Coming for the Judges

The Department of Justice targeted a judge in Milwaukee, but its case is already a shambolic embarrassment.

Photo of Judge Hannah Dugan, courtesy of AP

On Friday, federal agents arrested Judge Hannah Dugan of the Milwaukee County Circuit Court. I have waited to comment substantively on the arrest because I wanted to read the complaint and understand the charges, with special attention to the key factual allegations.

Having now reviewed the allegations, as well as witnessed the politicization of this arrest by the Trump DOJ since her arrest, I now feel confident in saying this whole thing is a disgraceful charade.

By way of quick background, Judge Dugan is charged with obstructing a government proceeding and concealing a person to prevent arrest. These very serious charges carry maximum penalties of five and one year in prison respectively.

Her arrest relates to efforts by authorities to detain a migrant named Eduardo Flores-Ruiz, whom federal authorities claim illegally reentered the country. Flores-Ruiz, along with his attorney, was in Judge Dugan’s courtroom on a misdemeanor assault charge at the time everything went down. I want to note three things about this case as it moves forward.

Judge Dugan has a right to run her courtroom

In reading the allegations, one of the first things that jumped out at me was that I.C.E. showed up in Judge Dugan’s court with an “administrative warrant” for Flores-Ruiz. That means an immigration officer signed it. It’s not the same as a “judicial warrant” signed by a fellow judge, which allows for the arrest of a suspect anywhere.

Why does this matter? For starters, administrative warrants don’t grant agents a right to enter private spaces. They must remain in public ones. They also don’t allow them to demand compliance from other officers of the law. And they don’t even necessarily mean a subject is charged with a crime.

As former federal prosecutor Stephen Kravit told the Milwaukee Journal Sentinel, an administrative warrant is “more similar to a subpoena” and utilized as an “investigative tool.” He added, “We wouldn’t allow the courtroom to be invaded for purposes of serving a subpoena.”

Judge Dugan understood the difference and acted accordingly. According to the complaint (and keep in mind, these allegations are the government’s side of the story—we haven’t heard hers yet, so take everything with many handfuls of salt), I.C.E. agents informed Judge Dugan that they had an administrative warrant for Flores-Ruiz, and she responded by telling them they needed a judicial warrant and instructed them to go speak to the Chief Judge about it. The complaint itself actually concedes this:

Judge DUGAN asked if Deportation Officer A had a judicial warrant, and Deportation Officer A responded, “No, I have an administrative warrant.” Judge DUGAN stated that Deportation Officer A needed a judicial warrant. Deportation Officer A told Judge DUGAN that Deportation Officer A was in a public space and had a valid immigration warrant. Judge DUGAN asked to see the administrative warrant and Deportation Officer A offered to show it to her. Judge DUGAN then demanded that Deportation Officer A speak with the Chief Judge. Judge DUGAN then had a similar interaction with FBI Agent B and CBP Officer A. After finding out that they were not present for a court appearance and that they were with ICE, Judge DUGAN ordered them to report to the Chief Judge’s office.

As I’ll discuss below, this likely shows Judge Dugan didn’t have the requisite intent to interfere with anything. She was just doing things by the book, at least as she saw it. If they wanted to take Flores-Ruiz out of her courtroom, she believed they needed a judicial warrant. And that is actually also what the law says.

Let’s paint the broader picture here, too. I.C.E. agents coming into courtrooms—especially where victims of the alleged assault were there to testify—could be, and in fact is intended to be, highly disruptive. Courthouses everywhere are struggling with how to balance the harsh demands of I.C.E. with the need to protect the integrity of judicial processes and not discourage cooperation in criminal matters by witnesses who may be scared of being seized and deported themselves. The judge was fully within her rights to keep this circus out of her courtroom.

Because she was under no legal duty to cooperate fully with the administrative warrant, it’s not even clear how, as an initial matter, under these facts as alleged, she can be charged with having the intent to obstruct a legal proceeding or conceal a person to prevent his arrest.

No strong evidence of her intent to violate the law

Even a cursory reading of the complaint shows there are no strong factual grounds, at least as yet revealed, to support these charges. As journalist Marcy Wheeler notes in her newsletter, quoting from the complaint, Judge Dugan adjourned Flores-Ruiz’ scheduled hearing before she directed him to leave through the jury door.

Defense counsel and Flores-Ruiz then walked toward each other and toward the public courtroom exit. The courtroom deputy then saw Judge DUGAN get up and heard Judge DUGAN say something like “Wait, come with me.”

Wheeler notes, “Flores-Ruiz appears to have gone, via back hallways, to the same sixth floor public hallway via which he had entered the courtroom. According [to] the complaint, both DEA officers saw Flores-Ruiz in the public hallway before he entered the elevator.” She cites these allegations from the complaint itself:

After leaving the Chief Judge’s vestibule and returning to the public hallway, DEA Agent A reported that Flores-Ruiz and his attorney were in the public hallway. DEA Agent B also observed Flores-Ruiz and his attorney in the hallway near Courtroom 615 and noted that [Flores-Ruiz] was looking around the hallway. From different vantage points, both agents observed Flores-Ruiz and his counsel walk briskly towards the elevator bank on the south end of the sixth floor.

