Inside DOJ’s Process for Opening Criminal Investigations of Public Officials

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In mid-January 2026, the Department of Justice opened criminal investigations into Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey for making public statements criticizing federal immigration enforcement operations.

The DOJ doesn’t publish a flowchart showing how federal prosecutors decide to open investigations into sitting governors and mayors. What exists instead is a set of internal guidelines—including documents such as the Justice Manual and Criminal Resource Manual—rules that are supposed to prevent using federal prosecutors to punish people for their political statements.

When career prosecutors consider investigating an elected official, they’re supposed to ask whether what happened is a serious federal crime. Whether the evidence is substantial, not merely technical. Whether bringing charges would be fair and appropriate. They’re supposed to be particularly cautious about cases involving official conduct by elected officials, because prosecuting elected officials can undermine democracy.

The statute DOJ is reportedly using is Section 372, which makes it illegal to conspire involving “force, intimidation, or threat” to prevent federal officers from doing their jobs. The government’s argument appears to be that by publicly opposing immigration raids and encouraging residents to protest, Walz and Frey prevented ICE agents from effectively working.

This would mean that political speech—even fierce political speech—becomes a federal crime when it inspires citizens to protest government actions.

What Happened in Minnesota

Mayor Frey used profanity-laced language demanding federal agents cease operations. Both officials encouraged peaceful protest while calling for an end to what they characterized as lawless federal operations.

That’s the conduct DOJ is investigating as potential conspiracy.

First Amendment Protections for Political Speech

The First Amendment protects political speech, including speech that criticizes government policies and speech that may inspire others to take action in response to that criticism. The government cannot punish protected speech simply because that speech causes others to act in ways the government dislikes.

Speech can only be punished as incitement when it directly encourages immediate illegal action. Simply criticizing government policy—even harshly—doesn’t count, even if it leads to protests.

For elected officials, the protection is even stronger. Governors and mayors have constitutionally-protected duties to serve as spokespersons for their constituents. They can’t be prosecuted for expressing opposition to federal policies, especially policies they believe harm the residents they represent.

Former federal prosecutor Harry Litman called the investigation “a complete non-start of a prosecution.”

DOJ Guidelines for Investigating Public Officials

The Justice Manual requires prosecutors to consider whether federal charges are appropriate when conduct could be addressed through other means, or whether pursuing charges would create an appearance of political motivation.

In the Walz-Frey case, there’s no indication Minnesota state law provides any basis for charges. The process for opening probes of public officials is supposed to involve review by multiple levels of DOJ management. Career prosecutors shouldn’t let politics influence their charging decisions.

When DOJ leaders publicly call the people they’re investigating terrorists, the safeguards meant to prevent political prosecutions have already broken down.

Pattern of Investigations Into Trump Critics

Governor Walz noted the pattern in his response: “Two days ago it was Elissa Slotkin. Last week it was Jerome Powell. Before that, Mark Kelly. Weaponizing the system and threatening political opponents is a dangerous, authoritarian tactic.”

Trump publicly demands prosecution of his opponents. DOJ opens probes. In September 2025, Trump blasted Attorney General Bondi on social media for not charging Comey, James, and Congressman Adam Schiff, writing “JUSTICE MUST BE SERVED.” Within days, prosecutors planned to seek indictments against both Comey and James.

This is the context in which DOJ opened probes into Walz and Frey for criticizing federal operations.

What Section 372 Actually Criminalizes

The federal law was designed to stop violent mobs and organized intimidation campaigns. The law requires proof that people worked together using force, intimidation, or threats—and courts have said this law only applies to actual threats of violence or physical interference with operations.

DOJ is arguing that public criticism and calls for protest count as intimidation that prevents officers from performing duties. But courts have consistently ruled that Section 372 requires interference with federal operations, not speech that might inspire others to protest.

If DOJ can prosecute officials for publicly criticizing federal operations when people then protest, any state or local official who publicly opposed federal operations could face conspiracy charges. That would scare officials into silence and shift authority away from states toward the federal government.

Federal Court Validation of Officials’ Concerns

A federal judge found sufficient constitutional concerns to issue a court order limiting federal agents’ conduct. This suggests Walz and Frey’s concerns about federal operations were legitimate, not obstruction.

DOJ is investigating them anyway.

Congressional Response and Its Limits

Representative Robin Kelly introduced articles of impeachment against DHS Secretary Kristi Noem based on constitutional violations during the Minnesota operations. House Democrats demanded the Judiciary Committee investigate DOJ’s probe of Powell, characterizing it as “blatant abuse of DOJ’s prosecutorial power.”

Congress can’t effectively oversee the president when one party controls both chambers and doesn’t want to constrain their own president. Senators can complain, but that doesn’t stop probes. Impeachment requires a majority vote, which Democrats don’t have.

Federalism and State Authority

The Constitution divides authority between the federal government and states. The federal government controls immigration. States have the authority to protect their residents’ health and safety. This creates conflict when federal agents operate in states without working with state officials.

