NEW ORLEANS — The debate over federal law enforcement swooping into liberal cities isn’t new to Minnesota Attorney Gen. Keith Ellison. His first term was consumed by the death of George Floyd, and its aftermath; his office secured convictions of the officers who killed Floyd. He won a second term, narrowly, after criticizing the “defund the police” movement for making long-term reform more politically difficult. And in January, when Donald Trump returned to the White House, Ellison joined his Democratic colleagues in AG offices to slow him down in court.
Ellison spent part of last week at the annual Netroots Nation conference, where he updated progressive activists on some wins and some uphill battles. He sat down with Semafor to talk about where he saw the administration moving next, why he thought the Secretary of Homeland Security doesn’t “know her ass from a hole in the ground” and why he thought mass resistance in the streets was going to be part of an effective Trump response. This is an edited transcript of the conversation.
David Weigel: How does your office respond when Trump speaks? When you see a post on Truth Social, do you start moving? Do you wait for something else?
Keith Ellison: We view that as him giving us a tell and a signal. We start figuring out: How can we make an argument that we do have standing? How can we make an argument that it’s violating some code, statute, regulation, constitution? We start writing memos, and we’ve already got a really great template for all those things. So it doesn’t take us that long. We bring it up at one of our meetings that we have three times a week, unless there’s nothing cooking. If it’s Saturday when I hear this, then on Monday, I’ll say: Did y’all hear what the Cheeto said? And we’ll get going.
We take what he says seriously, and we begin to act legally right away. Sometimes it ripens into a case, and sometimes he just talks smack. And not every wrong is legally suable. Then, we’ve got to go find our friends to see what they might be able to do. When he summarily fired Gwynne Wilcox, we couldn’t sue on that, but we filed an amicus on that. We lifted her up on social media. And there’s stuff we’re still figuring out. Is there a legal basis to stop him from having masked ICE agents just grabbing people off the street, putting them in unmarked vans? Well, my research tells me that there is no statute on the books prohibiting the practice.
There’s no statute, it’s just not typically used this way.
There’s a law that’s pending on that, but in the mean-time, I wrote an op-ed on it. We write a letter saying it’s wrong. We go to law enforcement agencies and say: Why don’t y’all wear masks? Why don’t the state troopers wear a mask? Well, because we’re carrying out laws that are moral, legal — public safety rules that people understand have to exist. So why should I cover my face if I’m trying to stop you from creating a traffic accident? This is legitimate law carried out by legitimate law enforcement, and everybody knows that there’s something about this masking which lacks legitimacy, or else they wouldn’t do it that way.
You had two years of overlap with the first Trump administration. How is litigating against it different this time?
He wasn’t ready to be president last time. He relied on people whose credentials were tethered to legitimacy. They might have made choices that I would not have made, but they didn’t make choices that destroyed American democracy. This time, completely unhinged. Professional expertise is the last thing he wants.
What does that mean for your office?
I’ve hired several people who were former DOJ employees, who are really good. The level of legal expertise [in this DOJ] is not impressive, but they compensate for that by sheer gall. Kristi Noem does not know her ass from a hole in the ground; she doesn’t have any sense that having unmasked agents arrest people on the street could put them in danger.
And the level of legal quality is lower. They’re over-stressed, they don’t have enough time. Their saving grace is a packed court, right? But we don’t fear them in court. They’re not Clarence Darrow. But they’re audacious, and they hope that if they can get in front of Clarence Thomas, they’ve got a shot.
You take this birthright citizenship thing, the very first one out of the gate. A clear symbol. They don’t want to argue the merits in front of the Supreme Court. They want to argue this injunction because the lawyers who are left, they’re gonna get slapped down. They’re asking the Supreme Court to destroy American jurisprudence and disrespect the Constitution. If I were a judge today, and there was some issue being litigated with the DOJ on one side — they walk into the courtroom with a lack of credibility.
What did you learn from the Trump administration’s “liberation” of Los Angeles? How would you respond to a federal mobilization in Minneapolis?
We would absolutely be fighting it in court. We’re ready for it. Our documents are sitting right there. We will be in touch with people who are active in civil society and notifying them of their First Amendment right to protest.
From a Trump standpoint, he’s got to see the LA experience as less than a win for him. People did not clap for the Marines. People were horrified. You’ve got the likes of Joe Rogan and others saying, what? You sent the Marines against the American people in an American city? That sounds like some dictatorship stuff! You’ve got people who are in the middle moving away from him.
So you’ve got to have massive turnout, coupled with lawsuits, coupled with denunciations, coupled with leaders like the mayor and the governor saying, this is wrong. One of the things you saw right in front of your eyes after the murder of George Floyd is that people comply with the law because they see it as legitimate. Once they see it as not legitimate, there’s not enough law enforcement people to make people obey the law. So trusting the law, believing in the law, thinking the law is legitimate, is an essential part of how we maintain civil order. And Trump is breaking that rule. He’s making people disrespect the law because it’s not viewed as legitimate; it’s not viewed as fair.
How are you preparing for the potential of the Supreme Court weakening the Voting Rights Act, and allowing Republicans to draw more winnable seats without having to carve out minority-majority seats?
There’s a clear risk. John Roberts said, if you want to stop discrimination based on race, you got to stop discriminating based on race. It’s the most ignorant, uninformed thing anybody ever let out of their mouth. And of course, he knows better. He’s just doing ideology. But even in a situation like that, if you can use the popular movement for American democracy, and you can gin it up enough, you’ve got to get the Supreme Court asking itself: How many hits to our credibility can we inflict? Clearly Clarence and Sam don’t give a shit, but Roberts and Coney Barrett do. It’s a coin flip what Gorsuch and Kavanaugh would do. You’ve got three people who will do the right thing. You only need two more who might do the right thing.
Here’s the thing: Our democracy was always fragile. It came up through a lot of pain and struggle. Is John Roberts ready to say, here’s where we end the American experiment? We’re now Hungary? We join the ranks of Pinochet and every dictator who ever existed? You’ve got to have a popular struggle, which is informed by the lawsuits.
When you start seeing 20 million people on the street, you create ungovernability, and then you have to use the military to assault Americans for standing up for their democracy. Trump would be so proud to see people die for him. It would be an ego gratification for him. And I think you’re gonna have massive social unrest if something like that happens.
But from the administration’s perspective, politically, that would be good. The George Floyd protests from 2020 are still in every campaign ad. If you watched LA coverage on Fox News, it looked like the entire city was on fire. Why would protests not help the administration consolidate power?
Let’s look at the George Floyd situation. First of all, I think it was the largest mass protest in American history. How did it play out in 2022? I still won. You might have said that the protesters created chaos after the murder of George Floyd, and the protesters were the ones who created civil unrest. But what about now?
Everyone in America knows that when there are protests right now, they are because of what Trump is doing. Everyone knows that. The accelerationists who think it helps them, they’re not going to change. But that’s not who runs the show. What’s Miss McGillicuddy think? Is Miss McGillicuddy going to say throwing Rümeysa Öztürk into a van because she wrote an op-ed — that’s the America I want to live in? I don’t think she does.
