Trump's lawless witch hunt of Tim Walz crashes and burns
It's a remarkable setback for the DOJ.
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One thing that is becoming increasingly clear as President Trump’s second term grinds on is that the lower courts have had enough and aren’t interested in entertaining the administration’s persistent lawlessness.
In a truly remarkable setback for the Department of Justice, the chief judge of the United States District Court in Minnesota, Patrick Schiltz, quashed six grand jury subpoenas targeting state and local elected officials, saying they “were not issued to investigate, but to harass, coerce, and retaliate.”
The DOJ’s attempt to force Gov. Tim Walz, Minneapolis Mayor Jacob Frey, St. Paul Mayor Kaohly Her, Minnesota Attorney General Keith Ellison, and both the Ramsey and Hennepin County Boards of Commissioners to provide vast amounts of documents relating to immigration enforcement could not have failed more miserably.
Judge Schiltz’s order is low-key furious, a masterclass in politely simmering rage, unspooling the myriad ways the administration laid siege to Minnesota and how those subpoenas fit in. But before digging into Schiltz’s recap of Operation Metro Surge, a little bit of a detour is required in order to understand how rarely this happens.
The law is not on DOJ’s side
When it comes to grand jury subpoenas, the government enjoys a remarkable amount of deference from the courts. Those subpoenas are presumed to be reasonable, and a party challenging them has the burden of overcoming that presumption of regularity. Additionally, unlike search warrants, grand jury subpoenas don’t require a showing of probable cause.
Because of this, it’s very hard to get out from under a grand jury subpoena. Courts can quash them if “compliance would be unreasonable or oppressive.” This usually involves an overbroad demand, where the government asks for tons of records that have no meaningful relevance to the case. Courts can also quash a subpoena if the “dominant” purpose of it is improper. Investigations initiated out of malice or with the intent to harass fall into this category.
You will probably not be surprised to learn that these subpoenas managed to run afoul of both of these.
But the evidence showing that the subpoenas were issued “as part of an unconstitutional effort to coerce Minnesota officials into assisting the federal government with enforcing civil immigration laws and to harass and retaliate against them for failing to do so” was so strong that the court quashed the subpoenas for that reason alone.
It’s tough to remember that in the beginning, Operation Metro Surge was ostensibly about stopping fraud at daycare centers, an explanation that made so little sense that the administration didn’t even bother to keep up the fiction for very long. After the state filed a lawsuit challenging Operation Metro Surge on January 12, Trump went on social media the next day and threatened to cut off all federal funding to Minnesota and other sanctuary states, making clear what this was really all about.
By January 16, the White House was warning Minnesota that “‘Sanctuary’ Defiance Has Consequences,” and blaming state and local officials for refusing to “partner” with the administration and help with federal immigration enforcement. Trump threatened “RETRIBUTION” while Blanche went on TV to say Walz and Frey may have committed federal crimes. On January 20, the administration served the six subpoenas.
Here’s where the combination of arrogance and stupidity that is the hallmark of this administration tripped them up.
First, as Judge Schiltz noted, the subpoenas demanded all records related to federal immigration enforcement dating back to January 1, 2025, nearly one year before Operation Metro Surge began. Investigating the alleged federal crimes of Walz and Frey during the surge doesn’t allow the government to reach back in time and scour state and local communications in the hopes of turning something up.
Put another way, if one takes the government at its word that this was a good-faith investigation into whether the actions of Minnesota officials during the surge constituted a crime, documents from well before the surge that merely discussed federal immigration could not help prove that. Well, unless you believe that the mere act of discussing immigration policy and expressing displeasure with the federal government is a crime, which the DOJ kind of actually does.
But let’s say, for the sake of argument, that the federal government is entitled to records dating back that far. There’s still the issue of what crime, exactly, Walz, Frey, and other state and local elected officials are alleged to have committed.
Here are the things the DOJ thinks are crimes:
A proposed “Separation Ordinance” introduced by a Minneapolis City Council member requiring any city official who becomes aware of ICE activity to report it to the city council.
A Minneapolis City Council member’s public advocacy for an eviction moratorium, saying no family should have to choose between a roof over their heads and risking being kidnapped by ICE.
Internal guidance issued by Ramsey County saying “no data or document should be provided to the ICE agent, regardless of warrant or subpoena.”
Training materials from Hennepin County on how to respond to ICE agents, including instructing staff, if presented with a warrant, to ask for a few minutes to contact leadership. If ICE demands to apprehend someone, staff were instructed to provide no information, refuse entry, and escalate to a supervisor. If an ICE agent threatened to use force or did use force, staff were instructed not to obstruct the agent.”
First, if you are as eagle-eyed as Judge Schiltz, you’ll note that the first two alleged crimes were committed by Minneapolis City Council members — an entity that was not subpoenaed. So, citing those things as support for sweeping subpoenas of different government entities doesn’t work. Nor are either of those things crimes, which is kind of a big problem.
Additionally, as much as the federal government would like it to be otherwise, it is very much not illegal to observe and record law enforcement agents, nor is it illegal to disseminate information about those agents.
