Anyone Who Tells You That We Can't Put Criminals in Jail Until We Win an Election Is Complicit in the Murder of Our Democracy

The American Reformation

Imagine a president who spent decades molesting children and recruiting victims for a human trafficking network. Imagine his closest allies, oligarchs, cabinet members, people who now hold positions of federal power, were part of it. Imagine that hostile foreign governments knew about it, documented it, and used it as leverage, not as a threat exactly, but as a choice they put in front of him: we help you become the most powerful person in the world, or we release what we have and destroy you. He took the deal. The people around him knew he took the deal and said nothing because their own exposure was bound up in his. The FBI knew. The DOJ knew. The federal government mobilized nearly 1,000 agents and spent close to a million dollars in overtime during Phase 1 alone to process and redact files related to the investigation.¹ Virginia Giuffre’s brother, Skye Roberts, described what happened when those files were released: “They’re redacting the names of perpetrators and they’re unredacting the names of victims, quite the opposite of what the law was meant to do.”¹ Federal officials lied to Congress about what they withheld. The people who helped cover it up now run the institutions designed to hold them accountable.

Now imagine that none of that is the end of the story. In fact, it’s just the beginning of an American Reformation.

Before we go any further, we should clearly set the foundation. There is no legal doctrine in American history that says your employer determines which criminal statutes apply to you. There’s no precedent for that. There’s 250 years of consistent constitutional and criminal law saying the opposite.

State prosecutors have criminal jurisdiction over crimes that harm their residents. The abuse happened to people who live in states. The trafficking network operated within state borders. The foreign interference targeted state residents and state institutions. The obstruction produced harm within states. State grand juries can subpoena what the federal government has spent years and millions of dollars trying to bury. State prosecutors can charge the agents who obstructed justice. State RICO statutes reach the entire enterprise. No presidential pardon touches any of it.

The founders built this into the constitutional structure because they understood exactly what it looks like when the people running the accountability system are the ones who need to be held accountable. Two sovereigns. Independent jurisdiction. No single institution able to shut down accountability entirely because the authority to act is distributed across states and thousands of elected prosecutors and attorneys general and governors who swore an oath to the Constitution, not to any single administration.

The option has always been there. It has never been taken away. And it is available right now.

This is the third piece in The American Reformation, a public series built around the working paper “The Constitutional Architecture of State Opposition: A Taxonomy of Sovereign Posture Under Federal Authoritarian Capture and Electoral Autocracy,” currently available for public review and forthcoming in peer-reviewed journals.² Part 1 covered Tier 0 and Tier 1: cooperation as the baseline and then states refusing to help the federal government do harmful or unlawful things. Part 2 covered Tier 2: building parallel financial infrastructure so states can protect their people regardless of what the federal government does or refuses to do. This piece covers Tier 3, oppositional federalism, where cities and states start going on offense.

Tier 3’s posture toward the federal government is: we are coming after you.

Alexander Hamilton wrote in Federalist No. 28 in December 1787 exactly what that posture meant and why the constitutional structure requires it: “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government; and which, against the usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”³ He was describing the architecture of rival sovereigns, each with the standing and the obligation to check the other. “Power being almost always the rival of power,” he wrote in the same essay, “the General Government will at all times stand ready to check the usurpations of the state governments; and these will have the same disposition towards the General Government.”³ Madison confirmed the structural logic in Federalist No. 51: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”⁴ The framers were building a system intended to prevent lawless capture with as many safeguards and checks as possible. They made it clear, the states are a check to the federal government as much as the federal government would be a check against state capture.

To use a metaphor: when mountain climbers rope up, they build in redundancies at every point. If one anchor fails, you survive. If three anchors fail, you survive. The system is designed so that even catastrophic failure at multiple points cannot bring the whole thing down, so long as the rules are followed and the remaining anchors hold. The founders applied the same logic of building multiple layers of redundancy around points of failure. No single institution failing, no single branch captured, no single administration gone rogue can collapse the entire structure, because the authority to act is distributed across multiple sovereigns who exist independently of each other.

