Mid-May ruling set for special prosecutor demand to investigate alleged ‘Operation Midway Blitz’ abuses

CHICAGO — A Cook County judge will rule next month on a petition to appoint a special prosecutor to investigate — and possibly charge — alleged abuses by federal immigration agents during the Trump administration’s “Operation Midway Blitz” mass deportation campaign last fall.

Judge Erica Reddick’s decision, scheduled to be handed down on May 11, will take into account more than 1½ hours of arguments in her courtroom Friday. Following weeks of legal back-and-forth, lawyers for more than 400 Cook County residents, including elected officials and community leaders, again accused Cook County State’s Attorney Eileen O’Neill Burke of “abdicating her duty” to constituents for not having opened any investigations into alleged wrongdoing by federal agents.

Read more: Legal battle intensifies over appointing special prosecutor for alleged ‘Operation Midway Blitz’ abuses

“There are multiple conflicts preventing the state’s attorney from doing her job for the people of Cook County,” Meg Gould, an attorney with Chicago-based civil rights law firm Loevy & Loevy, argued Friday. She said the “first and most straightforward conflict” for O’Neill Burke was that her refusal to lead investigations was tantamount to “abdicating her duty.”

“This is a standalone reason to grant the petition,” Gould said.

Under Illinois law, special prosecutors can be appointed to oversee a particular case when a state’s attorney has a conflict of interest. The action is rare but is most often associated with high-profile cases.

For months, even before a political pressure campaign on O’Neill Burke to go after federal agents morphed into the present court battle, the state’s attorney has maintained that her office only has limited ability to open investigations without a request from law enforcement and to charge federal agents.

Lawyers for the petitioners said their Freedom of Information Act requests indicate there have been no immigration agent-related complaints forwarded from the Chicago Police Department to the state’s attorney’s office for investigation.

In court Friday, Cook County Assistant State’s Attorney Yvette Loizon told the judge all of the petitioners’ arguments for appointing a special prosecutor fall short of the legal standard for granting the extraordinary request.

“Judge, what we have here is a group of influential political leaders, community members from a cross-section of our city who are outraged. And they should be; we’re outraged,” she said. “But that outrage doesn’t translate to what the law requires to appoint a special prosecutor.”

Gould said federal agents’ alleged behavior was “textbook law enforcement misconduct,” which any state’s attorney has a responsibility to look into when a law enforcement agency is refusing to investigate itself.

“These are not just brutal acts,” Gould said. “They are crimes.”

She pointed to the Sept. 12 fatal shooting of Silverio Villegas González, an undocumented immigrant, in suburban Franklin Park, and the Oct. 4 shooting of Marimar Martínez in Chicago’s Brighton Park neighborhood as two of the most violent examples of agents’ unexamined crimes.

Read more: ‘My own government attempted to execute me,’ Chicago woman shot by Border Patrol testifies

Beyond those, Gould said agents committed “aggravated batteries, assaults, kidnapping, conspiracy and acts of perjury,” all of which she said O’Neill Burke “has the duty to investigate.”

‘No confidence at all’

In addition to O’Neill Burke’s non-action on investigating federal agents’ alleged crimes, petitioners’ attorneys argued that the state’s attorney has a “political alliance” with federal law enforcement, which also constitutes a conflict of interest.

Attorneys for the petitioners pointed to an August email, obtained via a Freedom of Information Act request, in which a former top staffer for O’Neill Burke declined a request for the state’s attorney to sign on to a letter condemning President Donald Trump for his threats to deploy National Guard troops to Chicago. Trump eventually followed through on the threat in early October, but mobilization of guardsmen was ultimately blocked by a federal judge.

The Aug. 11 email, dated nearly a month before Operation Midway Blitz began, explained why O’Neill Burke would not sign onto the joint letter.

“We obviously share concerns about Trump’s actions, rhetoric and bluster,” then-state’s attorney spokesman Matt McGrath wrote. “At the same time, the State’s Attorney’s top priority remains combating illegal guns, and to continue doing that effectively we need to maintain our excellent working relationships with the local ATF and other federal partners.”

Loevy & Loevy attorney Locke Bowman said the email was further evidence that O’Neill Burke has a conflict of interest necessitating the appointment of a special prosecutor.

“If she was unwilling to criticize the invasion of Cook County as it was about to happen, what confidence can the citizens of Cook County have that now — in the aftermath, when violence has been perpetrated, when crimes have been committed — that she will be the person to step up and investigate those who have committed crimes?” he told the judge. “I submit that the answer is no confidence at all.”

‘We want to do it right’

Loizon cited a pair of Illinois Supreme Court rulings dealing with special prosecutors, saying they ultimately instructed caution so as to not risk prosecutions getting overturned on appeal.

She said O’Neill Burke didn’t sign onto “political statements” like the August letter to mitigate that risk. Further, Loizon pointed to February guidelines the state’s attorney published for her office to follow for handling any future investigations of federal agents.

“The state’s attorney made it clear in her protocol, and we’re making it clear here today, that if ICE agents get investigated … we want to do it right,” Loizon said. “That we can actually hold them accountable without impediment.”

In a brief filed last month, the state’s attorney’s office wrote that “investigating and charging a case simply to have it dismissed before trial … would bring no accountability for any criminal acts arising out of Operation Midway Blitz and does nothing to advance the public interest.”

In a news conference after Friday’s hearing, Loevy & Loevy attorney Steve Art responded to that claim, saying there’s always inherent risk in bringing charges: “That there will be a successful defense to the charges, that a witness won’t show up to testify, that something will go wrong in the case.”

“For any of those things to happen, however, we need to get to the starting line,” Art said. “And the starting line is somebody who will not prosecute no matter what, but somebody who will look at the evidence and exercise some kind of prosecutorial power to say there needs to be accountability and justice in this case.”

He also dismissed O’Neill Burke’s perpetual concern about the federal Supremacy Clause and qualified immunity for federal agents, saying “we’re never going to know” what effect they have legally “unless someone comes in and actually prosecutes and investigates these crimes in the first place.”

“So what the Supremacy Clause really says in this context is if somebody is doing something reasonable related to their job, they’re going to have a defense in an ultimate prosecution of the case, which is a reasonable doctrine to have,” he said. “I don’t think that anybody who takes a fair look at the evidence of these serious crimes could possibly say that they are related to a federal law enforcement prerogative, or that they’re reasonable.”

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