Justice Strikes Back
On Friday, the federal government arrested a Wisconsin state court judge for obstructing and impeding the federal government. The judge helped an undocumented immigrant escape.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the District of Maryland, a man was indicted for material support of terrorism when he raised money for and ordered attacks by groups in Cameroon who are fighting to establish their own nation.
In the District of Columbia, an internet company was indicted for obtaining and selling synthetic fentanyl.
In the Eastern District of Virginia, a former CIA officer entered a guilty plea to gaining unlawful access to national security information and acting as an unregistered foreign agent. Upon his retirement, the former CIA officer began lobbying for a group with foreign clients and accessed national security information to assist them.
Updates…
The US Attorney’s Office for the Southern District of New York continues its transition. The President’s nominee for US Attorney, Jay Clayton, was named interim US Attorney last week. This occurred after New York Senator Chuck Schumer threatened to place a hold on the President’s nominee. Clayton becomes the third interim US Attorney in the last three months. Last week also saw the resignation of three more Assistant US Attorneys. All three resigned after being placed on administrative leave for their work on Mayor Eric Adams’ criminal case. They say they resigned after the Justice Department required they admit wrongdoing in the case.
In an Executive Memorandum, President Trump instructed the Justice Department investigate a grass roots Democratic fundraising organization, ActBlue, based on allegations that the organization raised money from foreign contributors.
Bring in the Judge…for her arraignment
Upon assuming the Attorney General position, Pam Bondi warned people that if they harbored illegal immigrants they would be prosecuted. On Friday, she added teeth to her warning as the FBI arrested a Wisconsin state court judge on two federal felonies. The incident raises several important concerns. First is the charge itself. The judge does not face immigration-related charges under Title 8 of the US Code. Instead, the charges a more akin to obstruction of justice. Second, the judge was not given the opportunity to surrender to authorities. Instead, she was arrested outside the courthouse. Third, the judge is a state court judge. This raises federalism concerns. Finally, one must wonder whether this is a test case or just an ad hoc response to the judge’s conduct.
The incident at the heart of the case occurred on April 18 at the Milwaukee County Circuit Court. Judge Hannah Dugan, first elected to the bench in 2016, had Eduardo Flores-Ruiz on her misdemeanor docket. He was charged with domestic assault for a fight at his residence where neighbors complained about his music volume. Prior to the docket call, Immigration and Customs Enforcement agents identified Flores-Ruiz as being in the country without authorization. Flores-Ruiz had entered the United States unlawfully prior to 2013. In 2013, he was removed by federal immigration officials. Sometime after that, he returned to the United States without authorization. An immigration judge had been informed of this and issued a warrant for Flores-Ruiz’s detention pending further immigration proceedings.
On the morning of the 18th, several federal law enforcement agents arrived at the courthouse, informed security of their reason for being there, and were directed to the court. Once at the court, they informed the courtroom deputy who they wished to detain. The courtroom deputy told the agents to wait until after docket call, as this was standard practice. The agents agreed. As happens amongst the small courtroom community, word reached Judge Dugan. It seems this was not the first time that federal agents visited the courthouse. Upon learning of the agents’ presence, Judge Dugan left the bench to her chambers. She then went to confront the federal agents, who were waiting in the hallway outside her courtroom. They showed her the administrative arrest warrant. She told them to speak with the chief judge of the courthouse. Judge Dugan then returned to her court, spoke with Flores-Ruiz’s counsel, and escorted the attorney and Flores-Ruiz through the courtroom’s jury room door, something highly unusual in the courtroom. Once the federal agents realized what happened, they located Flores-Ruiz outside the courthouse and took him into custody.
