In an astonishing move, FBI agents today arrested a state judge in Wisconsin and accused her of criminally helping a migrant to avoid immigration officials. The judge, Hannah C. Dugan, appeared in a Milwaukee federal court today.
Federal prosecutors allege that Judge Dugan directed Eduardo Flores-Ruiz, who was appearing in Dugan’s courtroom for a criminal matter, to leave the courtroom through the door typically used by jurors and court staff. According to a statement by an FBI agent, which prosecutors revealed today, Judge Dugan had learned that a team of six federal agents, including one ICE officer, planned to arrest Flores-Ruiz outside her courtroom. The judge directed the federal agents to speak with the chief judge of the Milwaukee court and later escorted Flores-Ruiz and his attorney toward the jury door, prosecutors claim. Federal agents arrested Flores-Ruiz outside the courthouse.
In a move that is sure to escalate the tension between Trump officials and courts, federal prosecutors say that Judge Dugan committed two crimes: obstructing a federal government proceeding and concealing an individual to avoid arrest. If convicted, Judge Dugan faces up to six years imprisonment.
Assuming that Judge Dugan did what federal agents claim, neither offense is well-suited to the situation. The first offense, obstruction, requires “corruptly” getting in the way of federal agents. Congress has defined corruptly, in this context, to mean “acting with an improper purpose…including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” The most famous prosecution for this offense involved John Poindexter, Reagan’s national security adviser who resigned after his role in the Iran Contra scandal was revealed. Despite having lied to Congress, an appellate court overturned Poindexter’s obstruction convictions, explaining that the word “corruptly” was excessively vague.
The second offense, concealment, hinges on whether the administrative warrant authorizing Flores-Ruiz’s arrest, that federal agents told Judge Dugan they had, is the type of “warrant or process” that Congress had in mind. There is no shortage of cases involving concealment, but all involve a warrant issued by a judge. By contrast, an administrative warrant is issued by ICE. As a result, unlike with a judicial warrant, there is no independent oversight of the strength of evidence on which ICE agents rely in writing administrative warrants. I haven’t found a single case addressing whether someone can be convicted of concealment when federal officials are equipped with nothing more than an administrative warrant.
Regardless of how this ends for Judge Dugan, today’s move is part of the attack on advocates that Trump officials have been promising. Border czar Tom Homan previously asked the Justice Department to investigate Congresswoman Alexandria Ocasio-Cortez over sharing information about immigration law through her official website and a top Justice Department official (and former Trump defense attorney) instructed prosecutors to pursue all immigration-related matters, as I described last month. Prosecutors must flag any decision to not pursue an immigration prosecution for priority attention from Justice Department headquarters in Washington.
Judge Dugan was released from custody today and ordered to next appear in federal court on May 15.
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