That system rests on dual sovereignty, confirmed most recently by the Supreme Court in Gamble v. United States in 2019 by a margin of seven to two.⁵ States have their own laws and their own independent authority to investigate and enforce those laws. Every governor, attorney general, and state legislator swears an oath under Article VI to support the Constitution itself, not federal directives, not whoever currently runs the federal government, and definitely not to DOJ memos.⁷ When federal conduct produces harm within a state’s borders, that oath does not permit deference. It requires action.

The mechanism is uncontentious among legal scholars and even Supreme Court rulings, despite the frequency with which a county prosecutor might say “that’s a federal matter” because what they’re really saying is “traditionally we could count on the federal government to handle that, so I don’t have to get involved.” That logic just doesn’t apply anymore.

As Justice Holmes confirmed in Johnson v. Maryland in 1920, a federal employee “does not secure a general immunity from state law while acting in the course of his employment.”⁸ Courts apply a two-part test derived from the Supreme Court’s 1890 decision in In re Neagle: immunity attaches only when the federal actor performed an act authorized by federal law and did no more than necessary and proper to fulfill that duty.⁹ Conduct that falls outside either prong carries no immunity. When a state charges a federal agent and the agent removes the case to federal court, the charge remains a state crime prosecuted under state law. A conviction is a state conviction the president cannot pardon.

Tier 3 reaches the full range of federal misconduct. State RICO statutes reach criminal enterprises that operated within state borders. State bribery and corruption statutes reach payments that federal law no longer covers; when the Supreme Court held in Snyder v. United States in 2024 that the primary federal anti-corruption statute does not criminalize gratuities paid after an official act, it explicitly left that conduct to states.¹⁰ For digital crimes, fraud, identity theft, and privacy violations, jurisdiction follows the victim. A federal official who accesses data belonging to state residents without authorization, directs a fraud that harms people within a state, or participates in a conspiracy that produces effects within state borders is subject to prosecution in the state where the harm landed. Obstruction of a state criminal investigation is itself a state crime, and the charge lands on the specific person who decided to obstruct. Nobody is above state criminal law for conduct that harms state residents.

A persistent misconception holds that none of this applies to a sitting president. That belief rests entirely on a DOJ policy memo, not law, not a court ruling, not the Constitution. The Office of Legal Counsel issued internal memos in 1973 and 2000 concluding that prosecution of a sitting president would unconstitutionally interfere with executive functions. No court has ever adopted this conclusion. The Supreme Court has never ruled on whether a sitting president can be indicted. Constitutional law professor Kim Wehle, writing in the Stanford Law and Policy Review, concluded the OLC memos “have no force of law and could be overturned by the attorney general at any time.”¹¹ Yes, the same Attorney General who is appointed by the President. Constitutional scholars have uniformly concluded that nothing in the text or the history of the Constitution bars the criminal prosecution of a sitting president.¹² Hamilton put it plainly in Federalist No. 69: a president, unlike a king, would be “liable to prosecution and punishment in the ordinary course of law.”¹³

The Supreme Court held in Trump v. United States in 2024 that presidents enjoy absolute immunity from criminal prosecution for official acts within their core constitutional authority.²⁶ Chief Justice Roberts wrote the majority. Two years earlier, in New York State Rifle and Pistol Association v. Bruen, Roberts wrote that when it comes to constitutional interpretation, “Times have changed. The Constitution hasn’t.”²⁷ He was right. Hamilton wrote in Federalist No. 69 that a president, unlike a king, would be “liable to prosecution and punishment in the ordinary course of law.”¹³ That is the founding-era text. That is the history and tradition Roberts said must govern constitutional interpretation. By his own standard, the immunity he invented has no constitutional foundation. States, operating under their own sovereign authority and their own constitutions, are not bound by a doctrine the founders explicitly rejected.

If you cannot prosecute someone because of the office they hold, you have made them a king. We did not leave England to build a country where the person at the top answers to nobody. We left England because the person at the top answered to nobody. Prince Andrew lost his royal titles over his conduct. The United States has decided the president of a republic deserves more protection from criminal accountability than a British royal. States are not bound by that decision.

