Late last month, the Federal Bureau of Investigation arrested Milwaukee County Circuit Judge Hannah Dugan as she was walking into her courthouse. Federal prosecutors filed a criminal complaint against the judge alleging that six days prior to her arrest, on April 18, she obstructed justice in violation of 18 U.S.C. §1505, and that she concealed a person from arrest in violation of 18 U.S.C. §1071. Judge Dugan was presiding over a domestic abuse case against Eduardo Flores-Ruiz that day when she learned that federal immigration agents were planning to arrest him. The complaint alleges that Judge Dugan encouraged Flores-Ruiz to leave her courtroom through a jury door so that he could avoid federal immigration agents who were going to arrest him for being in the country illegally. The jury door, as it turns out, leads to the same public hallway as the main courtroom door where defendants usually walk out, and the agents were waiting in that hallway. Moreover, agents ultimately caught up to Flores-Ruiz in spite of Judge Dugan’s alleged efforts to make arrest inside the courthouse more difficult.
Many legal commentators have criticized the complaint against Judge Dugan as overreach and have noted that it will be difficult to prove beyond a reasonable doubt that Judge Dugan had the intent to prevent Flores-Ruiz’s arrest when she directed him to a door that led to the same public space where the agents were waiting. Others, though, have not been as bothered by the FBI’s actions. Our own Elie Honig, for example, has written that if the allegations against Judge Dugan are true, her conduct went “over the line.”
I am in the camp of those who see criminalizing this type of courtroom management as an improper use of law enforcement discretion. Judge Dugan seemed to be under the view that the chief judge would not allow courthouse arrests – a belief, which if true, could negate criminal intent – and that is a fairly common policy because many judges believe courthouses need to be safe spaces so that victims and witnesses can seek justice without worrying about deportation consequences.
But whatever the ultimate outcome on the merits, it is clear that the Trump Administration is inappropriately politicizing this case. In violation of DOJ policy, agents alerted the media that the arrest would take place when the judge arrived at the courthouse for work. They placed the judge in handcuffs and treated her as if she posed a risk of flight or danger when in the vast run of cases like this one, the FBI would typically allow a defendant to surrender voluntarily after receiving a summons. Former prosecutor Harry Litman has observed that “treating Judge Dugan like a violent, dangerous criminal was obviously designed to score broader political points about the Administration’s wholesale deportations initiative” and “to strike fear into the hearts of other judges.”
Kash Patel issued an ill-advised tweet touting the arrest – also in violation of DOJ policy – before taking it down, and Attorney General Pam Bondi went on a media blitz after the arrest. She told Fox News that Judge Dugan is “deranged” – yet again in violation of DOJ policy – and leveled a broader attack on judges, arguing that “what has happened to the judiciary is beyond me.”
The Trump Administration has suffered many recent defeats and setbacks in immigration cases because of its disregard for due process and overreading of statutes, so Bondi seems to want to use this case to cast doubt on judges overall as being biased against the Trump Administration instead of neutral arbiters of the law. The politicization of this case seems to be part of a larger strategy to undermine the judiciary and deflect attention from the Administration’s losses before judges of all political stripes, including those appointed by Trump himself.
It is not just the public audience that the Administration is trying to manipulate. Arguably, the main goal of bringing this case in this manner – making the judge engage in a perp walk and having the AG disparage her – is to send a message to other judges and public officials that might be inclined not to cooperate with the Trump Administration’s aggressive approach to immigration that they should play ball to avoid a similar fate. If Dugan’s discretionary decision about how to have litigants leave her courtroom can be the basis for a criminal charge, what else might the Administration try to cast in a sinister light?
Because one thing the Administration cannot do under settled law is force judges or other state and local officials to help with immigration enforcement. So-called Sanctuary Cities and other state and local government pledges not to cooperate with federal immigration efforts are grounded in a Supreme Court ruling that the federal government cannot “commandeer” state and local officials to engage in federal law enforcement. In the 1997 case of Printz v. United States, Justice Scalia wrote for a conservative majority that provisions of the Brady bill that required state and local law enforcement officials to conduct background checks on gun buyers violated the Constitution. Justice Scalia’s opinion notes that this division is critical for protecting liberty and avoiding “the risk of tyranny and abuse.”
The arrest of the Wisconsin judge seems designed to get officials to think twice about their opposition to federal immigration enforcement and cooperate to avoid a similar fate to Judge Dugan. It is commandeering by intimidation, and it is the Trump Administration’s go-to tactic in almost every sphere. It is the same basic blueprint it is using against universities, where threats of unlawful funding cuts or terminating tax-exempt status are being used to get universities to “voluntarily” jettison diversity efforts and change their hiring and admissions practices. It is also the modus operandi against law firms, where Trump has issued unconstitutional executive orders to get firms to capitulate to unreasonable demands.
The threats have worked in some cases, with some universities and law firms preferring to give in and give up instead of fighting for the constitutional principles at stake. But others are fighting back. Let’s hope state and local judges and other public officials take the latter course and hold their ground and do not let Judge Dugan’s charges deter them from exercising their discretion as they see fit consistent with the law. Printz is clear that they do not have to do Trump’s bidding, and our liberty depends on public servants fighting for the Constitution – not for Trump.
