury pool, so there might be a distinction there in terms of, you know, whether there's a jury pool that's pulled in from different geographic areas than it otherwise would be at a state court level, right?

But—well, I think importantly, and Bryna, you mentioned this in your Slate piece, so maybe this is something that you'd wanna talk a little bit about. It doesn't change, as I understand it, the ability of the president to pardon someone is that right?

Bryna Godar: That's correct. Yes.

The president only has the ability to pardon convictions for federal crimes, and even though this would play out in federal court, it would still be a conviction if there was one for a state law crime.

And so the president would not have pardon power there.

Anna Bower: Yeah. And getting back to Supremacy Clause immunity, you mentioned some examples and that you've seen some trials that have been removed and then go to trial.

Can you think of any examples of a successful prosecution of a federal official in circumstances that are somewhat similar to this? You know, a shooting case or something in which an officer is carrying out actions in the line of duty, for example.

Bryna Godar: Yeah, so a number of these cases have definitely made it past the immunity hurdle and gone to trial. The outcomes vary. So there is, for example, a conviction of a postal worker who hit and killed somebody while driving, and they were convicted of manslaughter. There is a conviction from the 1970s of a border patrol agent who shot and severely injured a man who was running away.

That case is sort of limited use on the immunity front because the officer didn't actually raise the immunity claims until it was sort of raised post-trial, and so they didn't get into the immunity issue as much. But that was notable in that. It was a border patrol agent and a shooting and led to a state conviction for assault with a deadly weapon or instrument.

There was that case, but it didn't have the same immunity issues that would definitely be raised here. But the cases that ultimately lead to conviction are relatively rare because there is this double hurdle for states in bringing these claims regarding excessive use of force.

The first hurdle is immunity. And the second is that these cases are already difficult cases to bring and secure convictions on. And we have seen, as Carolyn mentioned, that has happened in Minnesota regarding the officers involved in the death of and killing of George Floyd. But it's not something that you see every day, even regarding state and local officers and federal officers have this extra layer of immunity.

Anna Bower: Yeah, and so beyond the supremacy clause immunity issue, what would some of the obstacles be to securing a conviction? Carolyn, maybe this is something that you wanna talk a little bit about, 'cause I know that you addressed some of these potential hurdles under state law, in terms of the arguments that Jonathan Ross might raise.

Carolyn Shapiro: Well under Minnesota law, the, a law enforcement officer, what they call a peace officer, has the right to use deadly force if that a reasonably objectively reasonable officer would believe, based on the totality of circumstances, that—I'm paraphrasing a little bit here—that such force is necessary to protect the peace officer or another from death or great bodily harm, provided that the threat can be articulated with specificity is reasonably likely to occur absent action by the officer and must be addressed through the use of deadly force, without unreasonable delay.

So Ross would probably argue that he was in fear for his life or his, because that he was afraid the car was going to hit him, Renee Good's car.

We've, I think since I wrote this piece, there's been more careful analysis of all of the different videos that are publicly available. I didn't opine in the, my law fair piece about the likelihood of his succeeding on this defense. And I'm still reluctant to do that just on the merits of it because I, again, that's not my area of expertise, but people can go and look at the videos for themselves. They can look at the New York Times, sort of frame-by-frame analysis of the different videos, and they can think about whether they think it meets this standard. And that standard is quite similar to the federal use of force policy that he would also rely on.

And it's not that different from the Fourth Amendment which prohibits unreasonable force. So this is a constellation of ways in which law enforcement officials are justified in using force. But the flip side of that justification is that there are times when they're not justified in using force.

And that's that line, whether that where along that line Ross's actions occurred. It would be, I think, a central part of any trial in this case.

Anna Bower: Yeah, and I'm curious on to your point about the specific, you know, factual circumstances here, either when it comes to raising some kind of justification defense under state law or raising a Supremacy Clause immunity claim, and arguing that your conduct was necessary and proper—to what extent do specific, like, federal policies or training practices, things like that, that has been the subject of much focus in related to this shooting.

To what extent do those policies on use of force and training practices like prohibitions against shooting at a moving vehicle or standing in front of it, that kind of thing factor into these evaluations of whether or not the conduct was justified or whether Supremacy Clause immunity applies.

Carolyn Shapiro: I think we don't entirely know the answers to those questions especially in the Supremacy Clause immunity context although maybe brena can jump in, but those are in part the types of arguments that frequently are made when law enforcement officials are charged with some kind of excessive force, whether it's in you know, state officials or whoever it may be, the general argument in response.

And the defense is usually some kind of, I feared for my I feared for my safety. I feared for my life. I, you know, I had to make a split-second decision, that's often heavily emphasized. Here's what I was trained to think about and therefore what I did was reasonable. And we can see how that plays out often, juries are often very sympathetic to law enforcement officials who make those types of arguments.

