The Trump Regime’s Arrest Of Mayor Baraka: Will The Prosecution Succeed?
Yesterday Newark Mayor Ras Baraka was arrested for allegedly trespassing at a privately run ICE detention facility in his city. By Baraka’s account, he was legally there to serve citations from the city’s fire officials alleging the facility was violating city codes. The government claims Baraka disregarded clear orders to leave. I will review the undisputed facts, as evidenced by video and third party reporting.
- Baraka’s claim that he was there to serve notice of code violations is credible. He attempted to do so the day before resulting in a “tense stand off.”
- Baraka entered the outer area of the facility with three Democratic members of Congress who sought to exercise their statutory right of Congressional oversight.
- At some point Baraka was told he could not be there with the members of Congress and was told to leave.
- At some point Baraka did leave and went to the public area outside the facility.
- Department of Homeland Security agents, many of them masked, left the facility and arrested Baraka outside of the facility, on public property. This fact alone is, on the merits, a very bad fact for the prosecution.
- DHS agents leaving the facility, to arrest Baraka in the midst of a large group of protesters, created a confused and chaotic situation for all involved as protesters scuffled with the agents.
- The United States Attorney for the District of New Jersey, former Trump personal attorney Alina Habba, publicly tweeted that Baraka “committed trespass,” and chose to “disregard the law,” after receiving “multiple warnings” to leave the facility. This tweet alone serves as a basis to dismiss the case (see below).
The trespass case against Baraka suffers an obvious problem on the merits. The government claims Baraka refused to leave when told, but he did leave and as a consequence it was the agents who had to leave the facility to arrest him in public space. I won’t say that cannot be overcome, but that is going to make this a much more difficult case to win before a jury, and depending on other facts, could support dismissal by the judge. The government will likely claim he did not timely leave when told, but the fact that they did not arrest him at that time, but waited until he was clearly no longer possibly trespassing, will weigh against any effort to argue criminal trespass.
Baraka’s claim that he was acting in his duties as mayor also complicates the prosecution. His argument that he was serving notice of code violations provides a legal excuse for him to be there. It undermines the government’s claim that Baraka acted intentionally, that he willingly chose to violate the law. Baraka may have a credible claim that he believed he was attempting to uphold the fire codes of his city.
It should also be noted that this was not federal government property. It is private property, owned by an organization contracted by the government to imprison people. Whether government agents have the authority to even order the mayor off the property is a disputable question.
Finally, Habba’s tweet constitutes undeniable prosecutorial misconduct. Let’s take a look at it.
DOJ Manual 1–7.610 forbids prosecutors from stating “Any opinion as to the defendant’s guilt.” The purpose of this guideline is (as stated by the guideline itself) is to prevent “the release of certain types of information [that] could prejudice an adjudicative proceeding.” Habba’s tweet directly stating, “Ras Baraka committed trespass” is as clear a violation imaginable.
Habba goes on to argue the merits of her case via social media, claiming Baraka “ignored multiple warnings,” to leave and willingly chose to disregard the law. It is a prosecutorial axiom that you try the case in court, and not the in public. Yet trying the case in public is what Habba is doing and in clear violation of DOJ’s own policy intended to protect defendants from such unfairly prejudicial public comments by prosecutors.
It should be noted that whether Baraka “ignored multiple warnings” to leave, and willingly chose to disregard the law, are both disputed fact questions that Baraka contests. However, while defendants are allowed to publicly plead their case, prosecutors are not. Baraka’s counsel will certainly argue that Habba’s public comments risk prejudicing the jury pool in regard to these contested facts and justify dimissal of the case.
Further, as reflected by similar comments surrounding the arrest of Wisconsin Judge Hannah Dugan, such prosecutorial misconduct is part of a pattern by this Department of Justice. Baraka’s attorneys should argue that unless addressed by the courts this pattern of misconduct will continue.
The DOJ’s repeated flouting of guidelines aimed at protecting a fair trial for defendants risks a sympathetic judge dismissing the case against Mayor Baraka. Should that happen the MAGA world will scream about liberal judges protecting their own. They undoubtedly will demand no accountability for the unforced errors committed by a manifestly unqualified United States Attorney appointed by Trump.
