The DOJ Has Investigated Governors Before. Here’s What Happened.

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The Justice Department’s investigation into Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey has sparked a question: Has the DOJ done this before? Federal prosecutors have investigated plenty of governors. They’ve convicted some, lost cases against others, and watched the Supreme Court overturn convictions that pushed too far. But none of those cases look quite like this one.

The Investigation’s Theory

The theory: The governor and mayor made public statements criticizing ICE operations in Minnesota. Those statements led to protests and calls for local police not to cooperate with federal immigration enforcement. Therefore, the officials conspired to obstruct federal law enforcement.

That’s not how obstruction charges usually work.

Past Governor Prosecutions: McDonnell and Corruption Standards

Bob McDonnell, the former Virginia governor whose case went to the Supreme Court, was convicted in 2014 for accepting gifts and loans from a businessman in exchange for government favors—meetings, access, introductions to state officials. The Supreme Court’s decision matters here: if prosecutors cannot criminalize meetings and access—actual official acts—it’s difficult to see how they’d criminalize political speech criticizing federal policy.

The Siegelman Case: Prosecutorial Overreach

Don Siegelman, the former Alabama governor, was convicted in 2006 of bribery and mail fraud related to campaign contributions. Federal judges raised concerns about whether prosecutors met basic evidentiary standards. The facts were ambiguous—did Siegelman improperly solicit contributions, or did donors voluntarily support political causes they believed in?

The Siegelman case became an example of what happens when federal prosecutors use fuzzy facts about political fundraising to target state executives from the opposing party. The controversy around his prosecution illustrates how easily these investigations can appear as partisan warfare rather than legitimate law enforcement.

The Pattern of Successful Convictions

Every successful prosecution of governors involved traditional crimes: bribery, fraud, schemes to enrich themselves or their political allies. None involved prosecuting officials for their public statements about federal policy. None tried to criminalize political speech that generated public opposition to federal enforcement operations.

That’s the precedent—or rather, the lack of precedent for what’s happening to Walz and Frey.

First Amendment Protections for Political Speech

The Supreme Court established in Brandenburg v. Ohio that speech can only be criminalized when it’s “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Criticizing ICE operations, even harshly, doesn’t meet this standard. Calling for non-cooperation with federal immigration enforcement as a matter of policy doesn’t meet it.

Public officials retain the right to criticize government policies, including federal policies and federal enforcement operations in their jurisdictions. When officials’ criticism provokes protests or public opposition, that’s democracy working as designed, not criminal conspiracy.

State Sovereignty and Federalism

States retain sovereignty over governance within their borders, including the authority to criticize federal policies, direct state law enforcement resources, and conduct independent oversight of federal operations in their jurisdictions.

Federal prosecution of state officials designed to punish them for criticizing federal enforcement operations represents an incursion on state sovereignty. It’s the federal government using criminal law to silence state officials who disagree with federal policy.

Current Status of the Investigations

As of the reporting date, subpoenas had not yet been issued to Walz and Frey, though they were anticipated. Attorney General Pam Bondi has made ambiguous statements about the investigations. Senator Amy Klobuchar called the subpoenas “an assault on our democracy and the rule of law.”

Constitutional Defenses Available

If the Walz and Frey investigations proceed to indictment and trial, defendants would have strong constitutional defenses. They’d argue their conduct doesn’t meet the legal elements of obstruction or conspiracy. They’d cite Supreme Court precedent limiting the reach of federal criminal statutes against state officials. They’d point out that their statements are protected political speech.

The historical record suggests courts have been skeptical of expansive prosecutorial theories, especially when they implicate political speech and state sovereign authority.

Broader Implications for State Officials

If prosecutors can successfully argue that public criticism of federal enforcement operations constitutes criminal obstruction, then any state official who opposes federal policy faces potential criminal liability. Governors who criticize federal immigration enforcement, attorneys general who challenge federal regulations, and local officials who speak out against federal actions would all be vulnerable.

This would fundamentally change the relationship between state and federal authority and create a chilling effect on legitimate political speech.

The historical record of DOJ investigations into governors shows that prosecutors have pursued corruption, fraud, bribery, and schemes to enrich officials at public expense—not political speech. The question now is whether that historical pattern will hold and whether courts will enforce constitutional limits on prosecutorial power.

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