Yesterday, one of ICE’s and the White House’s prize ICE-as-victim cases blew up. We’ve seen a version of this happen before. The story is pushed on Fox. Charges follow. But as it begins to make its way through the courts, it falls apart and the charges are more or less quietly dropped. We’ve seen so, so many of these cases where it’s clear that what the ICE agents said just wasn’t true. I don’t even have to tell you about some of the more obscure ones. Though they didn’t get to charges since the purported attackers were already dead, you can see the pattern in the killings of Renee Good and Alex Pretti. First, the story was that protestors were trying to kill ICE agents and the agents barely emerged alive. Then we see the video and none of that is true. The key, though, is that in those cases where charges were filed, it’s always no harm no foul. The claims of ICE agents are shown to have been false, but it’s on to the next wilding spree. There are no consequences. Not for the original behavior. Not for lying about it.
But yesterday something different happened. The DOJ went into court and asked that a set of charges be dismissed with prejudice, i.e., they can’t be filed again. And the reason was this sentence that’s been rattling around my head for the last 24 hours. “Newly discovered evidence in this matter is materially inconsistent with the allegations in the Complaint Affidavit.”
This doesn’t mean the kind of evidence you need to turn over to the defense because it might be considered exculpatory at trial. This sounds like evidence that means, what we charged them with totally didn’t happen. Our guys lied. Now Politico reports that ICE Acting Director Todd Lyons said today that the two officers who apparently lied are being investigated by the DOJ in connection with the case and … well, the lying thing.
In ordinary times, this wouldn’t require a lot of explanation. It’s no secret that law enforcement officers sometimes lie to justify unjustified use of force after the fact. And it’s no secret that prosecutors often give officers the benefit of the doubt. But if it becomes clear the officers are lying — like really clear — they’re going to be in a lot of trouble.
But that’s not how ICE works. ICE agents not only lie about being attacked all the time, they also get caught lying and it never matters. So what’s different in this case?
A few possibilities suggest themselves.
One is that the lying is so egregious and the discrediting evidence so strong that it’s just too much and they can’t not investigate these guys. That’s possible, but it kind of stretches credulity. Because that just hasn’t mattered in so many other cases. Usually they just drop the charges and move on.
Another possibility is that the facts here are really bad and it’s also a convenient moment to throw the book at someone to give ICE defenders a proof point they can refer to to argue that ICE is a lawful operation weeding out bad apples.
Yet a third possibility is that ICE and the White House are getting enough pushback from Republicans, a lot of it private so far, that they realize some house cleaning is necessary.
Of course, each of these theories require some level of rational, organized deliberation and action. And we’re not dealing with a rational and organized deliberation operation. I don’t know which of the above is the best explanation. But there’s one additional possible explanation that is more amorphous but perhaps comes closest to the truth.
As the public mood shifts, or perhaps as it hardens, against ICE, everyone gets a bit more insecure and worried. The public mood informs the next election and the bad midterm omens for MAGA raise the possibility of future consequences, future shifts in the political winds. When that happens, people get a little more skittish about looking the other way or covering things up. And when that happens at scale, old mores start, at least a little, to reassert themselves. Because going back to the book is safe. When the president is getting weaker, that becomes the safer bet. And when this skittishness starts to happen at scale, then it just gets harder to keep the cover ups and the new rules of the road working.
I suspect this is closest to the real story. To make the new Trump rules work, you’ve got to convince a lot of people that those new rules are for good and it’s safe to follow them. Not just the top people and the more thuggish ICE agents, but everyone. Everyone is a lot of people. When people get worried about future accountability, the politics of impunity get harder to sustain. It’s like sand grinding in the gears of collective lawlessness.