Miller’s Claim of ICE Agent Immunity Faces Legal Scrutiny

Stephen Miller, Deputy White House Chief of Staff, has sparked controversy with his claim that Immigration and Customs Enforcement (ICE) agents have blanket immunity from prosecution during operations. Speaking during an October 24 interview with Fox News host Will Cain, Miller declared: “To all ICE officers, you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop you or tries to obstruct you is committing a felony.”

The comments came in response to Cain’s question about what federal authority the Trump administration could use to arrest Illinois Governor JB Pritzker if he attempted to arrest ICE agents operating in his state.

Miller expanded his assertion to include any local or state official “who conspires or engages in activity that unlawfully impedes federal law enforcement conducting their duties,” suggesting they would be subject to federal prosecution.

The statement comes amid escalating tensions in Chicago, where federal immigration operations have led to more than 3,000 arrests. Just a day before Miller’s interview, Governor Pritzker signed an executive order establishing the Illinois Accountability Commission to document federal law enforcement actions and refer possible violations to local and state agencies for investigation.

Pritzker himself has acknowledged certain limitations in prosecuting federal agents but with important distinctions from Miller’s sweeping claim. In an October 16 interview, the governor stated that “federal agents typically have federal immunity, but they’re not immune from the federal government holding them accountable and responsible.”

Legal experts have quickly challenged Miller’s characterization of federal immunity. Bryna Godar, an attorney at the University of Wisconsin’s State Democracy Research Initiative, wrote in a July report that “federal officials are not categorically immune from state criminal prosecution, even while on duty.”

When asked for clarification, the White House directed media to an October 23 letter from US Deputy Attorney General Todd Blanche to California officials. The letter stated: “The Department of Justice views any arrests of federal agents and officers in the performance of their official duties as both illegal and futile.” Blanche cited several federal laws and constitutional provisions, including the Supremacy Clause.

However, Georgetown University constitutional law professor Steve Vladeck directly contradicted Miller’s statement as “wrong on its face” in his October 27 newsletter.

Recent cases demonstrate that federal immigration agents can indeed face legal consequences. In 2024, a federal judge convicted and sentenced a US Customs and Border Protection agent to prison for using excessive force against two people at the southern border. The Department of Homeland Security’s internal watchdog investigated the case.

The federal government has also previously acknowledged its authority to hold agents accountable. After a Border Patrol agent killed a 15-year-old Mexican boy at the southern border in 2010, the Justice Department explicitly stated in a 2019 Supreme Court brief that the federal government investigates allegations of excessive force and “may bring a federal criminal prosecution where appropriate.”

Non-governmental organizations have also successfully challenged federal agent conduct. Several groups in Chicago, including journalism organizations, have sued the Trump administration, alleging that federal agents were using “a pattern of extreme brutality in a concerted and ongoing effort to silence the press and civilians.” This litigation resulted in a federal judge ordering limitations on the use of tear gas and other crowd control tactics.

The legal foundation for federal agent immunity stems from the 1890 Supreme Court decision in the Neagle case, where a US marshal was protected from state murder charges after killing a man while protecting a Supreme Court justice. This established that federal agents are generally shielded from state prosecution when their actions are authorized by federal law and “necessary and proper” for fulfilling their duties.

Yet this immunity has clear limitations. While a customs agent received immunity for speeding during a drug operation in 1990, a U.S. Marine was not given similar protection after causing a fatal accident while driving in a military convoy that same year.

Legal experts emphasize that any state prosecution of federal agents would require courts to determine whether an officer reasonably believed their actions were necessary to fulfill federal duties. As Vladeck noted, “That’s a generous standard, to be sure. But it is by no means a get-out-of-prosecution-free card.”

While immigration enforcement remains a divisive political issue, the legal consensus suggests that Miller’s assertion of blanket immunity for ICE agents significantly overstates the legal protections available to federal officers.