Arresting a Judge

Judges across the country are undoubtedly wondering what sort of trumped-up charges might be used to storm into their courtrooms and arrest them if the attorney general of the United States doesn’t like the way they’re keeping order and conducting the people’s business in their courtrooms. Arresting judges isn’t something we should have to worry about in a democracy. But after Friday’s events, where federal agents arrested Milwaukee, Wisconsin, Judge Hannah Dugan to the loud cheering of their bosses, Attorney General Pam Bondi and FBI Director Kash Patel, it’s one more marker of the country’s constitutional distress.

From Pacer: Compliant signed by Magistrate Judge Stephen C Dries

Dugan is charged with obstruction of proceedings before a department or agency of the United States, which carries a maximum penalty of five years in prison, and concealing a person to prevent arrest, which carries a maximum penalty of one year in prison. The allegations relate to efforts by federal agents to arrest a Mexican national, Eduardo Flores-Ruiz, on charges of illegally reentering the United States after being deported. He had not been indicted, and the warrant for his arrest was an administrative warrant issued by ICE, not a warrant issued by a federal judge. Flores-Ruiz was in Judge Dugan’s courtroom on misdemeanor assault charges—no one is saying he shouldn’t face both the state and federal charges.

We’ll get into the government’s specific allegations in a minute. Suffice it to say, the Judge was in her courtroom, trying to keep order and conduct proceedings, and the agents intruded into that space in a manner that is inconsistent with the way federal agents are, or at least used to be, taught to respect courtrooms.

There are practical implications too. If ICE can make arrests in courtrooms, defendants simply won’t show up. Witnesses may be hesitant too. People may become less willing to report crimes in immigrant communities. The ability of police to enforce the law, to obtain witness testimony, and to protect communities could be seriously hampered. This is not new territory. It’s been plowed again and again. ICE is free to make their arrests. They can do it outside of the courthouse—there are a limited number of exits. In some courthouses, they can do it in public spaces, but this courthouse in Milwaukee was still in the process of determining its policy, so Judge Dugan asked the agents to speak with the chief judge before they proceeded. An eminently reasonable request.

We don’t yet know the reason she escorted Flores-Ruiz out the side door of her courtroom that led to her jury box, and also back out to the main hall, according to one person familiar with the courtroom. But it makes sense, since the main hall is where they ended up and where agents saw them, following them out of the courthouse. It doesn’t sound nefarious, and even if the Judge took unusual steps to preserve public safety or order in her courtroom—we haven’t heard her version of the facts yet—it hardly rises to the level of criminality. She returned to the bench to continue with her docket after the incident; that’s hardly the conduct of a hardened criminal.

But here’s Attorney General Pam Bondi:

“What has happened to our judiciary is beyond me,” Bondi told Fox News, commenting on Judge Dugan's arrest. “They’re deranged. I think some of these judges think they are beyond and above the law, and they are not. We are sending a very strong message today: If you are harboring a fugitive, we don’t care who you are. If you are helping hide one, if you are giving a [gang] member guns, anyone who is illegally in this country, we will come after you, and we will prosecute you. We will find you.”

Condemning the entirety of the judiciary in 50 states on the strength of two indictments is going overboard. And that’s precisely what we count on the attorney general of the United States not to do. It’s a position that calls for a calm, measured individual who gets the facts straight and understands the rules, because if they don’t, individuals’ rights get trampled upon and due process gets denied.

But what’s going on here is something more. It’s the negligent wave of the hand at “our judiciary,” a weak, sloppy, willingness to undercut the public’s confidence in an entire branch of government at the state level across the country in order to push Trump’s political agenda on immigration. As attorney general, Bondi’s job is to serve the president who appointed her but keep him at arm’s length when it comes to bringing cases against individuals.

My husband is a state court judge. It’s far too easy for me to imagine federal agents entering courtrooms across the country to arrest state court judges for running their courtrooms as they see fit. Getting rid of inconvenient judges on the path to autocracy is a well-worn step for would-be dictators to take. Viktor Orban did it in 2012 in Hungary, using forced retirements to strip out judicial opposition to his plans, despite a finding by the EU court that his steps were inconsistent with EU law. Perhaps in America in 2025, arresting a few judges in hopes of intimidating the rest is considered an easier path to get to the same place without the risk that seven judges on the Supreme Court might rule against you. Arrest judges in places like Milwaukee a few times, and on top of the threats to impeach federal judges who rule against the administration, a president might be able to create a climate of fear that would keep the rest of the judiciary in line. Dictators are adept at eroding democracy into a shell of itself, little more than an empty facade. Interfering with the judiciary is one of the keys to getting there.

