As they prepare to make their second attempt at sending a border-based humanitarian volunteer to prison, federal prosecutors in Arizona are worried that the politics behind the policies they enforce might creep into the courtroom. In a late-stage motion, government lawyers have urged an Arizona judge to bar any mention of President Donald Trump or his immigration policies from the upcoming retrial of Scott Warren, a 36-year-old geographer who was indicted on felony harboring and conspiracy charges for giving two young migrants crossing a deadly stretch of desert food, water, and a place to sleep for three days in 2018. Warren is one of nine volunteers with the faith-based organization No More Deaths that the administration has charged with federal crimes for their work in the Arizona desert since Trump’s inauguration. The prosecutors’ concerns that Warren’s trial could become a referendum on Trump’s policies — specifically those that involve pressing charges against people for providing humanitarian aid — are not entirely misplaced. According to new research examining public opinion around the president’s hard-line border enforcement measures, Americans, regardless of political affiliation, overwhelmingly reject the notion that providing lifesaving care to people in the desert should be criminalized, suggesting that the government’s crackdown in the borderlands is well outside the bounds of what most people expect or demand from law enforcement.

A national survey conducted in August by Chris Zepeda-Millán, an associate professor of public policy at UCLA, and Sophia Jordán Wallace, an associate professor of political science at the University of Washington, posed the question: “Do you agree or disagree that it should be a crime for people to offer humanitarian aid, such as water or first-aid, to undocumented immigrants crossing the desert along the U.S.-Mexico border?” To the researchers’ surprise, nearly 87 percent of the 1,500 American adults surveyed disagreed. When the results were broken down along party lines, the survey became even more interesting: Nearly 70 percent of Republicans said they disagreed with criminal prosecution for the provision of humanitarian aid, and nearly 38 percent said they “strongly disagreed” with the idea.

Nearly 70 percent of Republicans said they disagreed with criminal prosecution for the provision of humanitarian aid.

“The findings suggest that the vast majority of Americans, including the vast majority of Republicans, do not support the criminalization of the type of work that No More Deaths and Scott Warren were doing,” Zepeda-Millán told The Intercept. The survey was conducted for a forthcoming book and paper looking at public opinion around Trump’s most aggressive immigration and border policies. And while there’s still work to be done on that broader project, the researchers chose to share their findings on the humanitarian aid question in advance of Warren’s retrial — he returns to court on Tuesday and faces a decade behind bars if convicted and sentenced to consecutive terms — in part because of how striking they are. Students of U.S. immigration enforcement history tend to agree that the Trump administration’s approach did not suddenly materialize out of nowhere, but is instead the extension of a multidecade trajectory of increased criminalization of immigration offenses and an unprecedented build-up in border security infrastructure, now infused with the hard-right rhetoric of authoritarian regimes around the world. There is one area, however, in which the current administration has distinguished itself from its White House predecessors, Zepeda-Millán noted: the targeting of immigrant rights activists. While it keeps thousands of asylum-seekers in legal limbo in some of Mexico’s most dangerous border cities, the administration is simultaneously criminalizing — and in some cases arresting and deporting — those who challenge Trump’s policies, he noted.

It’s a pattern of “anti-movement state repression,” Zepeda-Millán argued, and it’s why understanding public opinion on these policies is so critical. Traditionally, the best indicator of a person’s stance on a given immigration policy issue is their party affiliation, he explained. “When it comes to immigration, there’s usually a really strict and stable partisan divide,” he said. “As long as we know what your political party is, we can pretty much guess what your opinion is going to be on deportation, on the wall, etc.” The survey results bucked that trend in a major way, reflecting a rare thing in American politics: strong, bipartisan consensus on a matter of immigration-related policy in the era of Trump. The same Trumpian politics and policies that Zepeda-Millán and Wallace examined, and that prosecutors have sought to banish from Warren’s trial, have served as the backdrop for the government’s criminalization campaign in southern Arizona from the beginning. It started in the run-up to the 2016 election, with Border Patrol agents parking their vehicles outside the humanitarian aid camp that No More Deaths has used for years and urging the volunteers to “Vote Trump!” by megaphone. Shortly after Trump’s election, then-Attorney General Jeff Sessions flew to Arizona, where he encouraged his prosecutors to bring more cases like the one against Warren. “This is the Trump era,” Sessions said at the time. Not long after the visit, the Border Patrol raided No More Deaths’ camp in a show of force that involved a helicopter and roughly 20 agents, some carrying rifles, deployed to arrest four undocumented migrants who had crossed the desert and were receiving medical aid. Six days later, a senior Border Patrol agent in the Tucson sector told a world-renowned forensic anthropologist, who works on the issue of migrant deaths in the desert, that the humanitarian aid group had “messed with the wrong guy.” The anthropologist, in a sworn court declaration, said the agent told her his agency intended to “shut them down.” Throughout the summer of 2017, the Border Patrol and senior officials at U.S. Fish and Wildlife Service worked together to monitor the activity of No More Deaths volunteers who were leaving food and jugs of water on the Cabeza Prieta National Wildlife Refuge, a profoundly remote and extraordinarily deadly stretch of the Sonoran Desert. They compiled blacklists of volunteers and kept tabs on Warren’s movements in the tiny border community of Ajo, where he lives and works. As summer turned to fall, prosecutors filed federal misdemeanor charges — for littering and trespassing — against Warren and eight other No More Deaths volunteers for driving on designated wilderness and leaving humanitarian aid supplies on the wildlife refuge. On the morning of January 18, 2018, No More Deaths published a scathing report implicating the Border Patrol in the destruction of thousands of gallons of water, left in jugs for migrants crossing the desert. The report, which included video evidence that soon went viral, was shared with the patrol agent in charge of the Ajo Border Patrol station. Agents from the station then set up surveillance on a building known as “the Barn,” which serves as a base for Warren, No More Deaths, and other border aid groups. Late in the afternoon, the agents spotted Warren with two young men who they suspected to be undocumented. A raiding party composed of most of Ajo’s law enforcement community was quickly organized.

