No sanctuary for DHS's rhetoric
Political bluster makes headlines and fuels divisive debates, but these shocking statements very rarely mean anything in the legal sphere — that boring place where facts and black-letter law have no time for feelings or kneejerk reactions.
That’s why the idea that mayors of sanctuary cities could be hauled away in handcuffs is dubious, and Homeland Security Secretary Kirstjen Nielsen — a well-traveled attorney — probably knew that when she toyed with the idea earlier this week.
“I can’t even imagine what the theory of the case would be. This is a complete red herring,” former Boston federal judge Nancy Gertner said. “This is nothing more than saber rattling so that they can get people to do what they want.”
Nielsen said on Tuesday that she plans to ask the Department of Justice whether criminal charges can be filed against leaders of socalled sanctuary cities who refuse to cooperate with federal deportation orders.
Barring some deep conspiracy to actively break federal immigration laws, there is no part of the U.S. Code that creates criminal penalties for state and local governments that refuse to alert federal authorities about people who may be in the country illegally.
President Trump may be able to withhold federal funds from municipalities such as Amherst, Boston, Cambridge, Northampton, Somerville and Lawrence — but even that is an open question. This past fall, a federal judge temporarily stopped U.S. Attorney General Jeff Sessions from following through on his promise to withhold public money from Chicago and other sanctuary cities.
Going the extra step and actually ripping the mayor out of City Hall is an interesting hypothetical for internet message boards, but it seems fanciful at best.
“Withholding funding is one thing,” said David Weinstein, a former federal prosecutor. “Trying to bring a criminal charge where you have to show specific criminal intent is another matter altogether.”
So, in order to prosecute heavy hitters such as Mayor Martin J. Walsh, new U.S. Attorney Andrew Lelling would have to bring an unprecedented charge that would eventually go to an appeals court that recently chided his predecessor for reaching too far into state politics.
He would have to bring the charge as his office tries to fight the ongoing opioid epidemic, combat gang violence and determine whether he will jail those in the recreational marijuana industry. I don’t see it happening.
Maybe I’m wrong, and we’re entering a brave new world were indictments and thunderous hyperbole are dished out in equal measure.
But I think Walsh and others can rest easy knowing that facts still matter.