Judges do get arrested for legitimate reasons from time to time. We had one of those cases in my office when I was a young prosecutor, and the nature of the alleged crimes is instructive. Jefferson County Circuit Judge Jack Montgomery’s house was searched pursuant to a warrant authorized by a federal judge in October 1993, and FBI agents found thousands of dollars in cash in his home. We indicted him on extortion and racketeering charges. Judge Montgomery was found shot dead in his home before a trial could take place. But despite the outcome of the case, no one had doubts it was the type of case the federal government should be prosecuting, as long as the evidence was solid. The charges were serious, involving corruption of the judicial system and interference with justice.

That’s a far cry from charging a judge with obstruction of justice and harboring a fugitive because a judge let a defendant out a side exit in her courtroom that fed him back into the main hall, which is what happened to Hannah Dugan. We don’t know all of the facts yet, and it’s important to remember that. But, we do have the government’s version—it’s the judge’s side of the story that is yet to be told. And the government’s version isn’t compelling. Even those who staunchly believe in mass deportations may find that prosecuting a judge for maintaining order in and around her courtroom is a bridge too far; the overblown allegations and absurd effort to connect the dots and come up with a crime in the affidavit used to obtain an arrest warrant don’t meet the standard of proof beyond a reasonable doubt.

Americans understand how outrageous this is. In Milwaukee, they flocked into the streets outside the courthouse by midday to protest. Suddenly, everyone was aware of what had happened, and there were protests in other cities too. Even at this early stage, there are some real questions about how the government is proceeding and the merit of the charges:

• Why was the Judge arrested? Normally, in cases like this that don’t involve violence or risk to the community, or where there’s some indication that a defendant might flee, a case goes to the next grand jury. If an indictment is issued, the defendant receives a notice to appear in court for arraignment. Arrests like this one are unusual. Here, it appears to be an effort to sensationalize the case in a way that is unnecessary and seems designed to intimidate this judge and other judges. The government will still have to take the case to a grand jury to obtain an indictment within the next few weeks, or face a preliminary hearing in court, where they would have to present all their evidence —a step federal prosecutors typically avoid. I’m not sure I’ve ever seen a case where that happened, although there may be a few out there.

• Why arrest her at the courthouse? Again, this is just an effort to sensationalize the case and intimidate other judges. She could have been safely arrested at her home. There is absolutely no doubt that if they had advised her of the situation, she would have turned herself in to be booked. In essence, this is the biggest, most outrageous perp walk of all time, complete with a tweet from the Director of the FBI.

• State court judges have legitimate concerns about ICE operating inside of their courtrooms and courthouses. The agents were always going to get their guy. But the language in the affidavit reflects no respect for any of the Judge’s concerns, describing her as becoming “visibly angry” and calling their conduct “absurd” as though that was somehow objectionable on her part.

• The affidavit used to obtain the arrest warrant for the Judge seems to view every action in the worst possible light. The defendant and his lawyer, after leaving the courtroom, walked down the hall to the elevators, passing one bank and heading to the next. Sounds suspicious if you read the agent’s affidavit. Except that the facts are, they walked past a bank of elevators that went to the parking lot and entered one that took them to an exit on the main floor that they used to leave the building. The agent’s complaint that they spoke Spanish in the elevator, and that he doesn’t, isn’t even worth addressing. At one point, the affidavit seems to object to the Judge walking down “a non-public hallway from which she could access her courtroom and chambers—a pretty standard way for judges to enter their courtroom. Courts are used to relying on agent’s relating the facts in a good faith manner. That’s simply not the case here, and the affidavit contains multiple inconsistencies and overreaches. You can read the complaint here and the DOJ press release here.

• The government has to prove the Judge intended to obstruct justice when she permitted the defendant to leave her courtroom through the side door, and that’s difficult to do. We know that intent is often the most challenging issue prosecutors face. Here, when the defendant leaves the Judge’s courtroom and goes into a space where agents can, and in fact do, apprehend him, it’s going to be hard to show she had “an improper purpose,” as the law requires, and was trying to prevent them from going about their business. We still don’t know what all of the evidence is, but on its face, this looks like a burden the government will have difficulty overcoming.

• As for harboring a fugitive, part of what the government would have to prove involves establishing the Judge actually harbored or concealed the fugitive. There is legal precedent that explains harboring means giving someone a place to stay or caring for them while they’re hiding from law enforcement. The government would also have to prove beyond a reasonable doubt that the Judge intended to prevent the fugitive's discovery or arrest. Unless the government has more evidence, that looks like a heavy lift here.

Given all of these concerns, legal, factual, and policy, you would expect prosecutors to take their time to think things through instead of jumping in with a precipitous and highly public indictment. The concerns take us back to the question of why the case was charged at all, and the answer is that the motivation has little to do with what Judge Dugan did here. Trump is coming for the judges. It will be up to all of us to stand with them.

We’re in this together,

Joyce

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