You’ve probably seen that the FBI asserted exclusive control over the investigation into the death of Renee Good. This is a bigger deal than I think most people think. If I understand correctly, since this case involved federal officers and a crime scene controlled by federal officers the practicalities of the situation are relatively straightforward. The feds collected the evidence. The shooter is a federal agent. They can say, don’t talk to the locals. And clearly the shooter is happy to oblige. So in this particular case the nature of the incident means the feds have all the stuff and they simply don’t share it. As far as I know the FBI has not claimed any ability to overrule or remove the case from local authority. They’re just making bogus claims about jurisdiction and refusing to share the evidence. And in this case, especially with an increasingly obedient federal judiciary, possession is 9/10s of the law.
After the FBI asserted sole control over the investigation, the Minnesota Bureau of Criminal Apprehension released this statement. It explains that the FBI and local authorities first agreed to a joint investigation and then, a short time later, the FBI changed course and announced that they would no longer cooperate with local authorities. The BCA then explained that they had no choice but to withdraw from investigating the case since they couldn’t do so to their standards without all the available evidence.
That makes sense as far as it goes, and it would perhaps be a fine approach in normal times. The integrity of an investigation is paramount and if you can’t do it with all the available evidence, maybe you leave it to someone else. But these aren’t normal times at all.
Most people have looked at the Trump administration’s power play as a way to cover up what happened in the Good shooting. And it certainly is. Or at least it is intended to cover up whatever may need covering up. But it goes way, way beyond this individual case. I’ve written again and again about the critical role of the subordinate but separate sovereignty and power of state governments as a tool for resisting Trumpism and authoritarianism generally. It is, as I wrote, a sort of strategic depth in an extended battle over the future of the American republic. The ability to police, investigate, prosecute and punish crimes is a cornerstone of that sovereignty. It is the foundation of almost every other power. Almost nothing is more foundational. So while, as a practical matter, non-sharing of evidence is a complicated issue, states simply can’t surrender that power or even limit it in any way. If the federal government can seize that power by degrees or increments, it has gone a long way toward neutering the state governments.
Thankfully, Minnesota Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty did announce plans Friday to open an independent, local investigation into Good’s killing. The state can go to court at various levels to try to force the FBI to turn over the evidence it has, and, at least on the merits, it should have very good standing to do that. The state has an overwhelming and compelling reason to have these materials, and the federal government has little to none to deny it. Whether or not it plays out like that in practice, that is the legal terrain.
And regardless of how effective the state’s investigation can be, this is just not an opportunity where local officials can say, ‘Well, they’ve got us here; that’s all we can do.’ Policing power and who is permitted to use legitimate violence is at the core of sovereignty. It’s at the core of everything.
We remain in a space in which even many state government bureaucrats and policymakers haven’t thought through, examined and explored the scope of the sovereign powers of the states even within the open-and-shut supremacy of federal law. The FBI has no ability to assert sole jurisdiction of a a crime or potential crime in any state. They’re not even claiming one. They’re simply refusing to hand over evidence Minnesota needs to investigate a killing of one of its residents within its own borders. Now more than ever, these state powers and elements of sovereignty need to be jealousy guarded and protected from a lawless and renegade federal power.