As Jim Schultz Looks to Expand Attorney General Power to Fight Crime, Would State Law Let Him?
Attorney General Keith Ellison and Republican candidate Jim Schultz speaking to reporters following Sunday night’s debate. MinnPost photo by Walker Orenstein

As Jim Schultz Looks to Expand Attorney General Power to Fight Crime, Would State Law Let Him?

Republican Jim Schultz has pledged to add dozens of new criminal prosecutors to the attorney general’s office in Minnesota and even circumvent elected county attorneys to fight crime.

Republican Jim Schultz has pledged to add dozens of new criminal prosecutors to the attorney general’s office in Minnesota and even circumvent elected county attorneys to fight crime, expanding the role of an agency that isn’t typically on the forefront of the issue.

Schultz said his vision meets the moment in Minnesota, where violent crime incidents increased by 22 percent in 2021 and where polls show it’s a top priority for many voters.

That plan has drawn flak from Keith Ellison — the DFL incumbent — who says Schultz could hamstring the office from carrying out other required duties, including consumer protection work central to the position.

It’s also not clear the attorney general in Minnesota even has the power to carry out parts of Schultz’s agenda. Some legal experts, for instance, cast doubt on Schultz’s proposal to prosecute street crime with a novel use of Minnesota’s racketeering law.

Ellison says he has taken crime seriously within his authority. And he has painted Schultz as trying to “demagogue” on the issue by selling promises he can’t deliver in an effort to make a potent campaign issue for Republicans relevant to the attorney general position. “He doesn’t understand anything,” Ellison said. “No AG has ever done what he’s proposing.”

But to Schultz, the criticism is evidence that Ellison is unwilling to make crime a true priority. Schultz said he is even open to wresting power from the progressive Mary Moriarty if she is elected as Hennepin County Attorney and Schultz feels she is not prosecuting cases aggressively enough.

“Unfortunately the attorney general’s office is currently using none of the tools that are available to it,” Schultz said. “The only response from Keith Ellison throughout is ‘I can’t do that, I can’t do this, I can’t do that.’ The fact is, he could do a heck of a lot of things.”

Expanding the AG’s criminal division

By law in Minnesota, elected county attorneys prosecute most serious crimes like murder or assault, while city attorneys can handle some lower-level offenses like misdemeanor traffic violations. The attorney general is tasked with other responsibilities like defending state law and representing agencies, enforcing consumer protection law and regulating charities.

But the AG does have a criminal division. That’s because the office can step in to prosecute crime at the request of a county attorney or the governor. For example, Gov. Tim Walz and Hennepin County asked Ellison to lead the prosecution of former officer Derek Chauvin in the 2020 murder of George Floyd. In the 2021 killing of Daunte Wright, Hennepin County turned over the case against former officer Kim Potter to Washington County, which then gave it to Ellison.

Those were somewhat unusual, however, because county attorneys in the Twin Cities metro typically have large enough offices to prosecute crime without help.

More often, the AG aids smaller counties in Greater Minnesota when they lack resources, staff or sometimes expertise to handle complex cases like murder, human trafficking, sexual abuse or certain white collar crime. Lately Ellison highlights the September conviction of Devin Weiland who shot and injured an Albert Lea officer.

When Ellison was elected in 2018, he said it was a priority to expand the criminal unit, which had just one full-time prosecutor. He has added two full-time prosecutors, but three requests for money from the Legislature were rejected by Republicans who control the state Senate despite support from many rural county attorneys.

Earlier this year, Ellison asked lawmakers to pay $1.82 million from a huge budget surplus for seven full-time prosecutors. He told reporters Sunday the request was to support burned out attorneys, pursue criminal appeals and represent counties in certain litigation tied to sex offenders. “We thought with seven more people we can relieve some of the great pressure that’s on the existing group right now,” Ellison said.

Sen. Mary Kiffmeyer, a Republican from Big Lake who chairs a committee overseeing the AG, criticized Ellison for suing businesses that violated Walz’s COVID-19 restrictions. She argued if Ellison had enough time and money to sue those businesses, he could also prosecute crime.

Kiffmeyer also said Ellison could shift personnel in his office, and in May she expressed a preference for local control over criminal prosecution rather than AG intervention, a view that might conflict with Schultz’s plan. As a result, Kiffmeyer proposed $100,000 to help train county attorneys for complex litigation, which she said was better than the “attorney general sucking up all this stuff into his office.”

