Arresting judges is a 5-alarm escalation
What would you say if you saw it in another country?
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What stage of authoritarianism is it when the government starts arresting judges? Because that’s the one we’re at.
Last Friday, Milwaukee County Circuit Judge Hannah Dugan was arrested over allegations that she obstructed justice by helping an undocumented immigrant avoid arrest by Immigration and Customs Enforcement (ICE). Dugan allegedly let Eduardo Flores-Ruiz, who was in her courtroom on misdemeanor battery charges, evade ICE agents by leaving through a side door that led to a non-public part of the courthouse.
Her arrest was conducted with maximum fanfare and designed to terrorize not just Dugan, but anyone else who might not want to assist the administration in its lawless and vicious deportation efforts. Attorney General Pam Bondi made that evident when she went on Fox to call the judiciary “deranged” and to say that the arrest of Dugan was “sending a very strong message today” and that “we will come after you and we will prosecute you.”
Kash Patel, Trump’s tragicomically underqualified and authoritarian FBI director, made sure to post a photo of Dugan’s arrest on X. Not that rules matter any longer, but DOJ policy prohibits disclosing a photograph of a defendant unless it “serves a law enforcement function” or it is already part of the public record.
It’s not just that Dugan was arrested, but also how she was arrested. The whole point was to cause a scene. She was arrested Friday morning in the parking lot of the Milwaukee County Courthouse, complete with handcuffs. There’s no allegation she was a flight risk or was attempting to evade arrest, but the FBI still forced a sitting judge to do a perp walk at her place of work.
Additionally, Dugan was arrested pursuant to a criminal complaint signed by a federal magistrate judge. There’s nothing improper about that as such, but for felonies in federal court, prosecutors must convene a grand jury and present evidence. Only if the grand jury returns an indictment can someone be prosecuted.
Going before a grand jury isn’t a nicety or a minor procedural step. The Fifth Amendment requires it. Arresting Dugan before convening a grand jury was intended to get flashy headlines and whip the MAGA faithful into a frenzy. Even if a grand jury declines to indict Dugan, the administration has succeeded in creating a climate of fear and suspicion.
Recall that although Trump faced 88 charges in four criminal cases for much worse things than what Dugan is accused of, he was always charged by indictment after presentation to a grand jury and allowed to turn himself in. Here he is in Georgia, where he faced 13 felony counts for trying to overturn the 202 election. Here he is in New York, where he faced — and was convicted of — 34 felonies related to falsifying business records to hide his hush payments to Stormy Daniels. New York state was so solicitous of Trump that he didn’t even have to have his mug shot taken. When he voluntarily surrendered in Miami for the classified documents case, he wasn’t handcuffed.
One hurdle prosecutors might have in securing an indictment against Dugan was that ICE had an administrative warrant, not a judicial warrant, for Flores-Ruiz. The criminal complaint obscures this, referring only to a “warrant” or an “arrest warrant” in most places. The only time an administrative warrant is mentioned is when the complaint quotes Dugan saying it.
As much as the administration would like it to be otherwise, those administrative warrants aren’t the same as judicial warrants. Judicial warrants are signed by a federal or state judge or magistrate and must be complied with as long as they are valid. Administrative warrants — also known as immigration warrants — are issued by administrative agencies such as ICE and signed by an immigration judge. Despite also being called judges, immigration judges are not part of the judicial branch. They are appointed by the attorney general and are part of the executive branch.
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When a judge signs a judicial warrant, it’s based on a determination that probable cause exists for a search or an arrest. It must meet the requirements of the Fourth Amendment, which prohibits unreasonable searches and seizures. An administrative warrant does not need to meet those Fourth Amendment requirements, but because of that, it doesn’t authorize ICE agents to search or enter private property, though they can arrest people in public spaces. As Bruce Murphy pointed out in Urban Milwaukee, law enforcement understands the difference. The Milwaukee Police Department's policy is that its members cannot use an administrative warrant as the basis for detaining or arresting someone.
There is a very sound law enforcement reason for not letting ICE arrest people at courthouses, which is that it will lead to people not showing up for court hearings. Under the Biden administration, ICE agents were restricted from making routine arrests in courthouses, though they could still arrest someone if it were a matter of national security or public safety, if they were in active pursuit, or if they believed the person would destroy evidence. Trump rolled that back, along with entirely eliminating the sensitive locations policy. Previously, ICE agents could not arrest people at places like churches, schools, or hospitals.
