How can Chicago’s top prosecutor hold ICE accountable?

As prosecutors across the country have banded together to push back against President Donald Trump’s audacious deportation campaign, Cook County State’s Attorney Eileen O’Neill Burke has faced mounting pressure to prosecute federal agents who have allegedly crossed the line.

A group of elected officials urged O’Neill Burke this week “to take immediate action to protect our residents from lethal harm” after immigration enforcement officials fatally shot two American citizens in Minneapolis last month.

Meanwhile, a lawsuit seeks to install an outsider to handle cases in county court involving “unlawful conduct” during the deportation blitz that rocked the Chicago area last year, leading to the killing of Silverio Villegas González and the shooting of Miramar Martinez.

“State’s Attorney [O’Neill] Burke and her office have taken no action whatsoever in response to these actions. … There are only two possible reasons for this lack of response: either her office is unwilling to protect the people of Cook County, or it is unable to protect the people of Cook County,” attorney Sheryl Weikal said in the petition last week to appoint a special prosecutor.

O’Neill Burke has decried the Trump administration for unleashing “an untold amount of terror” while carrying out its aggressive deportation operations in Chicago and other cities.

But she has given calculated responses when asked what she can do to target federal agents for their on-duty actions, pointing to legal hurdles that she says limit her office’s ability “to effectively prosecute and secure a conviction.”

Legal experts are split on what Burke could, or should, be doing to meet this extraordinary moment. One lawyer argued that her office could launch its own investigations or impanel grand juries — if they had the will to do so.

Another veteran defense attorney said that a law enforcement agency would need to first conduct a criminal investigation, echoing O’Neill Burke.

The issue came to a head last week when Mayor Brandon Johnson announced an executive order directing Chicago police to investigate alleged misconduct by federal agents and refer any cases to the state’s attorney.

O’Neill Burke's office was caught off guard by the directive, which instructed the cops to make referrals “at the direction of the Mayor’s Office.”

But the prosecutor’s office argues that recommendations coming from outside of law enforcement would mark a shift in longstanding practice and could jeopardize the integrity of a case.

Johnson is just one of a growing number of elected officials calling for the top prosecutor to address the Trump administration's actions, some of whom are fed up with O'Neill Burke’s claim that she’s limited in her ability to conduct investigations.

“My question to her then is: What is in your hands? What can you do? How can you work with us to overcome this violent force that is on our streets?” Cook County Commissioner Jessica Vásquez said in an interview.

‘They have the power’

Typically, Chicago police open an investigation and, when they feel they have enough evidence, bring the case to the state’s attorney’s office to make a charging decision.

Chicago area defense attorney Steve Greenberg said the state’s attorney’s office can also “conduct investigations” in coordination with law enforcement, and it has dedicated units focused on probing sex trafficking and child sexual materials.

Still, Greenberg agreed with O’Neill Burke that prosecutors are hamstrung.

“The state's attorney's office does not have the capacity to go out and investigate street crime or monitor what federal agents, like what [U.S. Immigration and Customs Enforcement] was doing on the street,” Greenberg said.

“The state's attorney's office is a bunch of lawyers and they're not going to go out and pound the pavement.”

O’Neill Burke’s office said its employees don’t serve as primary investigators in any of the cases they prosecute.

But Richard Kling, another veteran Chicago defense attorney, said prosecutors have other options at their disposal.

“They can convene a grand jury,” Kling said. “They can bring witnesses into the grand jury and ask questions in front of the grand jury. They always have that right. They do that in many, many cases having nothing to do with federal officers.”

Kling also pushed back against the idea that O’Neill Burke couldn’t launch her own investigation into the actions of an ICE or Customs and Border Protection agent.

“They have the power if they choose to use it,” Kling said. “Whether she chooses to use it, and why she chooses to use it or not use it, I have no idea.”

Kling said on-duty federal officers aren’t immune from state prosecutors, but they may argue they were carrying out their “professional duties.” The key legal question is whether agents acted reasonably in fulfilling those duties.

Minneapolis may serve as the best stress test for that defense, though local prosecutors still haven’t filed any charges, including in the fatal shootings of Renee Good or Alex Pretti.

Both Greenberg and Kling were skeptical about a judge’s ability to install a special prosecutor to investigate federal agents, as requested in the lawsuit brought last week. Traditionally, special prosecutors are put in place when there is a conflict of interest or allegation of misconduct within the state’s attorney’s office.

On-duty immunity?

A group of prosecutors from across the country launched the Fight Against Federal Overreach coalition last week, working together to prosecute federal law enforcement officers who violate state laws.

So far, no federal agents have been charged with committing a crime while on the job. But prosecutors in Minneapolis, alongside the state’s Bureau of Criminal Apprehension and other local officials, have launched an investigation into Good’s killing.

O’Neill Burke has insisted that her office would need to follow a similar path, reviewing evidence presented to them by a law enforcement agency.

“Our office carefully reviews investigations that are conducted and presented to us by a law enforcement agency and then makes a charging decision based on the specific evidence and facts of a case,” the prosecutor’s office said.

O’Neill Burke’s office said it can only convict a federal agent for on-duty misconduct “in very narrow circumstances,” and no such cases have been referred to the office this year.

ICE agent Adam Saracco has been charged with misdemeanor battery in Cook County for allegedly attacking a protester during an off-duty confrontation in Brookfield late last year.

The local police department said it directly filed the case after O’Neill Burke’s office “declined to file felony charges, advising it was more appropriately charged as a misdemeanor.”

The prosecutors’ office said it merely “recommended proceeding on a misdemeanor charge.”