I think one example also from Minnesota is the death of Philando Castile who was shot by a police officer. It was a traffic stop. He was in the passenger seat, his girlfriend was driving. Their baby was in the backseat. Philando Castile had a license to carry a gun. And he told the officer that, and I think was reaching into his pocket and was shot. The officer was acquitted.

And he said, well, I, you know, I just, I was afraid. I, you know, I smelled pot. I didn't know what was likely to happen. I just. You know, I had to make a split second decision. I didn't, because I didn't know what he was going to do. I felt I had to protect myself, and he was acquitted.

So those are, you know, and so again, juries tend to be sympathetic to law enforcement officials. I think that the circumstances of each case are different. Of course, I think Derek Chauvin leaning, you know, kneeling on somebody's neck for nine minutes, it's pretty hard to justify that as something kind of deadly force that was necessary to protect yourself. So that might, you know, that partially explains the difference.

But Bryna, I don't know if there's more you'd like to add about supremacy clause immunity and how that plays in.

Bryna Godar: Yeah, I think I mean, like I said, the exact test for supremacy clause immunity is still a little bit contested and up in the air in some ways, but courts will, almost definitely look at that range of evidence when making this assessment of whether that officer's actions were objectively reasonable.

They will look at things like: Was the officer acting in accordance with their training? Does this potentially violate the Fourth Amendment? And the question of whether it potentially violates the Fourth Amendment has to do with, was there a justification? Did the officer actually believe that his life was in danger? And was that belief reasonable?

And so these are the types of things that would come into play in a Supremacy Clause analysis as well. And as Carolyn mentioned, in Chauvin's case, those training materials can sometimes be relied on as a defense, but they can also be used to show that an objective officer would not have acted that way because of their training to not do certain things.

And I think if this case is brought, those will definitely be pieces of evidence that we see the state pointing to in terms of arguing that this was not a reasonable response.

Anna Bower: Yeah, and I am, I'm curious as well, you know, this is a case in which the federal government has said that it is not sharing investigative material, for example, with the state, at least that is what has been indicated.

There, there doesn't seem to be cooperation between the state and the federal government on this investigation. Although initially the FBI said there was an investigation, we've subsequently learned that maybe that investigation is actually not into the shooting itself.

But into potentially the victim or her partner or other people who were witnesses to this incident. I wonder if you all have thoughts on, the potential significance of the fact that there's not or doesn't appear to be information sharing here, to what extent will that hinder a potential investigation by the state?

And are there examples that either of you know of, of similar kind of lack of cooperation between the state and the federal government in these cases that involve a federal official.

Carolyn Shapiro: So, I'll take a first stab at some of that. I, the, I think it's notable that the administration has said expressly, there is no investigation into the shooting. Right?

I think Todd Blanche from the, from DOJ said that earlier this week, he said, well, there's no reason for an investigation. We've all seen what happened. That's I would say somewhat shocking to me that there would be no investigation at all.

In this kind of shooting and that sends its own message. I should note that there are, were a number of resignations from the Department of Justice Civil Rights Division which would ordinarily do its own investigation into this kind of shooting. And the, I think it was four lawyers, I could be getting that number wrong, resigned. They said we're ready to go to Minnesota and do the investigation. And her, Harmeet Dhillon, who is the head of that division, said, no, we're not gonna do that investigation. So that's not the way it would normally work. It's, I find that, I mean, it just, it's not normal for there not to be any investigation at, at all at this point.

And in addition, a number of lawyers, I think six lawyers from the U.S. Attorney's Office in Minnesota also resigned over being told that they were supposed to be investigating Becca Good, Renee Good's partner.

Bryna Godar: Mm-hmm. And before you add more, I just wanna jump in to just say that I think those resignations just underscore just how out of the norm this is.

They really highlight that this is not the way that the federal government usually goes about handling these cases.

Carolyn Shapiro: Absolutely. But it does strike me that given that the federal government has made it very clear that it's, there is no investigation, that does make it in some sense easier or at least clears away some potential obstacles for the state to do its own investigation.

First of all, the federal government can't claim, I don't think, that there's gonna be obstruction of its investigation or interference with it. I suppose they might make that claim about the investigation into Renee Good's wife, but unclear. It also suggests to me that there might be the ability to obtain information that exists about this incident through FOIA, Freedom of Information Act requests. If there is an active investigation that might, that evidence might not need to be, that information might be withheld. And it might still be withheld under a variety of exceptions.

But if I were the state I would be asking for—I would, under FOIA, I would be asking for everything they've got related to this shooting as well as related to training, et cetera, and lots of other things. And if the, you know, since the federal government says we're not doing anything to investigate Ross, there's nothing to interfere with.

