Former Maryland Governor Calls on States to Place Trump Officials on Trial

“This is a good resurrection story for Easter,” former Commissioner of the Social Security Administration (SSA) Martin O’Malley texted me on Easter weekend. “[It] seems frontline workers are reversing the illegal pain being inflicted on our neighbors by those who declared them dead.”

I’ve known O’Malley for almost a decade, since I openly supported—and later wrote postmortems on—his 2016 presidential candidacy. Now O’Malley had forwarded me a Washington Post article that told the story of nearly three dozen immigrants who successfully challenged the SSA’s false declaration of their deaths and, as a result, had had their records reinstated. To date, the administration of President Donald Trump and the so-called Department of Government Efficiency (DOGE), led by Tesla CEO Elon Musk, have canceled the Social Security numbers of over 6,000 people to attempt to force immigrants to leave the United States.

This is blatantly illegal, but that has not stopped Trump and DOGE. When a person is declared dead by the SSA, they lose the ability to collect benefits, apply for jobs, create bank accounts, hold credit cards, or receive insurance or pensions.

State and local judicial systems [could] initiate criminal prosecutions to hold bad actors in the Trump administration accountable.NPQ reached out to the White House for comment but they declined to reply.

Will Trump officials be held accountable? If the federal government does not act, O’Malley claims state officials could have the legal authority (to say nothing of the moral obligation) to take officials violating people’s civil rights to trial and hold them criminally responsible.

The Paradox of Tolerance

In 1945, the philosopher Karl Popper, in his book The Open Society and Its Enemies, coined the term “paradox of tolerance” to describe how tolerant societies risk self-sabotage if they permit intolerant opinions to become pervasive. Popper wrote his book from exile in New Zealand after fleeing Austria, which Nazi Germany had occupied in 1938.

Popper’s call for limits on intolerance helps explain why many countries today—including Germany—have provisions in law that ban Holocaust denial and various Nazi propaganda.

Given the recent electoral success of the far-right Alternative für Deutschland party (Alternative for Germany), including in this year’s federal elections, such restrictions are evidently far from watertight, but the principle that tolerance has limits is well-established in the laws of nations that have learned the hard way what happens if hate movements aren’t nipped in the bud.

Practical Implications

The United States, of course, has rejected the type of restrictions that exist in Germany. O’Malley, a former Maryland governor and Baltimore mayor who served as SSA’s commissioner under President Joe Biden, doesn’t explicitly call for changing any laws, but he does assert that when authoritarian leaders like Trump and Musk deny empathy to others, they can be best defeated through tactics that deny empathy we might otherwise grant to them.

What kind of tactics? O’Malley advises having state and local judicial systems initiate criminal prosecutions to hold bad actors in the Trump administration accountable. Even if Trump and Musk themselves might not be immediately vulnerable, the people working for them may be less well-shielded.

For example, if a government official declares people who they know to be alive as dead, state and local courts can charge the responsible individuals with deliberately falsifying state records. Many state records, after all, depend on the integrity of the SSA’s master death file. When nonprofits and activists learn about people who are falsely declared dead, they can advocate for law enforcement to treat those cases as crimes, rather than legitimate government policy.

If state and local law enforcement don’t step up, then private civil lawsuits offer a second path.

Each jurisdiction has its own rules and quirks, but nonprofits and activists forgo a potentially valuable opportunity if they don’t even try. In a similar vein, O’Malley, who had a strong pro-immigrant record during and after his tenure as Maryland governor, tells NPQ that state and local prosecutors have the legal authority to charge US Immigration and Customs Enforcement (ICE) agents with kidnapping if they arrest and deport people without due process.

In his comments to NPQ, O’Malley emphasizes the stakes: “If they can do this [declare living people dead] to this first group of people, they can do this to anyone,” he says. “They’re not stopping at the 6,000 that they claim—without presenting public evidence—are violent criminals. They have asked to do this to another 96,000 people who are all here legally. And on top of that, I understand they are preparing to do it to another 800,000 people.”

Given this scale, even people who are citizens may well get ensnared. “You are going to affect some people just by human error who are here legally,” O’Malley explains. But if nonprofits and activists help local law enforcement identify government culprits, O’Malley argues, it could restrain officials who might otherwise feel emboldened to follow Trump’s erratic orders.

If state and local law enforcement don’t step up, then private civil lawsuits offer a second path. The American Civil Liberties Union is already advocating for the hundreds of immigrants deported by Trump and incarcerated in El Salvador without due process. Similarly, nonprofits are working with legal defense funds, attorneys general, and advocates to protect those who might be victimized by SSA.

O’Malley says that, beyond ethical considerations, state governments have an incentive to push back because “declaring people dead who are actually qualified will hurt their ability to participate in activities governed by states like food stamps, Medicaid, and driver’s licenses.”