Wheeler concludes, “Rather than arresting Flores-Ruiz, whom the officers knew was unarmed, there on the sixth floor, one of them rode down the elevator with him and his attorney and the other alerted the other officers. Four of them convened outside of the courthouse and chased him down the street and arrested him, just 22 minutes after he entered Judge Dugan’s courtroom at 8:43.”

As attorney and Wisconsin Elections Commission chair Ann Jacobs observed, the judge telling Flores-Ruiz to go out the jury door instead of the main door doesn’t change the fact that both lead to the public hallway where I.C.E. agents were waiting. Presumably Judge Dugan understood that. Yet in that hallway, two agents saw Flores-Ruiz there and then do nothing about it, permitting him to leave the building before chasing him down and detaining him.

Why did they do that? Was it to make it seem like Flores-Ruiz nearly got away with the help of the judge? What else explains this cat-and-mouse behavior?

Jacobs adds, quite rightly, “All of which is to say - the attempt to make this into something criminal on the part of the judge who sent him to the public hall where law enforcement was waiting requires a lot of reaching and a lot of work and a lot of pejorative statements designed to taint the complaint.”

Otherwise put, the government claims Judge Dugan’s actions are evidence of criminal intent, but it equally could have been her attempt to minimize disruption to her courtroom, where there were other parties present. It’s not as if she hid him under her robes and tried to spirit him out of the courthouse doors herself.

Moreover, it seems clear that Judge Dugan would have admitted I.C.E. into the courtroom to arrest Flores-Ruiz if they had a judicial warrant. She even asked them to produce one. And when they did not, she referred the matter to the Chief Judge. These are hardly the actions of someone intent on breaking the law.

Making an example… of a judge

Everything the government has done since Flores-Ruiz’s detention has been heavy-handed with a clear, even expressly stated intent to intimidate the judiciary.

Let’s start with a threshold question. Why did the government not first seek a grand jury indictment of Judge Dugan, as would have been customary? That of course would have taken some time to put together. Such investigations should go on for months before an arrest occurs. That’s because before you go indicting judges on nothing more than vibes, you should establish your case with proof beyond a reasonable doubt and present that to the grand jury.

Here, the government understood that while grand juries indict over 90 percent of the time, this could have been one notable and embarrassing exception. The intent to commit these crimes is based entirely on shaky inferences and is clearly rebutted by her own actions demanding to know what authority the federal agents had to come into her courtroom to detain Flores-Ruiz. You also don’t get the Chief Judge involved if your intent is to obstruct justice.

Let’s also look at what happened around the time of Judge Dugan’s arrest. When arresting an officer of the court, out of respect for her station and given that this was an allegation of a nonviolent crime against a pillar of the community, the DoJ could have simply asked her to come in to be booked without any fanfare or publicity. Instead, they sent agents to cuff and perp walk her from the courthouse precisely to maximize the authoritarian messaging: “Not even judges are safe from us.”

Attorney General Pam Bondi then went on Fox to vilify the judge, tainting the potential jury pool, calling her “deranged,” and smearing her good reputation before she’s even had a chance to speak out in her own defense. Fox claimed such judges are “harboring criminals,” and Bondi responded,

“They’re deranged is all I can think of. I think some of these judges think that they are beyond and above the law. They are not, and we are sending a very strong message today ... if you are harboring a fugitive… we will come after you and we will prosecute you. We will find you.”

This statement goes against every norm among prosecutors and is a blatant politicization of this case. Fox, per usual, is complicit in this disgrace.

And still, they weren’t done. FBI Director Kash Patel, who had already posted and then deleted his post about the arrest (nothing shady here, keep moving please), later posted an arrest photo of Judge Dugan on social media with the caption, “No one is above the law.” This was in clear violation of Justice Department regulations against sharing photos about a case that are unrelated to the underlying allegations.

This caption is also the height of irony, given the way that the president to whom Patel reports consistently acts. Of course, perhaps that is the point. This set of authoritarians is acting as if they are above the law, the regulations and the long standing norms of federal law enforcement.

I have no doubt that Judge Dugan will be exonerated. It is shameful in the extreme that she has to fight this and clear her name. But as I wrote over the weekend, if the administration thinks this will cow and frighten the opposition, it is badly mistaken. The abuse of power and unjustified arrest of opponents, including judges, will prove a galvanizing moment.

The public can now associate the faces of victims with our battle to defeat fascism and quest to preserve the rule of law in the U.S. Kilmar Abrego García and Judge Hannah Dugan should become household names. That is how we turn the malice of the government back upon itself while achieving justice for those it has cynically and grotesquely targeted.