Ellison has resisted shifting more resources from other areas of his office. He said it would hamper his ability to carry out basic functions of the office required by law and pursue important consumer protection work like several opioid lawsuits that resulted in hundreds of millions for Minnesota to use on responding to the drug crisis.

But the DFLer says he has taken on every serious criminal case county attorneys have asked for help with — 50 in total — and secured convictions in each. “We have never turned down a serious case and we have won 100% of those cases,” Ellison said in a debate on WCCO Radio last week.

Ellison also says he has sought to fight crime in other ways. That includes suing Fleet Farm, which Ellison accused of selling guns to straw buyers, and two businesses in north Minneapolis the AG alleges are hotbeds for gun violence and drug dealing. (Schultz has argued Ellison shouldn’t blame businesses for an uptick in violent crime.)

Schultz has called for a massive expansion to as many as 36 prosecutors.

“He brags about prosecuting 50 folks over the past four years — that’s like me bragging about running five miles per four years,” Schultz said during the WCCO debate.

If the Legislature does not approve money for extra criminal attorneys, Schultz said he would move staff away from other areas. The AG’s office has about 150 attorneys including top managers. Schultz said some attorneys would need to be moved from the 26-attorney consumer protection unit but that he’d take “a holistic look” at personnel across the office to “respond to the current moment.”

Ellison told MinnPost that county attorneys do a good job prosecuting crime and creating a massive AG criminal unit would mean intervening on even lower-level cases. Jim Backstrom, an Ellison supporter who was the Dakota County attorney for more than 30 years before retiring in 2021, said he believes three dozen prosecutors would be “way overreaching in terms of the requests that are going to be made.”

How can an AG use racketeering law?

Yet Schultz envisions those prosecutors would go beyond what is referred to them by county attorneys. To do so, he said the AG would use Minnesota RICO law — Racketeer Influenced and Corrupt Organizations — for “instances where county attorneys are failing to adequately do their jobs.”

The RICO statute says the “prosecuting authority” in such cases is “the office of a county attorney or office of the attorney general.” To Schultz, that means an AG could pursue certain cases with — or without — permission from a county attorney, allowing the office to take on crime at a larger scale.

“For me at the top of that list right now is Hennepin and Ramsey counties where we just simply are not undertaking the level of criminal prosecution that’s required to deal with the incredible violence and crime in our communities,” Schultz said.

In a racketeering case, prosecutors must prove there is an enterprise like a gang engaging in a pattern of criminal conduct. Federal RICO law was used originally to pursue the Mafia.

Schultz said the AG could use RICO to go after carjacking, drug trafficking, straw purchases of guns and human trafficking. After a debate with Ellison on Sunday, Schultz told reporters it could even have been used to target alleged fraudsters at the nonprofit Feeding Our Future.

It’s a controversial strategy.

Ellison argues that in general, the attorney general can’t use RICO to circumvent county attorneys in criminal cases, though he said he has greater authority to address Medicaid fraud.

Jeffrey Grell is a professor at the University of Minnesota Law School who has taught RICO law for 20 years and wrote a textbook on the subject.

He said Ellison has prosecuted Medicaid fraud under the RICO statute. The AG also worked with Washington County, not unilaterally, on two cases tied to sex trafficking and racketeering.

Grell — a Democrat who worked for the attorney general’s office from 2008 until 2010 and runs a law firm with a DFL state lawmaker — said it’s unclear whether Minnesota’s RICO law gives Ellison special authority to unilaterally enforce the statute on criminal cases.

That’s because it doesn’t explicitly disregard the crucial law requiring an AG to get permission from a county attorney or the governor to handle a criminal prosecution.

Mark Osler, a former federal prosecutor in Detroit and current University of St. Thomas law professor, said the RICO statute could simply be referencing that other law guiding when an AG can — and importantly, can’t — intervene. “They can be read together in a way that doesn’t create a mystery,” he said.

Either way, Grell said the RICO statute isn’t meant for “run of the mill, garden variety criminal activity.” Grell said the law might be used to target a “Godfather” figure who “doesn’t get their hands dirty” but who manages a criminal enterprise.