Since 2001, in Pima County alone, more than 3,000 people have lost their lives trying to cross the Sonoran Desert.

Warren and the two young men were placed under arrest. Their names were Kristian Perez-Villanueva and Jose Arnaldo Sacaria-Godoy. They had fled El Salvador and Honduras, respectively, and crossed the desert by foot, where they were chased by immigration agents and lost the food they had brought with them. In the depositions they later gave, they described how a man in Ajo dropped them off at the Barn and they let themselves inside. Warren showed up not long after. They asked him for food and water, and he welcomed them to both. Warren came and went in the days that followed, the migrants said, along with a number of other humanitarian aid volunteers using the space at the time. Warren was indicted a month later on two charges of harboring and one count of conspiracy, bring the total time he faced in prison to 20 years. His trial, which began in late May, ended in a hung jury. With Warren’s retrial approaching, the prosecution and the defense have filed several motions in recent weeks, perhaps none so unusual as the one the government’s attorneys submitted on October 29. “For the first time, the United States learned the defense might mention the President of the United States, Donald Trump, his administration, or his administration’s policies,” the motion read. Such references, the prosecutors argued, “would be irrelevant and unfairly prejudicial.” The idea that Warren’s actions should now be divorced from the politics of the world at large is a new direction for Assistant U.S. Attorneys Anna Wright and Nathaniel J. Walters — though given the events during the last trial, that is perhaps understandable.

While Walters, in his opening statement at Warren’s trial over the summer, insisted that the prosecution was not about No More Deaths, and that the government’s concern was Warren’s actions alone, the nature of the prosecution’s case was something else entirely. Throughout the eight-day trial, Walters and Wright argued that Warren was the lynchpin in a shadowy criminal conspiracy to move people into the country illegally for political purposes. According to the prosecutors, the goal was not to make a profit, unlike most other criminal operations, but to undermine the Border Patrol and further No More Deaths’ political aim of establishing a borderless world. Over and over, both at the trial and pretrial hearings, the prosecutors asked No More Deaths volunteers if they supported the abolishment of Immigration and Customs Enforcement, a policy proposal born in the midst of Trump’s immigration crackdown. Central to the government’s narrative was a characterization of Warren as a deceptive and “high-ranking leader” of No More Deaths who could not be trusted. In an effort to underscore this idea, Walters at one point entered into evidence an article Warren wrote for the Washington Post on the eve of his trial. The bungled and baffling attempt to draw some damning revelation from Warren’s own assessment of the case backfired spectacularly. On cross-examination, Warren’s attorney, Greg Kuykendall, argued that if Walters was going to cherry-pick details from the op-ed, the jury should hear the rest of what was written. District Judge Raner Collins directed Warren to read the piece out loud and, with that, Warren linked his case directly to Trump’s most infamous immigration enforcement policies, from the crackdown on humanitarian aid to the separation of families at the border to a pattern of potentially preventable deaths in the desert. For Warren’s friends and supporters, the introduction of the politics and policies that surround Warren’s prosecution into the official record felt like a turning point, a moment when the people deciding his fate were permitted to see what his case was really all about. In the end, eight jurors chose to oppose Warren’s conviction, while four supported it. In July, when the U.S. Attorney’s Office announced that it would be retry the case, it dropped the conspiracy charge.

Any efforts to prohibit mention of Trump or his policies would violate Warren’s First, Fifth, and Fourteenth Amendment rights under the U.S. Constitution, defense attorney Amy Knight wrote in a motion responding to the government’s request last week. Knight argued that the motion amounted to a request for an “extraordinary ban” with zero “explanation whatsoever of the prejudice” that would result from “daring to mention the President, a man who maintains ultimate authority over this prosecution (notably, the same man who appointed both the United States Attorney General and the United States Attorney for the District of Arizona).” Not only that, she noted, “the government itself introduced the only mention of President Trump into the previous trial, when, while questioning Dr. Warren, it brought up an article he had written expressing some of his views.” Paige Corich-Kleim, a longtime volunteer with No More Deaths, said in a statement to The Intercept that the organization worked “to expose government misconduct and intervene in the border crisis.” “The government’s attempts to erase the political nature of this retrial is part of their continued efforts to hide what is truly happening along the border and evade responsibility for the violence they have caused,” she added. “Deaths on the border are the predictable outcome of not just border militarization, but also U.S. intervention in Latin America. Their attempts to limit the scope of evidence are self serving.”

“The good news is that despite Republican support for very punitive, draconian immigration policies, we seem to have found a limit or a threshold to their nativism.”