It took the federal prosecutors one week to file its criminal complaint in the United States District Court for the Eastern District of Wisconsin. When Attorney General Bondi issued her warning, she said that the Justice Department would pursue those who “harbor” illegal immigrants. The term “harbor,” in the world of federal criminal prosecution, invokes a specific statute, 8 USC 1324(a)(1)(A)(iii). It prohibits anyone who knows a person is in the United States unlawfully from “harboring” the person in any place. Generally, harboring means sheltering or hiding the person. Rather than invoke this statute—likely because the judge aided his escape rather than hiding him—the Government chose two statutes found in the criminal code (as opposed to Title 8, the immigration code).
The first charge is 18 USC 1505. It prohibits obstructing or impeding a proceeding before a department or agency of the United States. The statute has two parts. The first only applies to antitrust investigative demands. The second requires the person act “corruptly”, by threat of force, or by any threatening communication to influence, obstruct or impede or attempt any of those the due and proper administration of law. There was no threat nor was there any communication. Thus we are left with whether the judge acted corruptly. This raises an interesting issue. The judge will argue that she did not act corruptly. The statute provides a specific definition for “corruptly.” It mean the person must act “with an improper purpose…including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” This is similar to the provision the US Supreme Court restricted in Fischer v United States last term. This means that corruptly is limited to conduct similar to what is listed. In this case, the judge’s conduct likely does not qualify. At least that is an argument the judge’s defense counsel will likely make.
The second charge is 18 USC 1071 which prohibits harboring or concealing a person who whom an arrest warrant has been issued and the person doing the harboring or concealing has knowledge of the warrant. This charge is interesting because 8 USC 1324 uses the same language. Why not use that statute? Regardless, the main issue remains the same: did the judge conceal Flores-Ruiz by showing him out of the courtroom by a side door? According to federal courts, concealing requires some form of affirmative act. Lying about the person’s location or providing financial assistance is not sufficient. However, closing a door on law enforcement would be sufficient. In this case, the government alleges that the judge “escorted” Flores-Ruiz and his attorney through the door. What exactly this means will likely be a central feature of this case.
Beyond the case’s legal merits, the case raises several other concerns. The charges come amidst repeated comments by the US Attorney General and others condemning judges. To be fair, the comments condemning judges have been federal judges who rule against the administration. The arrest of the judge took place outside the courthouse. This is also highly unusual for nonviolent offenders. Generally, the government would allow the defendant an opportunity to surrender to law enforcement. For example, when President Trump was charged with federal offenses, federal agents did not go to Mar-A-Lago to arrest him. This is also the prosecution of a state judge for conduct occurring within the judge’s courtroom. At least on the surface, such conduct implicates federalism concerns. The current US Supreme Court is very sensitive to the federal government overstepping its bounds and intruding into state government. Ultimately, the federal government’s conduct in this case will not amount to a legal defense for the judge, it does show a lack of concern for state authority. It is also consistent with the Justice Department’s repeated statements that it will target states and local jurisdictions who provide sanctuary for illegal immigrants.
This leads to the question of why prosecute this case. The answer is that this is designed to send a message. The Attorney General made this point clear when she was interviewed on Fox News. "I think some of these judges think they are beyond and above the law and they are not, and we're sending a very strong message today. If you are harboring a fugitive, we don't care who you are. If you're helping hide one, if you are giving a TDA member guns, anyone who is illegally in this country, we will come after you and we will prosecute you. We will find you." The Wisconsin judge’s arrest was not the only one. A retired New Mexico judge was also charged with permitting an alleged Tren de Argua member to stay at the judge’s property. Through these prosecutions, the Justice Department demonstrates it seriousness about prosecuting people connected with illegal immigration.
The emphasis on a certain crime category is not new or unusual for the Justice Department. Defining federal prosecutorial priorities dates to George Washington’s presidency. What is different, at least in the post-Watergate era, is that prosecutorial decisions are made more hastily, seemingly without regard to the case’s legal viability. In the long term, this will likely lead to more jury trials that will consume more prosecutorial resources. As the Department sheds career attorneys, how the Government performs in these trials will be something to watch.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!