Given that the president and his minions have already concluded that the shoot was good, the outcome of Ka$h Patel’s investigation of the ICE killing of Renee Good seems like a foregone conclusion. What are the chances that the FBI will tell Trump he’s full of shit wrong? Not good. Not good at all. And when Patel reversed course and decided to freeze out the Minnesota Bureau of Criminal Apprehension from the investigation into the killing, denying access to evidence, to witnesses, to the killer, there was little expectation that it would end with anything other than an endorsement of self-defense when he was “run over,” as Trump proclaimed.

But the shame of Yale Law School, J.D. Vance, wasn’t satisfied with that and felt compelled to take it further.

Speaking at the White House, Vance appeared to try to stymie any efforts by Minnesota prosecutors to pursue a criminal case against the agent.

“The precedent here is very simple. You have a federal law enforcement official engaging in federal law enforcement action – that’s a federal issue. That guy is protected by absolute immunity. He was doing his job,” Vance said, echoing others in the Trump administration. “I’ve never seen anything like that. It would get tossed out by a judge.”

Not only is this false, but the ramifications of believing such nonsense are mind-boggling. Can ICE agents now kill anyone who gets in their way, annoys them in the course of their thuggery? Are feds free to commit crimes at will? Of course not. They are no more entitled to commit crimes than anyone else, and no more immune from prosecution for murder or manslaughter than any other criminal.

Of course, both prosecutors and juries have long given law enforcement officers far greater latitude in the course of their duty than others, extending an unofficial presumption that acts of excessive force but lacking malevolence may be bad but not criminal, to officers. And culpability for criminal conduct is distinguished from civil liability under Graham v. Connor, although the concepts have metastasize into the general consideration of police culpability.

But when the perp is a fed, there are some differences that could apply. 28 USC § 1442 provides that a federal officer, which covers an ICE agent, could have a state criminal prosecution moved to federal court. The point is that state courts might be biased in favor of state laws and against federal officers, and that federal courts would provide a more neutral forum. The statute does not cover all criminal prosecutions against federal officers, however.

(c) Solely for purposes of determining the propriety of removal under subsection (a), a law enforcement officer, who is the defendant in a criminal prosecution, shall be deemed to have been acting under the color of his office if the officer—

(1) protected an individual in the presence of the officer from a crime of violence;
(2) provided immediate assistance to an individual who suffered, or who was threatened with, bodily harm; or
(3) prevented the escape of any individual who the officer reasonably believed to have committed, or was about to commit, in the presence of the officer, a crime of violence that resulted in, or was likely to result in, death or serious bodily injury.

Would this cover the ICE agent who killed in self-defense? Absolutely. Would this cover the ICE agent who killed without justification? Probably not. The problem is that the outcome begs the question. If it was self-defense, it would not be criminal. If it was not self-defense, it would not be covered by § 1442. Former federal prosecutor Timothy Sini offers this explanation.

The federal judge tasked with overseeing the case would have to conduct a two-part analysis to determine whether the official enjoys immunity in the case. First, the judge would have to decide whether the agent was acting in the course of their official duties, which is a relatively low bar to pass.

But the second question is much more complex: it turns on whether the action taken was reasonable based on the totality of the circumstances on the ground. That question would be subject to an extensive inquiry that could involve witness testimony, video evidence and the like.

“And what is objectively reasonable under the particular circumstances is evaluated from the perspective of a reasonable officer on the scene and turns on those facts known to the officer at the precise moment,” he added.

What Sini is talking about isn’t criminal culpability, but civil liability under Graham v. Connor. As noted above, Graham has inexplicably weaseled its way into the prosecutorial consciousness to water down the culpability of cops for killing, creating a squishy test of objective and subjective reasonableness from the perspective of a cop on the scene. In other words, it wouldn’t matter how a lay juror perceives the facts, but how a cop would because they’re special and see threats mere mortals can’t see.

As a practical matter, however, an officer defendant charged with murder need only put an “expert” cop witness on the stand to explain why there was a threat to his life that demanded immediate deadly force. And lest we forget, there is a cottage industry that serves police officers charged with crimes to explain how the officer was objectively right to perceive a threat, even if it doesn’t look that way to anyone else.

Neither judges nor juries need accept the expert’s testimony or the officers defense. But most of the time, they do, and the case either never gets to trial or ends in a two-word verdict.