He adds, “There’s very likely state standing for that, so you’re going to see litigation, you’re going to see probably some state legislation, and you’re going to see activation of citizens all across the nation rising up in opposition to this.”

Other Experts Weigh In

Trevor W. Morrison, dean emeritus of New York University School of Law and coauthor of a Yale Law Journal article titled “What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause,” told NPQ that “the key variable” in determining whether federal officials can be prosecuted is not on the state law side but on the federal law side.

“It’s a matter of whether the federal officer’s action is authorized by valid federal law (i.e., federal law that is itself constitutional),” Morrison said. “If the answer is yes, then under the Supremacy Clause, state law cannot be used to punish the federal officer. But of course, whether a given federal officer’s actions are actually authorized by federal law is a very complicated question.”

Gautham Rao, an associate history professor at American University in Washington, DC, and editor in chief of the journal Law and History Review, told NPQ that regardless of their legitimate legal purview, state and local governments may be still be timid about charging federal officials. Yet this does not mean victims are powerless to use state and local governments to aid their cause.

“By and large, localities, municipalities, county governments, and state governments have historically been very wary of prosecuting federal officials for violating local laws concerning immigration and other areas where the federal government typically exercises jurisdiction,” Rao explained. While he believes this is likely to remain true in the current situation, Rao added that Democrats can use O’Malley’s basic ideas as the jumping-off point for wielding “soft power to raise knowledge among the people about their rights, and can of course work with activist groups to amplify these efforts.”

Jodi Short, a professor of law at the University of California College of the Law, San Francisco, added that although low-level federal officials usually aren’t immune from criminal prosecution, “a federal statute provides that a federal law enforcement officer (this would include ICE agents) who is prosecuted under state law can seek to have their case removed to federal court.” That is, if they convince state and local courts it would be appropriate to do so.

“If the case is successfully removed to federal court, the prosecution can proceed there, but it would have to be conducted by federal prosecutors—obviously a dead end,” Short said. “This would make it very difficult for states to successfully prosecute federal law enforcement officers.”

Short added, “I am not aware of statutory law providing procedures for Social Security staff or other non-law-enforcement officials to remove state prosecutions to federal court. That does not mean it doesn’t exist. That would require research.”

A Moral Obligation to Respond

More broadly, O’Malley notes that the Social Security program that he oversaw under Biden is itself at risk of being totally destroyed. “They tell Big Lies about Social Security,” O’Malley says, rattling them off one by one: “The Big Lie that Social Security is a fraud itself. The Big Lie that Social Security is inevitably going bankrupt. The Big Lie that immigrants are bankrupting Social Security. And the Big Lie that Social Security is rife with fraud when in point of fact every inspector general has found an incidence of fraud that is, year in and year out, less than one-half of one percent.”

To make sure the full message comes across, O’Malley urges nonprofits and activists to draw inspiration from bold, confrontational, and nonviolent activists.

“Dr. Martin Luther King Jr. never tolerated the KKK,” O’Malley observes. “He was a man of peace, and he was a man of reconciliation, but he never tolerated the activities of the KKK. In fact, he gave his life confronting it.” O’Malley also praised Monsignor Óscar Romero, who spoke out against social injustice and fascism in El Salvador. “He never tolerated the oligarchs of El Salvador,” O’Malley says. “In fact, he gave his life confronting them.” Likewise, Pastor Dietrich Bonhoeffer, an anti-Nazi dissident during Adolf Hitler’s regime, “never tolerated the Nazis in Germany, never reconciled with them, though he was a leading theologian, and he too gave his life confronting them.”

Prioritizing Values over Money

“I believe that the greatest weakness in the Western mind is a misplaced sympathy for money,” O’Malley observes, responding to Musk’s recent statement that “the fundamental weakness of Western civilization is empathy.”

At its best, in O’Malley’s estimation, the United States characterizes vulnerable citizens like immigrants as our neighbors, not as enemies or burdens. “I think Jesus probably said it best when he posed the question, ‘Who is your neighbor?’”

O’Malley asks, “If one is to answer as Christ did—and say that we must love the most helpless, like migrants and the poor—then one must follow that conclusion by being tough on those who do harm to your neighbors.”

The federal abduction of Kilmar Armando Abrego Garcia, O’Malley says, is a case in point. “I do believe that the attorney general of Maryland and/or the state’s attorney of Prince George’s County have the right under state laws to file state kidnapping charges against the people that kidnapped Mr. Garcia and shaved his head and shipped him off to…Central America,” O’Malley offers.

The Trump administration has continued to defy the Supreme Court’s ruling on April 10 that the government acted illegally and must facilitate Abrego’s immediate return to the United States.

O’Malley adds, “I would strongly encourage attorneys general and local state’s attorneys to file kidnapping charges against those who would kidnap people in our country in violation of every principle of due process and habeas corpus that has applied here ever since our independence from Britain.”