History shows prosecuting officials challenging ICE raids won't be easy

The Hill

6 days ago

President Trump's promised retribution against what he has called the 'core of the Democrat Power Center' includes siccing thousands of ICE agents on 'blue cities.' The assault has already led to the prosecution of public officials who challenged his abusive immigration seizures.
But the Trump administration will likely lose those cases, thanks to the strong American tradition of jury resistance, sometimes called nullification, dating to before the Civil War.
In New Jersey, Rep. LaMonica McIver (D-N.J.) was indicted for allegedly interfering with the arrest of Newark Mayor Ras Baraka during an immigration protest rally at an ICE detention center. If convicted of the two forcible felonies, McIver would face a maximum sentence of eight years.
McIver denies the accusations, pointing out that she had a legal right to inspect the facility as a member of Congress. She has raised the Constitution's speech and debate clause as a defense.
In Wisconsin, the Trump administration brought criminal charges against Milwaukee County Court Judge Hannah Dugan for allegedly preventing the arrest of a migrant in her courtroom. Dugan pleaded not guilty and moved to dismiss the case on the basis of judicial immunity.
McIver's and Dugan's defenses are robust and may well prevail. But even if the prosecutors manage to overcome the immunity arguments, they will still have to face juries in Newark and Milwaukee, two of the heavily Democratic cities reviled by Trump.
As detailed in my book, 'Fugitive Justice: Runaways, Rescuers, and Slavery on Trial,' American juries have historically refused to enforce unpopular laws against sympathetic defendants, in cases far more extreme than McIver's or Dugan's.
In September 1851, shortly after the passage of the infamous Fugitive Slave Act, a band of slavehunters from Maryland, holding a federal warrant and under the leadership of a deputy U.S. marshal, attempted to apprehend four alleged runaways near the village of Christiana, Pennsylvania.
When the posse's presence was discovered, the local Black community, along with some white allies, rallied to the defense of the fugitives and drove it away in a hail of rocks and bullets. One would-be kidnapper was killed in the melee, and the deputy marshal was humiliated. The fugitives escaped to Canada with the assistance of Frederick Douglass.
The Millard Fillmore administration obtained indictments against 41 defendants — 36 Black and five white — accusing them of forming a 'traitorous combination' to 'prevent the execution' of the Fugitive Slave Act. The formal charge was treason, which carried the death penalty.
The first defendant brought to trial — ironically, in Philadelphia's Constitution Hall — was a white miller named Castner Hanway.
The prosecutors wrongly claimed that Hanway had been a mastermind of the rebellion, because they could not believe Black people capable of organizing a successful resistance against heavily armed whites.
Hanway was represented by Rep. Thaddeus Stevens (R-Pa.), one of the great abolition advocates of his time and later author of the 13th Amendment.
Stevens put on a defense that emphasized the frequent 'kidnapping and carrying away of colored persons' to nearby Maryland. As an explanation for the resistance, he noted the seizure of 'Black people … by force and violence and great injury and malice, without authority from any person on earth.'
It took the jury only 15 minutes to acquit Hanway. Recognizing the futility of proceeding, the prosecution eventually dropped the charges against all defendants.
Also in 1851, an alleged fugitive named Shadrach Minkins was arrested in Boston by agents operating under the Fugitive Slave Act. He was hustled into a federal courtroom where abolitionist lawyers volunteered to represent him.
As the court convened the next day, about 20 Black men shoved their way through the doors and carried Minkins into the street. Onlookers cheered while 'two powerful fellows hurried him through the square,' later to be taken by wagon to Canada.
Two of the most important leaders of Boston's free Black community were arrested for violating the Fugitive Slave Act: a prominent merchant named Lewis Hayden and attorney Robert Morris, one of the first Black lawyers in the U.S., as well as a white newspaper editor named Elizur Wright.
All three defendants were represented by Richard Henry Dana, author of the memoir 'Two Years before the Mast,' and scion of one of Boston's oldest families.
Despite substantial evidence of the defendants' participation in the rescue, there were no convictions, with two acquittals and a hung jury.
As tensions increased between North and South, there were fizzled prosecutions in Syracuse, Milwaukee, again in Boston, and elsewhere. Even when prosecutions succeeded, sentencing judges could be unusually lenient.
More important than any of the individual outcomes was the political movement built around the Fugitive Slave Act trials.
Before the Fugitive Slave Act of 1850, many northerners were content to condemn enslavement from a distance, expressing disapproval but taking no action to oppose it.
Afterward, the repeated arrests of alleged runaways and the trials that followed, of both fugitives and rescuers, made it impossible to ignore the federal government's intrusive role in enforcing human bondage.
The McIver and Dugan prosecutors will have to contend with potential jurors appalled by Trump's indiscriminate pursuit of migrants, just as jurors in antebellum Boston and Philadelphia were appalled by the kidnapping of fugitives and arrests of rescuers.
Defense counsel will surely highlight the hypocrisy of prosecuting McIver and Dugan for minor incidents, versus Trump's mass pardons of the Jan. 6 insurrectionists.
In the 1850s, northern opposition to the spread of slavery, sharpened by confrontations with slave hunters and federal marshals, led to Abraham Lincoln's election in 1860.
Will the prosecution of Democratic officeholders and the arrests of countless migrants by masked Immigration and Customs Enforcement agents have the same impact on the mid-term elections of 2026?
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the author of 'Fugitive Justice: Runaways, Rescuers, and Slavery on Trial' and other books on abolitionist lawyers and political trials.