A prominent legal expert is raising questions about potential federal criminal liability for Department of Homeland Security officials in connection with the handling of evidence and personnel following the killing of Alex Pretti by Border Patrol agents.
Rory Little, writing in his ScotusCrim series that focuses on intersections between the Supreme Court and criminal law, draws a stark comparison between how federal prosecutors would handle a hypothetical drug gang case versus the real-world response to the Pretti killing.
"Imagine: A group of drug dealers beat and shoot dead a citizen they felt was interfering with their work," Little writes, describing a scenario with witnesses and video evidence. "With the bosses' knowledge and approval, the drug dealers do a hurried clean-up of the scene and spirit away the shooters and physical evidence before law enforcement can investigate."
Little argues that in such a drug case, both the on-scene perpetrators and their remote supervisors would face criminal charges, including obstruction of justice. He questions why similar legal theories haven't been explored regarding DHS leadership's handling of the Pretti case.
The Pretti killing has generated widespread speculation about potential state criminal charges, with video evidence showing the incident. However, Little notes that federal obstruction charges against DHS higher-ups "who may have aided, counseled, and commanded various actions related to the shooting" have received little attention.
According to Little's analysis, the DHS response to the Pretti killing included several potentially problematic actions. Three days after the shooting, the two Border Patrol officers involved were identified to Congress, but their current whereabouts remain unknown. News reports indicate the officers left the scene quickly alongside other federal personnel.
"In the absence of additional information, my former-federal prosecutor instincts say that the officers were quickly moved out of Minnesota," Little writes. "I doubt this was done without DHS management approval or orders."
The legal expert also raises concerns about evidence handling. Weapons used at the scene, along with potentially critical evidence like shell casings and bullets, were apparently removed by DHS personnel. Little notes there's no indication that federal agents properly secured the crime scene with barriers or personnel to prevent evidence spoliation or tampering.
This pattern of behavior, according to Little, mirrors the type of evidence destruction and witness removal that would trigger federal obstruction charges in other contexts. The unusual secrecy maintained by DHS about the actors and evidence in the case has only heightened these concerns.
Federal obstruction of justice statutes are broad and can apply to anyone who knowingly alters, destroys, or conceals evidence with intent to impair its availability for use in official proceedings. The statutes also cover attempts to influence witness testimony or prevent witnesses from providing information to law enforcement.
Little's analysis suggests that if DHS supervisors directed or approved the rapid removal of the involved officers and evidence from the scene, they could theoretically face federal charges under these obstruction statutes. The key legal question would be whether such actions were taken with intent to impair a criminal investigation.
The Supreme Court has generally taken a broad view of federal obstruction statutes, holding that they can apply to conduct that has a natural tendency to influence or impede judicial or administrative proceedings. The Court has also ruled that obstruction can occur even in the preliminary stages of an investigation, before formal proceedings have begun.
However, Little acknowledges that federal charges against DHS officials "seem unlikely at the moment." The practical and political challenges of prosecuting federal agents and their supervisors for actions taken in their official capacity create significant hurdles for any potential prosecution.
The Department of Justice would need to determine whether DHS officials' actions crossed the line from legitimate personnel management and evidence collection into criminal obstruction. This analysis would likely consider factors such as the timing of the officers' removal, the manner in which evidence was handled, and any communications between field personnel and DHS leadership.
Little's commentary highlights a broader question about accountability when federal law enforcement agencies investigate their own personnel. The apparent rapid response to remove officers and evidence from the scene contrasts sharply with standard criminal investigation protocols used in civilian cases.
The legal expert's comparison to drug gang prosecutions underscores the potential double standard in how similar conduct might be treated depending on who commits it. While gang leaders face serious federal charges for directing subordinates to destroy evidence and remove witnesses, federal supervisors who engage in similar conduct may escape prosecution entirely.
As investigations into the Pretti killing continue, Little's analysis raises important questions about whether federal obstruction statutes should apply equally to government officials and private citizens. The case may ultimately test the boundaries of prosecutorial discretion and the willingness of the Justice Department to pursue charges against its sister agencies.