We have late word this evening that the Department of Justice has launched a “criminal investigation” of Minnesota Gov. Tim Walz and Minnesota Mayor Jacob Frey over a purported “criminal conspiracy” to impeded ICE’s work in the state. Let’s start with the obvious and important fact that the bar that has to be cleared to launch such an investigation is essentially nil. Only you need is a couple toadyish and corrupt DOJ appointees and they are currently in over-supply. Getting a criminal indictment let alone a conviction is in a different universe of possibility. The main point of this is simply to generate the headlines you’re seeing this evening (“criminal investigation!”) and perhaps load state and local government with subpoenas or perhaps raids.
But none of that should distract from the fact that this is the main conflict being joined or at least pointed to in a very clear and public way. Right now Trump has created a kind of rickety authoritarian presidency with lots of prerogative powers on overdrive – military adventures, pardons, corruption of the DOJ, ICE wilding expeditions in Blue states – and a lot of corruption. But there’s not a lot more. It doesn’t have the kind of power in depth to really subvert the constitutional order in a robust or durable way. To do that you have to bring the states to heel. That’s where most policing power operates. It’s where elections operate. It’s where most of the actual governmental power in depth in the US actually operates.
As recently as Monday I wrote this: “If you look at the trend of Trump rule in blue cities and blue states, the clear trajectory is that not being dominated is getting closer and closer to being a criminal offense, likely through conspiracy laws and such.” That’s precisely what’s being alleged here: that resisting these kinds of federal invasions or ICE wilding expeditions into Blue cities through entirely legal means and by the elected state authorities actually amounts to a criminal offense, as predicted a criminal conspiracy. In other words the states very existence as a separate albeit subordinate sovereign is a criminal offense against the federal government.
I’m generally pretty optimistic about the outlook here. But it’s important to understand clearly the theory that is being advanced, the aim that its authors have in mind. The sovereign authorities of the states, in their proper place, are just as legitimate and essential as those of the federal government. Those authorities must be defended with every possible effort, exertion and sacrifice, just as the territorial integrity of the United States would be defended against a hostile foreign invader since the Free States are now the repositories of America’s republican experiment and constitutional rule.