Anna Bower: So I wanna end where, kind of where we began, which is talking about these claims that some administration officials have made about ICE agents and federal officials more broadly having absolute immunity in the course of their federal activities.

You know, when I hear that claim, I immediately think of the Supreme Court's presidential immunity decision in Trump, which that decision has to my mind at least, kind of loomed large over Trump's first year of his second presidency in a variety of ways that are both, you know, visible and maybe not so visible.

I am curious, you know, I'm gonna ask you to do what academics and lawyers don't really like to do, which is to speculate a little bit. You know, what do you think is behind these broad claims that administration officials are making about absolute immunity? Is it potentially an effort to use that rhetoric to try to expand the notion of, or the idea of immunity that was expressed in the presidential immunity decision in Trump?

And is there anything about the Trump immunity decision that you think could indicate exactly where the Supreme Court would go in a Supremacy Clause immunity context, if it were to decide some of these tough questions that we've discussed that are yet to be resolved in the context of supremacy clause immunity?

And I know that's a thorny question, but if you have any thoughts on it, I would love to hear it.

Bryna Godar: Well, again, I can start just on the, what federal officials seem to be trying to do with this, and I think it is pretty clear that federal officials are trying to convey to officers that there are not consequences if they violate people's rights here and they're trying to cut out this longstanding role for the states in holding officials accountable if they overstep.

And I think it's important to emphasize, you know, we've been talking about the shooting of Renne Goode in this conversation mostly, but states can prosecute federal officers for a wide range of state crimes. There have been incidents in Colorado, in Portland, in Chicago, and elsewhere. Some involve shootings, but we've also seen prosecutions in the past for things like assault or kidnapping or things where the state is using its criminal laws to charge federal officers when they're acting beyond the scope of their duties or they're acting unreasonably. And that doesn't have to be something as extreme as taking somebody's life.

It can also include these other measures. And I think what federal officials are trying to do is tell officers that there is not that backstop there, that they won't face consequences if they overstep in this way.

Carolyn Shapiro: Yeah, I completely agree with that. The immunity decision is a very dangerous decision, and in my view, incredibly profoundly wrong.

But it does not require a finding that these officers have absolute immunity. And in fact, on some level, I think the Court, to the extent that it was concerned about the effects, may have thought in—you know, yes, of course there will be other ways of providing accountability for some officials. To the extent that the executive, that the presidential immunity that the court granted in Trump versus United States might extend beyond the president himself.

I think there are two primary ways that might happen. One is through the pardon power right. The president can obviously pardon anybody who he's in working with to advance what may be unlawful or criminal conduct. But as we've already addressed, that pardon power does not extend to state law crimes. So that that just simply isn't an available option.

The other way I could imagine it being argued is that, at least for people who are very high ranking and close to the president, the types of officials who might have some level of what's called executive privilege in terms of their communication with the president because they're advising him, I could imagine that the court would be somewhat sympathetic to extending immunity to those people, which I think would be a grave error, to be clear.

But extending that it to, you know, line officers who are fanning out across the country, you know, I don't see that as remotely—I don't see that. It's certainly not inevitable. I don't think it's even likely. There are other ways that the court might protect those officers: expansive Supremacy Clause immunity, incorporating. They might try to find ways of incorporating qualified immunity into this analysis, which it currently is not.

And the key difference, one key difference between qualified immunity, which arises in the civil context, and the types of immunity we're talking about here has to do with whether there are cases that exist, precedents that exist, that are closely related factually. That's what, in order to overcome qualified immunity, a plaintiff has to show that the officer did something that the officer that a federal court has previously said can't be done.

And that's just not part of the analysis that we've been discussing. So it's not that there aren't potential ways for the Supreme Court to expand immunity for these officials. I think there are, I hope but I don't see the absolute immunity coming into play ultimately here.

Bryna Godar: Yeah, I think I think that's right in terms of the immunity is this, federal courts could very broadly construe Supremacy Clause immunity in a way that it becomes much closer to absolute immunity without going the full route of absolute immunity to sort of leave room for more egregious cases.

And then the one other last thing just to add on motivations here is I think in addition to empowering federal officers to act without this idea of accountability, federal officials also seem to be perpetuating the idea that states don't have a lawful role here so that they can then suppress state efforts at accountability and target state officials who are seeking that accountability.

So we've seen the subpoenas issued against various Minnesota officials and threats of criminal prosecution against state officials if they do pursue this. And so I think that is also part of the narrative, is trying to cast what has long been a really important and traditional state role that dates back to the founding of the country to really cast that as something that is unlawful so that they can go ahead with these criminal prosecutions and other efforts to target state officials.

Anna Bower: We will leave it there. Bryna and Carolyn, thank you so much for your insightful answers to my many questions on this very thorny area of law.

Bryna Godar: Thank you.

Carolyn Shapiro: Thank you so much for having us.

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