From the state’s perspective, Walz’s criticism of federal operations and calls to stop them are legitimate exercises of state authority, not obstruction. The Tenth Amendment says states keep any powers the Constitution doesn’t give to the federal government. State officials have a constitutional obligation to protect their citizens’ rights, including fair treatment under the law.

Prosecuting state officials for using their authority could itself be unconstitutional by silencing states.

The Legal Process Ahead

As of mid-January 2026, the probes are beginning. Mayor Frey stated his office hadn’t yet received a subpoena but indicated willingness to comply while emphasizing “we have done nothing wrong.” Governor Walz similarly indicated his office hadn’t received notice of the probe.

If subpoenas are issued, Walz and Frey can respond or challenge them in court. Their lawyers will likely argue the subpoenas violate constitutional protections for political speech and that probes based on protected speech violate First Amendment rights.

If DOJ proceeds to grand jury indictment, officials would challenge the indictment through motions to dismiss, arguing charges are unconstitutional on their face or lack sufficient evidence. Former prosecutors say any obstruction charges based purely on political speech would be thrown out.

But even if officials are ultimately cleared, the probe itself causes serious damage. Responding to a federal probe is expensive, personally stressful, and makes it hard for them to do their jobs. Probes and indictments damage political careers and reputations even when charges are dropped.

This dynamic—where starting a federal probe causes serious harm even if conviction is unlikely—is why critics call the probes political intimidation meant to scare other state and local officials away from challenging federal policies.

Chilling Effect on State and Local Officials

Other state and local officials, seeing that federal prosecutors will investigate officials for criticizing operations, may be afraid to speak up about similar concerns in their jurisdictions.

If governors and mayors are afraid to publicly oppose federal policies because of federal prosecution, the constitutional system of checks and balances breaks down.

Local police need trust with immigrant communities to do their jobs. That trust depends on cooperation. When federal operations disrupt those relationships and scare people, local officials have a duty to speak up for their residents. Prosecutors shouldn’t be able to charge officials for speaking up because it might make people less willing to help federal agents.

Historical Context: Prosecuting Political Speech

Throughout American history, there have been famous cases where presidents or federal prosecutors went after political opponents. But those cases involved crimes like abuse of office, tax evasion, corruption, or lying under oath—rather than prosecuting people for criticizing government policy.

During Trump’s first term, the administration involved conflict between federal authorities and state and local officials who refused to help ICE. But even in those disputes, the Trump administration didn’t prosecute sanctuary city officials for their statements. Instead, it tried to cut federal funding to sanctuary cities, but federal courts repeatedly blocked this as going beyond presidential authority.

The Trump administration didn’t prosecute officials for statements in its first term, but is doing so now. This shows an escalation in using federal law for political purposes.

Expanding Executive Power

During his first hundred days, Trump issued 124 executive orders. Many were challenged in court as going beyond his constitutional authority.

Trump has dramatically expanded use of the pardon power, granting clemency to nearly all 1,600 people charged in the January 6 Capitol riot. He’s sent National Guard troops to multiple cities without state governors’ permission, which federal courts have said violates the Constitution.

Trump has threatened to use the Insurrection Act—a rarely-used 1807 law—to send military troops to Minnesota to stop protests, even though federal courts said he went beyond his authority when he tried similar deployments in his first term.

In this context, the DOJ probes are another example of expanding executive authority to punish political speech it doesn’t like.

Political Accountability as the Only Remedy

At its core, this case is about whether prosecutors have limits on their authority. Federal prosecutors have enormous authority to investigate and indict. Historically, courts have stayed out of prosecutors’ decisions about who to investigate or what charges to bring.

Courts give prosecutors this freedom because prosecutors are supposed to be neutral professionals focused on law enforcement, not politics. But in this case, the Attorney General and Deputy Attorney General have made inflammatory statements about the people they’re investigating. This raises serious questions about whether they’re using their authority for politics.

The only way to stop prosecutors from abusing their authority is through political accountability. The Attorney General works for the President and can be fired. The President can be impeached if he uses federal prosecutors for political purposes. Congress can oversee DOJ and can cut funding or take other steps to stop prosecutorial abuse.

But all these remedies depend on politics. They only work if Congress is willing to oversee DOJ and the President is willing to control his own people. When one party controls Congress and the presidency, the safeguards against prosecutorial abuse may fail.

Constitutional Limits on Prosecutorial Power

Legal experts across the political spectrum say prosecuting people for protected political speech violates the First Amendment. Former federal prosecutors from both parties say the probes have no legal basis. Federal courts have expressed concern about the federal agents’ conduct that Walz and Frey criticized, and issued court orders that support their concerns. Multiple senators say the probes undermine democracy and the rule of law.

What’s unclear is whether the legal and political safeguards will be enough to stop prosecutorial abuse when the President has publicly attacked the targets and the safeguards themselves are weakened.

The coming weeks will show whether Walz and Frey get indicted and whether constitutional limits on prosecutors still matter or whether this administration has broken them.

The process is supposed to involve careful consideration of whether conduct is a crime, whether evidence is strong, and whether prosecution is fair. In Minnesota, that process seems to have been replaced by a decision to punish political speech the administration doesn’t like, regardless of the Constitution.

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