As far as the terrible crime of issuing guidance to staff on how to deal with ICE, Judge Schiltz noted that “none of this is itself unlawful, nor does any of this encourage unlawful behavior.” Further, the government’s attempt to say that those benign policies actually show a violation of 18 U.S.C. 111 also fell apart. That statute makes it a crime to forcibly assault, resist, oppose, impede, intimidate, or interfere with federal agents, and the big operative word here is “forcibly.”
Only actual physical contact or a display of physical aggression that would inspire fear of pain or death in an ICE agent violates this statute. So, instructions to staff to not impede or interfere with federal agents don’t really fit the bill.
Nor is it a violation of 8 U.S.C. 1324, criminalizing the “harboring” of undocumented aliens, to tell employees that if a law enforcement officer shows up with a subpoena, that should be escalated to supervisors or legal counsel, said Judge Schiltz, who must have the patience of a saint to keep unpacking this incredibly obvious, self-evident point for federal prosecutors who should not have any trouble whatsoever grasping this.
Judge Schiltz’s order also hearkens back to when then-Attorney General Pam Bondi said the quiet part extremely out loud, sending a letter to Gov. Walz on the same day ICE agents murdered Alex Pretti laying bare the tradeoff the federal government was demanding in exchange for ICE agents stopping their murderous rampage: (1) give the administration all of the state’s Medicaid and Food and Nutrition Service data; (2) give the administration all of the state’s voter data; (3) repeal all sanctuary policies.
With all of this, this wasn’t even a close call for Judge Schiltz, who agreed with the Minnesota officials that the subpoenas were issued as “part of an unconstitutional effort to coerce Minnesota officials into assisting the federal government with enforcing civil immigration laws and to harass and retaliate against them for failing to do so”
Here’s the problem the administration cannot get around, legally, so it keeps trying to get around it illegally: the Tenth Amendment reserves all powers not delegated to the federal government to the states.
That’s the basis for the Anti-Commandeering Doctrine, which prevents the federal government from making states use their own resources to administer or enforce federal law. That’s the reason sanctuary policies are perfectly legal and have been upheld multiple times. In fact, the same day that Judge Schiltz unsealed his order quashing the subpoena, a federal court in Los Angeles threw out the Trump administration’s lawsuit over the city’s sanctuary policy.
At its root, all a sanctuary policy says is “we will not be forced to use our state resources to help the federal government on a wholly federal issue.” In the case of the subpoenas, Judge Schiltz said that under the anti-commandeering rule, the federal government cannot coerce or retaliate against the state to compel it to enforce federal immigration law.
But that’s exactly what the federal government was doing here.
With that, as Judge Schiltz noted, the subpoenas were self-evidently issued for an improper reason, and therefore must be quashed:
“Initiating a criminal investigation in order to harass political opponents or to coerce them into taking official action — particularly official action that the federal government cannot directly require those political opponents to take-is a blatantly unlawful and unethical use of the grand-jury process.”
Add to that the fact that what the subpoenas purported to investigate was conduct that was perfectly legal, and the subpoenas were done for.
Judge Schiltz’s order was undoubtedly in the works long before the DOJ charged 15 anti-ICE protestors in Minnesota earlier this month. However, it’s impossible not to read this order as in some way speaking to those charges. As is the case here, those charges attempt to criminalize constitutionally-protected activity, such as talking about ICE, observing ICE, and vowing to resist ICE.
A partial victory
The now-quashed subpoenas were an attack on elected officials who dare to maintain sanctuary policies, which are entirely legal, and the charges against protesters are an attack on people who dared to resist ICE, which is entirely legal. Yes, it’s possible that sanctuary policies or resistance efforts could somehow lead to violent actions against federal agents, but in and of themselves, those things are simply not crimes.
But the federal government really, really wants them to be crimes, and that’s what both the subpoenas and the indictments are about.
That became starkly, awfully clear one day after Judge Schiltz’s order, when eight defendants in the Prairieland trial in Texas were sentenced to decades in prison. Several of the defendants did not even help plan the anti-ICE protest and left when asked by guards. But in the federal government’s framing, everyone was part of “antifa,” and playing any minor role, even distributing zines, was material support for terrorism.
As Melissa Gira Grant wrote over at the New Republic, these sentences are a national emergency: “The Prairieland cases should be understood as the government’s effort to heroize ICE in the face of community defense efforts to stop mass deportations, and to shift the blame for political violence from federal officers to the left.”
That’s exactly what the federal government was trying to do with these now-quashed subpoenas — to make the mere act of resisting ICE and their violent depredations a crime and, conversely, to make all of ICE’s actions, no matter how murderous, seen as courageous and legal. It’s the same with the recent indictments in Minnesota. It’s the same with the now-collapsed Broadview 6 case. The administration can’t win in court, so it resorts to violence and coercion. It’s not going to stop, but neither are we.
We’re in the right. We know it. Judge Schiltz certainly knows it. Even the administration knows it. But they’re scared to death of their own people, of those who will put their bodies on the line to do what’s right. And they should be. That’s more powerful, more noble, more heroic, than anything the administration will ever have to offer.
That’s it for today
We’ll be back this afternoon with a new episode of the PN Pod (featuring co-cost Paul Waldman), and then tomorrow with a special Saturday edition of the newsletter
Thanks for reading, and for your support.
I wonder so many things about this administration, but the big one at the moment is "How the hell did any of these people graduate from law school?"
The lower courts stand up … however the Supine Court remains enthroned.