New York convicted Donald Trump on 34 felony counts in May 2024.¹⁴ The conduct happened in 2016 and 2017. The DA's investigation waited until he was out of office. The indictment came in March 2023. The trial happened in spring 2024. The jury found him guilty on every count. The court then delayed sentencing repeatedly, explicitly because of the election and then because of the incoming presidency. Eight months. When he won, the court handed him an unconditional discharge. No jail. No probation. No fine. The system found him guilty and then decided accountability was no longer appropriate for a president-elect. This is what a criminal justice system looks like when it has been designed with a hole in it big enough to drive a presidency through.

Fulton County District Attorney Fani Willis spent two years building a RICO case against the president and 18 co-defendants for their efforts to overturn Georgia’s 2020 election. A grand jury indicted all 19 in August 2023. Four co-defendants pleaded guilty and agreed to testify.¹⁵ During this process Trump’s allies spent eighteen months investigating Willis personally, surfacing a consensual private relationship she had with Nathan Wade, a special prosecutor she had hired. Wade recused himself when the relationship became public. A judge found no evidence Willis financially benefited from it. The Georgia Court of Appeals disqualified her anyway in December 2024 on an “appearance of impropriety” which was a finding that legal observers widely described as unprecedented. The Georgia Supreme Court declined to hear her appeal.

After watching what happened to DA Willis, every attorney contacted to replace her declined. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, appointed himself, received 101 boxes of documents and an eight-terabyte hard drive of the complete investigative file, declared he had not had sufficient time to review it, and dismissed the entire case less than two weeks later.¹⁶ His stated reason was that the case belonged in federal court. The federal cases had already been dropped. Investigative journalist Marcy Wheeler documented that Skandalakis misrepresented why: Special Counsel Jack Smith dropped the federal prosecution because DOJ policy prohibits prosecuting a sitting president, not because of problems with the evidence.¹⁷ Skandalakis converted a policy decision into an evidentiary conclusion and used it to bury a completed state RICO case with four guilty pleas, cooperating witnesses, and eight terabytes of evidence.

Every prosecutor who declined to take that case had just watched eighteen months of opposition research deployed against a sitting DA for the crime of doing her job. Not the case. Her. They didn’t want to be next. It is the same calculation playing out in Minneapolis.

Your local police officer does what Jonathan Ross did and he gets charged in a couple of days. Ross was identified by the Star Tribune as the ICE agent who shot and killed Renée Good, 37, a mother of three, on January 7, 2026, in Minneapolis.¹⁸ He has not been charged. The agents who shot and killed Alex Pretti, 37, a VA hospital ICU nurse, on January 24, 2026, have not been publicly identified.¹⁹ Video shows agents removing a firearm from Pretti roughly one second before he was shot multiple times while pinned face-down by approximately six officers. The federal government’s own account of a third Minneapolis shooting collapsed in court. Two agents were placed on leave for lying under oath.

If Ross and the agents who killed Pretti worked for the Saint Paul Police Department, there would be no months-long wait, no federal lawsuit to compel evidence sharing before filing charges. There would be charges, filed on the evidence already available, because that evidence would be sufficient in any local prosecution and everyone involved knows it. Derek Chauvin was charged with murder four days after George Floyd died on the basis of bystander video and a preliminary medical examiner finding.²⁰ Hennepin County Attorney Mary Moriarty said publicly in February 2026 that her office has gathered enough evidence to consider charging decisions with or without federal cooperation, and that there is no mystery about how Good and Pretti died.²¹ The deference extended to federal agents carries no legal foundation that does not apply equally to local officers. It is a choice. The conduct is either murder or it isn’t. The scope of duties is either exceeded or it isn’t. A local officer whose account of events collapses under scrutiny, whose colleagues are placed on leave for lying under oath about what happened, gets charged. The same conduct by a federal officer suddenly raises questions about whether their duties were perhaps broader, their authority perhaps murkier, their actions perhaps harder to evaluate. That is a political distinction rather than a legal one.

The federal government refuses to enforce the law against its own people. And state officials who have the authority and the obligation to step into that gap are extending a deference that the founders never required, that no court has ever mandated, and that the current moment has made indefensible.

