Cook County Prosecutors Challenge Federal Investigation Directive in Memo to Chicago Mayor

Mayor Brandon Johnson’s initiative to have police investigate and collect evidence on potential criminal activities by federal immigration officers is once again facing criticism. This time, the backlash is coming from the office of Cook County State’s Attorney Eileen O’Neill Burke.

ABC7 Chicago has obtained a memo that highlights these concerns, adding to the growing controversy surrounding the mayor’s directive.

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Since Mayor Johnson signed the executive order last Saturday, it has been the subject of intense scrutiny. The Cook County State’s Attorney’s Office has conducted a thorough legal review, which suggests that the order, in its current form, may not be legally enforceable.

Mayor Johnson’s executive order has come under significant scrutiny since he signed it last Saturday.

The Cook County State’s Attorney’s Office has just completed what amounts to a highly critical legal review that could render the mayor’s order, as it currently stands, unenforceable.

Johnson gathered with political allies and supporters last weekend, and made a big deal of his plans to hold accountable any federal agents who violate the law in the course of immigration enforcement actions, whether during “Operation Midway Blitz” last fall, or anytime in the future.

But the mayor’s executive order, which requires police to preserve evidence of criminal behavior, and, at the direction of the mayor’s office, refer cases to the Cook County State’s Attorney’s Office for prosecution, is not passing legal muster.

According to a memo sent to the mayor’s office Friday afternoon “inserting the Mayor’s office into the already well-established process for felony review of charges is not only wholly inappropriate, but it also jeopardizes our ability to effectively prosecute and secure convictions when federal law enforcement agents have committed a crime.”

“It is not the job of the executive branch, and elected officials in particular, to be telling the prosecutor which cases to prosecute, which cases not to prosecute,” former federal prosecutor Ron Safer said.

“When that probable cause has been established, we will make sure that it gets to the state’s attorney for full prosecution,” Johnson said.

After signing the executive order, the mayor made it clear it’s about accountability.

“One thing that I’m not gonna do is interfere with justice; I’m just gonna make sure that justice is served,” Johnson said.

But the state’s attorney’s review concluded the mayor’s office’s involvement would do just that, noting that defense attorneys could characterize “any prosecution of a federal immigration agent as political … by suggesting that their investigation was ‘directed’ by the Mayor’s Office.”

“I think it is critically important to keep political concerns out of criminal prosecution at every level of government; our system depends on the impartiality of the prosecutor,” Safer said.

Could the executive order be reworked to help police and prosecutors looking at potential criminal activity, including two shootings in Cook County?

“I think it could be redrafted. I will tell you that my view is it’s a bad idea,” Safer said.

In a statement, the state’s attorney’s office said it is committed to doing everything possible under the law to support and review law enforcement investigations of federal agents, but said the mayor’s executive order adds significant hurdles to doing that.

The mayor’s office said in a statement:

“Given the extraordinary circumstances created by federal agents using force on the streets of Chicago, the Chicago Police Department requested guidance from the Mayor’s Office regarding the appropriate use of City police resources in responding to these harms.

“The Mayor’s Office will not evaluate or opine on individual cases involving federal agents suspected of violating state or local law. Evaluation of individual incidents, including the determination of whether a matter warrants referral to the State’s Attorney, remains solely within the professional and investigative discretion of the Chicago Police Department.

“At CPD’s request, the Mayor’s Office will work collaboratively with CPD to develop neutral, policy-level criteria to guide the prioritization of investigations and the allocation of limited departmental resources. These directives concern the responsible use of municipal resources and the establishment of general investigative priorities only.

“Providing policy-level guidance regarding the use of City resources is squarely within the Mayor’s executive authority and does not interfere with, influence, or compromise any individual investigation, referral decision, or prosecution. Decisions regarding charging and prosecution remain exclusively within the authority of the State’s Attorney.”