Bending Toward Justice: Will Oakland Mayor Libby Schaaf be Donald Trump’s first political prisoner?

Photo: (Photo by Justin Sullivan/Getty Images)

The Department of Homeland Security asked the Justice Department to charge Libby Schaaf with “harboring” illegal aliens by warning via Twitter of impending ICE raids in Oakland. 

It’s not enough for the Trump Administration to beef up its immigration enforcement action and ratchet up its anti-immigrant rhetoric. They want everyone to support this effort. And if you don’t, you might just find yourself on the receiving end of undue process.

Last year, Attorney General Jeff Sessions announced that the Justice Department would withhold federal grant money from sanctuary cities — those cities that prohibit their law enforcement officers from assisting Immigration and Customs Enforcement in arresting undocumented immigrants. Even after federal courts ordered the Attorney General to reinstate the funding, Sessions wasn’t deterred. He threatened to subpoenaed 23 sanctuary cities for documents showing compliance with ICE efforts to arrest undocumented immigrants in local custody.

Now, the Trump Administration is threatening criminal prosecution of a sanctuary city mayor.

A week ago Saturday, Oakland Mayor Libby Schaaf took to Twitter to warn city residents that Immigration and Custom Enforcement was planning a raid in the Bay Area in the coming week.

ICE proceeded with the raids and arrested more than 150 undocumented immigrants in the Northern California over the course of several days. But for Tom Homan, the Acting Director of ICE, the raid could have netted so many more arrests, if not for Libby Schaaf. He appeared on Fox & Friends (with President Trump probably watching)  to accuse the mayor of acting like a “gang lookout” and said the Justice Department was looking into whether her actions were illegal.

Legal scholars have been analyzing these issues at least since January, when Homeland Security Secretary Kirstjen Nielsen threatened prosecution of sanctuary city officials for failing to work hand and hand with ICE to carry out raids, and turn over undocumented immigrants held by local enforcement. In other words, for doing nothing.

In a blog post, ACLU Staff Attorney Cody Wofsy explained that the federal government cannot conscript state and local officials to carry out federal policies:

[S]tate and local governments’ ability to opt out of the federal deportation system is constitutionally guaranteed. The framers of the Constitution recognized that distributing authority — including between the federal government and the states — protects against the accumulation and abuse of power by a tyrant or group of tyrants. As the Supreme Court has explained [in Printz v. United States], this principle prevents the federal government from requiring state and local officers to become de facto federal agents. Therefore, even if the administration’s imaginary crime of declining to help ICE deport people actually existed, it would be struck down as unconstitutional.

But is the analysis different with Libby Schaaf? She did more than “nothing.” She didn’t sit just on her hands — and order Oakland officials to sit on their hands — while ICE carried out raids throughout the Bay Area. Schaaf warned undocumented immigrants in Oakland (and through Twitter, throughout the world), that ICE was coming.

Under the federal anti-harboring statute, any person who “knowing or in reckless disregard of the fact that an alien . . . remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation” shall be imprisoned not more than five years.

Congress didn’t define the term “harbors,” so it’s been left to the federal courts to determine how the word should be interpreted. And not surprisingly, the federal appeals courts don’t necessarily agree on the proper interpretation. The Second Circuit Court of Appeals — which oversees federal criminal prosecutions in New York, Connecticut and Vermont — takes a broad view of “harbors.” That court has interpreted to term to cover conduct that substantially facilitates an immigrant’s remaining in the U.S. illegally and that prevents the authorities from detecting the individual’s unlawful presence.

Under that standard, you can imagine aggressive (and politically motivated) federal prosecutors alleging that the Oakland mayor “substantially facilitated” one or more immigrants staying in the U.S. by warning about the impending ICE raids.

But Libby Schaaf wouldn’t be prosecuted under Second Circuit caselaw. She’d be prosecuted under Ninth Circuit caselaw, as the Ninth Circuit Court of Appeals oversees federal criminal prosecutions in California, Alaska, Nevada, Arizona, Washington, Oregon, Idaho, Montana, and Hawaii. The Ninth Circuit takes a more narrow view of what “harbors” means. That court has upheld convictions when the defendant provides shelter to an undocumented immigrant with the intent to conceal the immigrant from federal authorities. The focus in the Ninth Circuit is on physical acts to keep the immigrant from being discovered and arrested.

Libby Schaaf didn’t provide shelter to undocumented immigrants. She didn’t prepare false papers. She didn’t physically hide immigrants during the ICE raids. She warned Oakland residents to be careful but not panic, and to go about their daily lives knowing that Oakland officials wouldn’t help ICE in any way. Under the Ninth Circuit’s view of the anti-harboring statute, prosecuting her seems like a real stretch.

As we know, however, the Justice Department being on shaky legal ground isn’t much of an impediment to aggressive anti-immigrant action.