Cook County State’s Attorney Eileen O’Neill Burke unveiled new guidance Thursday for prosecuting the alleged crimes of federal immigration agents, after denouncing a plan put forth by Mayor Brandon Johnson and facing mounting pressure to do more to address the feds’ at times aggressive and violent tactics.
It marks the most tangible step O’Neill Burke’s office has taken to crack down on the federal agents carrying out President Donald Trump’s aggressive deportation campaign.
“No one is above the law — including both ICE agents and prosecutors,” O’Neill Burke said in a statement. “If a federal law enforcement agent commits a crime, my office will not hesitate to act, in accordance with state law. This protocol establishes clear, legally sound guidelines to ensure we have a responsible and effective path to pursue accountability.”
Under the guidance, law enforcement agencies will lead criminal investigations by collecting and preserving evidence. If law enforcement needs assistance getting sworn testimony or additional evidence that’s not volunteered, the state’s attorney’s office can step in and impanel a grand jury. Prosecutors will conduct an independent review of all evidence and make charging decisions, as they do in all felony cases.
But in these cases, O’Neill Burke’s office will also have to consider the specific protections offered to on-duty federal agents — demonstrating the officer does not have Supremacy Clause immunity. That protects federal officers from state prosecution while acting in their official capacity, as long as they “did no more than what was necessary and proper for him to do.”
The protocol for bringing charges, developed in collaboration with Illinois Attorney General Kwame Raoul and the Illinois State’s Attorneys Association, was lauded by Mayor Johnson, whose “ICE on Notice” executive order had drawn sharp criticism from O’Neill Burke’s office earlier this month.
The rebuke hinged on Johnson’s decision to order Chicago police to make criminal referrals to prosecutors “at the direction of the Mayor’s Office.” O’ Neill Burke’s office called the order “wholly inappropriate,” saying it raises issues of political interference that could jeopardize criminal cases. But on Thursday, Johnson issued a statement saying his order and O’Neill Burke’s new guidance are “aligned facets of the same public safety framework.”
“The State’s Attorney’s Protocol establishes the prosecutorial process that follows those referrals, ensuring cases are evaluated under the same legal standards that apply to anyone else,” Johnson said. “Together, they reinforce a simple principle: federal agents operating in Chicago remain subject to the law, and when serious incidents occur, there must be a clear, coordinated path to accountability.”
Over the past month, elected officials have pushed O’Neill Burke to act as aggressively as her counterparts in Minnesota in response to fatal shootings by federal agents. O’Neill Burke has maintained that her office is limited in its ability to actually prosecute and convict on-duty federal agents.
Meantime, her office has been working to develop a system to clarify the roles cops and prosecutors will play in investigating and bringing charges against federal agents accused of crimes, including shootings and other acts of violence.
Attorney General Kwame Raoul stressed the importance of having “a common understanding of what the law is in these situations and what protocol should be put in place to carry out the law.”
“It’s not just whether or not you think somebody did something wrong, it’s whether or not, with the evidence you have available to you, you’ve reached a point where you can proceed, where you’re confident that you can prove the case beyond a reasonable doubt,” Raoul said in an interview.
Raoul said he understands the frustrations of elected officials and community members who have seen viral videos of people being killed by federal agents. But he said it’s crucial prosecutors follow the new guidance and cautioned against potentially overreaching.
“One of the things we have to be careful of is to not slip into the same thing that we criticize the current president for,” he said. “President Trump has, on many occasions, very publicly given directives to the Department of Justice and other law enforcement to pursue specific individuals.”
Over the past six months, federal agents have torn through cities across the country, carrying out Trump’s audacious immigration enforcement blitz. Agents have unleashed unprecedented levels of force, deploying tear gas, pepper balls and fatally shooting people in Minneapolis and Chicago in recent months.
But so far, no federal agents have been charged with committing a crime while on the job.
A lawyer for Marimar Martinez, the Chicago woman shot by a Border Patrol agent last fall in Brighton Park, said he’s optimistic the protocol will act as “a bit of deterrence,” especially if the feds return in force.
“At least there’s a policy on the books in Cook County that if they act unlawfully, they’re at least potentially subject to some sort of investigation,” attorney Chris Parente said. “I think that’s better than nothing.”
Parente has been told there’s an active investigation into agent Charles Exum’s conduct by the U.S. attorney’s office in South Bend, Indiana. But if that investigation doesn’t pan out, Parente said he’ll turn to state prosecutors. Officials in Minneapolis have launched an investigation into the fatal shootings of Renee Good and Alex Pretti, but they haven’t filed charges and are running into roadblocks trying to obtain evidence from the federal government.
In Cook County, a U.S. Immigration and Customs Enforcement officer has been charged with attacking a protester while off-duty in Brookfield.