States have been attempting to close that gap throughout American history, and the doctrine has survived every attempt. In the 1870s, Southern states charged federal revenue officers with homicide during Reconstruction enforcement operations. Federal courts intervened but never held that states lacked jurisdiction. During Prohibition, multiple states brought charges against federal agents for killings during enforcement operations. In 1962, Mississippi indicted Chief Marshal James McShane for inciting a riot after federal marshals enforced desegregation at the University of Mississippi at gunpoint; a federal judge dismissed on the specific facts two years later, not on any categorical bar to state jurisdiction.²² At Ruby Ridge in 1997, Idaho charged FBI sniper Lon Horiuchi with involuntary manslaughter for shooting Vicki Weaver as she stood holding her infant. The en banc Ninth Circuit ruled six to five that the case should go to trial. A newly elected county prosecutor chose to drop the charges the following week.²³ In 2020, Fairfax County indicted two US Park Police officers for the killing of Bijan Ghaisar, an unarmed 25-year-old. The case was removed to federal court where Judge Claude Hilton dismissed it, ruling the officers' actions were "necessary and proper" under the Supremacy Clause. The Virginia Attorney General appealed. A new attorney general took office and chose to drop the appeal.²⁴ The doctrine has never been held to categorically bar state prosecution of a federal agent. The prosecutions ended because elected officials made political decisions to stop them.

On January 28, 2026, district attorneys from nine jurisdictions announced the Fight Against Federal Overreach coalition to pursue state criminal charges against federal agents who break state law.²⁵ As of this writing, the coalition has filed no charges.

Republicans have spent fifty years pushing legal doctrine in the direction they believe in. They brought cases they knew were long shots. They appealed losses that looked unwinnable. They built precedent incrementally and never waited for permission. That is how Roe fell. That is how Citizens United happened. That is how qualified immunity expanded into what it is today. There is nothing that says this authority cannot be pressed in the direction of justice with the same persistence. There is 250 years of precedent saying it can and it should.

When one hand decides to stop doing its job, the other no longer needs to defer to it. We do not get to have a free and fair country if entire swaths of our criminal justice system refuses to enforce the law based on wealth, position, power, inconvenience, or intimidation. We are in a constitutional crisis produced by a refusal to enforce the law, not because we lack sufficient laws. The laws exist. The authority exists. The constitutional obligation exists. Just because it is not easy does not mean it is not right, and it is the job of every elected prosecutor, every attorney general, every governor who swore an oath to the Constitution to move toward justice even when the path is hard. Especially when the path is hard.

Your county prosecutor has a phone and an office and an election cycle. Your state attorney general has the same. Your governor has the same. They have the authority. What changes the calculation is constituents who understand what these officials hold and are willing to demand they use it. If you find this information valuable, share it, send it directly to someone you know, and tell them why they should read it.

Tier 3 goes on offense. Tier 4 goes further. Where Tier 3 imposes personal consequences through prosecution, Tier 4 builds competing legal regimes that directly contradict specific federal law or directives, and in its most active form moves to stop what the federal government is doing when the threshold conditions of constitutional emergency have been met. That is the subject of the next piece in this series.

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Notes

¹ Leopold, J. (2025, November 25). FBI spent nearly $1M redacting Epstein files [Bloomberg News]; Snopes.com. (2025, December 24). FBI, DOJ paid nearly $1M in overtime to agents redacting Epstein files. https://www.snopes.com/fact-check/fbi-overtime-epstein-files/; Roberts, S. quoted in CBS News. (2026, February). Massive trove of Epstein files released by DOJ. https://www.cbsnews.com/live-updates/epstein-files-released-doj-2026/

² Armitage, C. (2026). The constitutional architecture of state opposition: A taxonomy of sovereign posture under federal authoritarian capture and electoral autocracy [Working paper].

³ The Federalist No. 28 (A. Hamilton, Dec. 26, 1787).

⁴ The Federalist No. 51 (J. Madison, Feb. 6, 1788).

⁵ Gamble v. United States, 587 U.S. 111 (2019).

⁶ U.S. Const. art. II, § 2, cl. 1; Ex parte Grossman, 267 U.S. 87, 113 (1925).

⁷ U.S. Const. art. VI, cl. 3.

