DOJ Indicts A Judge

On Tuesday, the Justice Department’s indictment against Wisconsin state Judge Hannah Dugan was made public.

The prosecution is over an incident where federal agents, including some with ICE, wanted to arrest a person they had an administrative warrant to deport either inside or just outside of Dugan’s courtroom. She is now charged with two felony counts:

• concealing an individual from discovery or arrest, in violation of 18 U.S.C. § 1071

• endeavoring to obstruct a federal proceeding, in violation of 18 U.S.C. § 1505

The next day, Judge Dugan filed a motion to dismiss.

It begins, “This is no ordinary criminal case, and Dugan is no ordinary criminal defendant.” With that, we are off to the races in what appears to be a blatantly political prosecution. Regardless of the technical merits of the case, prosecuting a state court judge for actions taken in her own courtroom is hardly a wise exercise of limited prosecutorial resources. There are plenty of less provocative ways to resolve standard operating procedures for federal agents acting inside of a state courthouse, and the goal is always to find ways to work together smoothly and constitutionally. The kind of friction this incident has created will resonate across the country. It is both unnecessary and wasteful and has all the hallmarks of a political show prosecution. Bringing this prosecution looks like a very questionable exercise of prosecutorial discretion, based on what we know.

PACER, the federal courts’ online filing system, reflects all of the activity in this case so far. As we all know, Judge Dugan was arrested, very publicly, after the U.S. Attorney’s office in the Eastern District of Wisconsin obtained a complaint against her, allegedly for harboring and aiding a person ICE wanted to deport for being illegally present in the United States. It took them almost three weeks to go before a grand jury and obtain an indictment.

Judge Dugan filed the motion to dismiss the indictment the following day, yesterday, Wednesday, May 14.

The motion argues that the prosecution is “virtually unprecedented and entirely unconstitutional” because Judge Dugan “is entitled to judicial immunity for her official acts.” And because irony is now dead, the case she cites for that proposition is Trump v. United States, the case where the Supreme Court gave Trump immunity for conduct committed as an official act.

Although the motion to dismiss is based on immunity, Dugan’s lawyers make a larger point, that “The government’s prosecution of Judge Dugan is virtually unprecedented and entirely unconstitutional—it violates the Tenth Amendment and fundamental principles of federalism and comity reflected in that amendment and in the very structure of the United States Constitution.” Then they turn to their immunity argument. That immunity, Dugan’s lawyers advise the court, isn’t a defense to be raised at trial, it’s a bar to prosecution (you may remember this argument from the Trump cases: if immunity is to mean anything, it must immediately bar prosecution, rather than the immune person being subjected to the rigors of prosecution and only have their rights protected down the road). They ask the court to deal with the issue swiftly and dismiss the prosecution.

We have only heard the government’s version of what transpired in court so far. Judge Dugan’s lawyers point that out in the course of raising the immunity argument, “Even if (contrary to what the trial evidence would show) Judge Dugan took the actions the complaint alleges, these plainly were judicial acts for which she has absolute immunity from criminal prosecution. Judges are empowered to maintain control over their courtrooms specifically and the courthouse generally.” They note that under the law, a judge’s subjective motivations are irrelevant to the immunity determination, so long as her acts were official ones, and there is explicit case law holding that “[T]he issuance of an order removing persons from the courthouse in the interest of maintaining such control is an ordinary function performed by judges[.]”

The heart of the immunity argument comes at paragraph 10 of the motion, which reads:

“The government’s prosecution here reaches directly into a state courthouse, disrupting active proceedings, and interferes with the official duties of an elected judge. “A State defines itself as a sovereign through ‘the structure of its government, and the character of those who exercise government authority.’” McDonnell v. United States, 579 U.S. 550, 576 (2016), quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Judge Dugan was elected by the people of Milwaukee County to adjudicate their disputes and administer the laws of Wisconsin. WIS. CONST. ART. VII, §§ 2, 7. The federal government violated Wisconsin’s sovereignty on April 18 when it disrupted Judge Dugan’s courtroom, and it is violating Wisconsin’s sovereignty now with this prosecution. The Court should end the violation of Wisconsin’s sovereignty and dismiss the indictment.”

While this case is largely viewed as a politically motivated prosecution, it is worth noting that the acting U.S. Attorney in the Eastern District of Wisconsin, Richard Frohling, has been in the office since 2000. He has served as the First Assistant, the number two person in the office, since 2015. That means he was in that position for part of the Obama administration and through both the Trump and Biden administrations. He served as the acting U.S. Attorney during the Biden administration. He also served as the Criminal Chief during the Obama administration. In other words, he doesn’t look like a political hack.

The big question, now that a federal grand jury has indicted, is whether the charges against Dugan will hold up in court. If they survive the motion to dismiss, the government will have to prove its charges to a jury beyond a reasonable doubt. Grand juries are instructed that they only need to find probable cause to vote in favor of an indictment. But the standard at trial is much more demanding.

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We’re in this together,

Joyce