Those cases are often complex and difficult to investigate and later prove in court, one reason Grell said they’re rare. He said a search of legal records found 62 cases under the Minnesota RICO statute since it was passed in 1989.

In Georgia, the Fulton County prosecutor has used RICO in an effort to address gang activity, famously involving the rapper Young Thug. Grell said that’s not a “legally novel” way to use RICO law. But he said if someone is not a “Godfather” and is committing crimes themselves like robbery, a prosecutor would likely just charge them for that conduct directly.

“If you can get a guy on a simple criminal charge, just charge him with a simpler crime,” Grell said. “It’s going to be more efficient, it’s going to be easier for the jury to understand, it’s going to be less investigation, less likelihood to lose, frankly.”

For his part, Schultz agreed that RICO cases are complex. And he said an AG using RICO to sidestep a county prosecutor would be a new strategy. But Schultz noted Washington County has used the statute in a human trafficking case, meaning local RICO charges aren’t unheard of.

“I’m not here to say that the use of RICO in itself will single-handedly deal with the incredible crime on our streets,” Schultz said. “What I’m saying is it’s one tool. We have to use whatever tools are available in that office.”

Schultz floats expanding power to sidestep Mary Moriarty

Another AG tool Schultz is contemplating? The ability to sidestep county attorneys in cases beyond RICO. He’d need the Legislature to change the law, but he told MinnPost such a move is an “open question.”

“I think we’ve got to start using the tools that are available to us in the AG’s office,” he said. “And then we’ve got to see where things are at — frankly, who is in the Hennepin County Attorney’s Office come January and overall the status of crime once we actually start using the totality of resources available to us here in the state.”

Schultz said he’s “very sensitive to the prerogatives of county attorneys” and wouldn’t want an AG “sticking its nose into matters” they don’t have full insight on. He was particularly wary of intruding outside Hennepin and Ramsey counties because crime is concentrated in those large counties, and he would have less insight “once you start getting further away from St. Paul.”

But Schultz said he’s most concerned with Ellison-endorsed Mary Moriarty winning election for Hennepin County Attorney against Martha Holton Dimick because Moriarty has “indicated that crime deterrence by effective prosecution of crime does not ‘do a heck of a lot,’” citing a quote from Moriarty earlier this year about violent crime like murder and carjackings.

“This would not be my first recourse when I’m in office here,” Schultz said, saying he could partner with “responsible leaders,” a category he said could include Ramsey County Attorney John Choi.

“But in a scenario in which we have somebody like a Mary Moriarty in the Hennepin County Attorney’s office” and she is pursuing “some of her reckless plans for the office,” Schultz said, “that I think we have to take a look at something along those lines.”

On Sunday, Schultz also said he’d use RICO “more aggressively” in Hennepin County if Moriarty was elected.

Moriarty said in a statement that with “democracy under attack” in the country, “it is concerning that a Republican candidate for Attorney General would seek to change state law based on who voters elect to serve their communities in local office.”

Such a proposal from Schultz might stall in the Legislature if the state House remains under DFL control. State Rep. Cedrick Frazier, a DFLer from New Hope and Moriarty supporter who is vice chairman of the House’s public safety committee, said he would have to know exactly how and why Schultz wants to expand his power before “having a conversation around changing the law specifically to take away the authority of the Hennepin County Attorney’s Office.”

But he said county attorneys like the ability to partner with the AG’s office. “I don’t think county attorneys want the AG’s office to have the ability to come in and basically snatch cases away from them.”

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The debate between Ellison and Schultz reflects their split over exactly what the primary job of an attorney general should be. For Ellison, the “heart and soul” of his office is consumer protection. He said former AG Lori Swanson’s legacy was her environmental lawsuit against 3M. For Skip Humphrey, it was a massive settlement with tobacco companies.

“Has there ever been an attorney general who has only been known as being a criminal prosecutor just like a county attorney is? Never,” Ellison said. “What he’s doing is novel. What he’s doing has not been done because it’s a bad idea, because it takes away from other things that the office must do.”

Schultz said Ellison hasn’t shied away from novel areas of the law “where it’s a priority for him,” and he said the AG could be a leader in pursuing other crime-fighting strategies like new laws related to carjacking. To start a debate on MPR News earlier this month, Schultz said his top priority is “crime, crime and crime.”