⁸ Johnson v. Maryland, 254 U.S. 51, 57 (1920).

⁹ In re Neagle, 135 U.S. 1 (1890); Kentucky v. Long, 837 F.2d 727, 737 (6th Cir. 1988); Godar, B. (2025, November 6). Are federal officials immune from state prosecution? Lawfare. https://www.lawfaremedia.org/article/are-federal-officials-immune-from-state-prosecution

¹⁰ Snyder v. United States, 603 U.S. 1 (2024).

¹¹ Wehle, K. L. (2020). “Law and” the OLC’s Article II immunity memos. Stanford Law & Policy Review, 32, 1. https://law.stanford.edu/wp-content/uploads/2021/03/2020-32-Stan.-L.-Poly.-Rev.-1-1.pdf

¹² Chaiken, E., & Ghali, A. (2017, August 1). US presidents are not immune from criminal prosecution. https://chaikenghali.com/wp-content/uploads/2020/10/2017.08.01-Presidents.Prosecution.pdf

¹³ The Federalist No. 69 (A. Hamilton, Mar. 14, 1788).

¹⁴ People v. Trump, Ind. No. 71543-23 (N.Y. Sup. Ct. 2024).

¹⁵ ABC News. (2025, November 27). Georgia prosecutor drops election interference case against Trump, others. https://abcnews.com/US/georgia-prosecutor-drops-election-interference-case-trump/story?id=127898245

¹⁶ Georgia Recorder. (2025, November 27). Fulton County election interference case against Trump and his allies is dismissed. https://georgiarecorder.com/2025/11/26/fulton-county-election-interference-case-against-trump-and-his-allies-is-dismissed/; Time. (2025, November 14). Georgia election interference case against Trump has a new prosecutor. https://time.com/7334193/trump-georgia-election-interference-case-new-prosecutor/

¹⁷ Wheeler, M. (2025, November 26). In dismissing Georgia RICO case, Peter Skandalakis fabricates Jack Smith conclusion. Emptywheel. https://www.emptywheel.net/2025/11/26/in-dismissing-georgia-rico-case-peter-skandalakis-fabricates-jack-smith-conclusion/

¹⁸ Star Tribune. (2026, January). ICE agent Jonathan Ross identified in Renée Good shooting. Minneapolis Star Tribune.

¹⁹ NPR. (2026, January 25). Videos and eyewitnesses refute federal account of Minneapolis shooting. https://www.npr.org/2026/01/25/nx-s1-5687875/minneapolis-shooting-minnesota-ice-alex-pretti-dhs-investigation

²⁰ State v. Chauvin, 27-CR-20-12646 (Minn. 4th Dist. Ct., charges filed May 29, 2020).

²¹ Star Tribune. (2026, February 18). State “in good shape” to consider charging federal agents in slayings of Good, Pretti, Moriarty says. https://www.startribune.com/moriarty-state-in-good-shape-to-consider-charging-federal-agents-in-slayings-of-good-pretti/601584342

²² In re Petition of McShane, 235 F. Supp. 262 (N.D. Miss. 1964).

²³ Idaho v. Horiuchi, 255 F.3d 1137 (9th Cir. 2001) (en banc), vacated as moot; Famous Trials. (n.d.). State of Idaho v. Lon T. Horiuchi. https://famous-trials.com/rubyridge/1142-idahovhoriuchi

²⁴ Washington Post. (2021, October 22). Judge Claude Hilton dismisses charges against Park Police officers in Bijan Ghaisar slaying. https://www.washingtonpost.com/dc-md-va/2021/10/22/ghaisar-case-dismissed/; Patch. (2022). VA attorney general drops appeal of police shooting of unarmed man. https://patch.com/virginia/oldtownalexandria/va-attorney-general-drops-appeal-police-shooting-unarmed-man

²⁵ Philadelphia District Attorney’s Office. (2026, January 28). District Attorney Larry Krasner, reformed city prosecutors, announce the launch of the F.A.F.O. coalition. https://phillyda.org/news/district-attorney-larry-krasner-reformed-city-prosecutors-announce-the-launch-of-the-f-a-f-o-coalition-to-support-prosecution-against-federal-agents-who-violate-state-laws/