As with restrictions on courthouse arrests, there are sound reasons for this. Public health is compromised if people won’t seek medical care for fear of arrest. Education is compromised if people won’t send their children to school for fear of arrest. The First Amendment right to practice one’s religion is compromised if people won’t go to church for fear of arrest.
Regrettably, Dugan’s arrest is not unprecedented, as Trump did the same in his first term. Massachusetts state judge Shelly Joseph was indicted in 2019 over similar allegations that she obstructed justice by helping an undocumented immigrant leave a courthouse to avoid arrest by ICE. Tracy Short, then ICE’s chief legal officer, speculated it would be “the first of many” and called it “a great day.” Those charges were dropped in 2022.
The day before Dugan’s arrested, ICE arrested Jose Louis Cano, a former magistrate judge in Doña Ana County, New Mexico, and his wife, Nancy. Cano was no longer a sitting judge, having stepped down in March following the arrest of three Venezuelan nationals on his property in February and allegations he was harboring gang members.
It won’t stop with judges
The response of Wisconsin Republicans to Dugan’s arrest highlights one of the biggest problems we face: The entire GOP is in thrall to Trump, and the notion that the federal government is coming in and arresting state judges seems not to bother them in the least.
Instead, Republicans are seeing it as a political opportunity, urged on by former Gov. Scott Walker, who, despite flaming out in the 2016 presidential race and losing the governorship to Tony Evers in 2018, simply will not go away. Walker said legislators should meet “ASAP” to impeach and remove Dugan. Yeah, because you wouldn’t want to wait to find out more, or see if she’s ultimately convicted, but instead should just force her out now to show complete fealty to Trump.
Perhaps that’s what is most distressing about the immediate response of the Wisconsin GOP. If the Republican stance is that Trump can do no wrong, then there’s no red line, no step too far.
It’s not going to stop with Dugan. It’s not even going to stop with judges. The administration’s position is that state and local officials must assist the federal government in its immigration crackdown or face prosecution. But, as the ACLU points out, Trump already tried this argument during his first term and repeatedly lost in the courts. The administration sued California over its laws that limited cooperation with immigration enforcement and lost. The Ninth Circuit Court of Appeals ruled that states have the right, in this instance, “to refrain from assisting with federal efforts.”
Nevertheless, the administration is also trying to withhold federal funding from sanctuary cities and counties with policies that restrict collaboration with immigration authorities. Several sued, and just won a preliminary injunction that prohibits any freezing or withholding of federal funds. The judge in the case noted that he had addressed a near-identical argument from Trump during his first term and had rejected it back then.
There’s also the pesky 10th Amendment, which says that any power not specifically granted to the federal government in the Constitution is reserved for the states. That means is that federal power is limited, not general. Conservatives love the 10th Amendment because it’s the foundation of states’ rights and the notion that the federal government can’t tell states what to do. The 10th Amendment is also the foundation of the anti-commandeering doctrine, which says that the federal government can’t commandeer states to enforce federal laws.
Conservatives on the Supreme Court are also big fans of the 10th Amendment. Justice Antonin Scalia said the federal government cannot force states to administer a federal regulatory program and that “such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Justice Samuel Alito said that Congress does not have the power to issue direct orders to state governments. But who knows if that deep and abiding love of federalism still exists when it’s the Trump administration forcing blue states to be complicit.
Pam Bondi certainly thinks that the administration has the power to make state and local governments assist with immigration efforts and that it’s appropriate to arrest anyone who won’t. After Dugan’s arrest, she took a victory lap, declaring that “Nobody is above the law, not even a judge.”
Except, thanks to the Supreme Court, there is one person who is above the law, and it’s precisely that immunity that allows Trump to wage his war on immigrants. He has every assurance that his actions will have no consequences for him, and his pardon power allows him to protect everyone else who will break the law for him as well. They don’t have anything to be afraid of, but for the rest of us, it’s terrifying.
That’s it for today
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Thanks for reading.
Thank you so much for this powerful "wake up!" article. Sharing.
I might not be stressed if I thought the Supreme Court was relevant on this. Without Congress to demand the rule of law, and without the Executive to enforce the rule of law, there is no rule of law. The Court can say anything (& much of what Trump does is for show WWE-style) … it’s up to The People to act, now. Local governments and groups, along with everyday people: time to step up.