Her team will argue that, when intervening in the case of an illegal immigrant, she was acting within the scope of her official duties.
Her team will argue that, when intervening in the case of an illegal immigrant, she was acting within the scope of her official duties.
T here isn’t any doubt that Hannah Dugan, the progressive judge who sits on a Wisconsin state court in Milwaukee, tried to help an illegal alien evade arrest. Her conduct was egregious. That doesn’t make it indefensible. No one should know that better than Trump supporters.
The alien, a Mexican named Eduardo Flores-Ruiz, is a serial immigration-law offender, who is illegally in the United States yet again after having been deported a dozen years ago — making him not just automatically removable but liable to felony prosecution. (Contrary to what transnational progressives claim, it is a crime to enter the United States illegally, but the crime is a misdemeanor; reentry after removal, however, is a felony, and the penalty can be severe depending the alien’s criminal record.)
Beyond that, Flores-Ruiz was in Judge Dugan’s court facing three criminal charges of battery, domestic abuse, and infliction of physical pain or injury. The proceeding in state criminal court on April 18 was a pretrial conference at which his alleged victims were present.
In a sensible world, two things would have made it impossible for Flores-Ruiz to go on the lam that morning. First, he would have been detained pretrial on the state domestic battery charges, given the abundant evidence that he was both a danger to the community and a flight risk. Second, a federal detainer would have been lodged with the state corrections department so that federal agents would be notified to take custody of him the moment his state prosecution and any sentence were concluded.
In our world, however, Milwaukee is hostile to immigration enforcement, even if it hasn’t formally enacted “sanctuary” ordinances. When an arrest is made, the city does not inquire into an arrestee’s immigration status. And its corrections department neither notifies the federal Immigration and Customs Enforcement (ICE) agency in advance of an illegal alien’s release from state custody nor agrees to detain illegal aliens for a few days beyond their state incarceration terms so that ICE can get there and take them into federal custody in the safety of the state prison.
So yes, a Democratic-controlled city and its officials, Judge Dugan included, are the primary culprits in Flores-Ruiz’s attempted flight from federal officers who were armed with a warrant for his arrest. They deserve our disdain. That said, if you think the obstruction prosecution of Judge Dugan will be an easy one, you were not paying enough attention to the Democrats’ lawfare campaign against now-President Donald Trump, including its charges of obstruction that were zealously opposed by such Trump loyalists as now–Attorney General Pamela Bondi and the FBI’s current director, Kash Patel.
Hence, I am going to say something analogous to what I said throughout anti-Trump lawfare: We are not talking here about Dugan’s moral or political culpability. We are talking about whether proof beyond a reasonable doubt can be established in the criminal justice system, in which she is presumed innocent and enjoys important legal protections — including the skepticism of federal courts that criminal prosecution is an appropriate vehicle for addressing the actions of public officials within the scope of their authority.
Before my nearly 20 years as a federal prosecutor, I worked for several years at the U.S. Marshals Service in court and witness security. I can tell you as sure as you’re reading this that if city police had tried to pull in federal court what the feds did in Milwaukee municipal court on April 18, there would be hell to pay.
Federal agents decided to use the opportunity presented by Flores-Ruiz’s court appearance in connection with state criminal charges to arrest him federally. It appears that, in response to sanctuary policies, the feds have begun to make a practice of this at the Milwaukee state courthouse. This is the third time such furtive operations have caused a public disturbance.
Now, again, let’s stipulate that the real problem here is Democratic sanctuary policies. Nevertheless, the reasons that blue cities and states are able to refuse to cooperate with federal immigration enforcement should not be overlooked.
First, at the time of the Founding, the states had principal authority over who was permitted in their territories; it was the federal role in immigration enforcement that was dubious. Over several decades, federal courts gradually teased a federal role out of Congress’s constitutional responsibility for naturalization terms and the national government’s duty to secure the borders. Inexorably, once the federal courts discovered a federal role, they enabled federal power to swallow state power — to the point that, during the Obama and Biden administrations, federal courts allowed red states that wanted to support Congress’s immigration laws to be straitjacketed by executive nonenforcement policies.
Second, the feds haven’t quite extinguished state sovereignty. The law is that, while the states may not obstruct federal law enforcement, the feds may not commandeer state resources to enforce federal law.
It is not always easy to discern the line where the refusal to be commandeered crosses into obstruction. My reference above to the lodging of federal detainers in state detention centers is a good example. When the feds lodge a detainer, they are in effect asking the state for a favor: Expend resources either to hold an alien for a little extra time until ICE can get there to claim him, or to set up an administrative system by which the state corrections department notifies ICE that an alien is about to be released. The states should do this to help enforce immigration law, but the feds can’t make them do it because that would be commandeering. It would be obstruction if a state actively hid an illegal alien from federal agents; but it is not obstruction for a state to release the alien from custody, even if the state knows the feds want to arrest him.
The feds, moreover, must respect state sovereignty in the enforcement of state law. It is a doctrine of federalism that federal courts resist interfering in state criminal prosecutions. (You may recall that the federal court in Manhattan rebuffed Trump’s effort to get it to intervene against Manhattan DA Alvin Bragg’s indictment against him for alleged private misconduct.) The federal executive branch, too, is supposed to avoid impeding state law enforcement — it is no more appropriate for the feds to obstruct the state in its proper functions than for state officials to obstruct proper federal functions.
Trust me when I tell you that the federal agents who planned to arrest Flores-Ruiz in the state courthouse would never have done the same thing in a federal courthouse. They didn’t tell Judge Dugan or the chief judge of the court that they were coming. They didn’t alert court security personnel or the local police. In the federal system, agents of the executive branch would have understood that they did not have carte blanche to conduct enforcement operations in a federal courthouse — the judiciary’s turf. They would not conduct a planned, non-exigent arrest in a courthouse without first ensuring that they had the cooperation of the chief judge, any judge whose cases might be affected, and the court security personnel. The Justice Department would grasp that if the federal judiciary believed that law enforcement agents of the executive branch were exploiting the courts’ administration of justice, it would not go well for the DOJ in the many law enforcement initiatives — search warrants, wiretaps, grand juries, trials, etc. — for which they need the federal judiciary’s assistance.
Because of federalism principles, federal law enforcement agencies should arguably be more solicitous of state courts and state law enforcement. At a minimum, they should show the state respect equal to what they show federal counterparts.
They didn’t in this instance. The criminal complaint indicates that, before she escorted Flores-Ruiz and his lawyer out of her courtroom through a jury room corridor inaccessible to the public, and thus inaccessible to the federal agents, Judge Dugan and another (unidentified) judge demanded that the agents come with them to consult the chief judge of the courthouse. The federal agents did not resist this because they obviously knew that what they were doing was edgy. The state judges had legitimate reason to be angry: If it becomes publicly known that defendants who show up as directed for state court proceedings may risk federal arrest, many of them will not show up for state proceedings, which will put a significant strain on state resources.
And notice: I said just above that the federal agents did not have access to the nonpublic area that Dugan used to help Flores-Ruiz try to evade arrest. That’s because, while the federal agents had an administrative arrest warrant, they did not seek a search warrant from a federal judge permitting them to make an arrest anyplace on the grounds of the state courthouse. As the complaint details, the state judges were upset that the federal agents did not have a warrant issued by a federal court. Clearly, if the agents had asked, a federal judge — more sensitive to interstate comity with state courts than the Trump administration’s agents were — might well have said no.
The federal agents were understandably concerned for their own safety and that of the public. They like to make arrests in the public area of the state courthouse because the target will have had to go through a magnetometer and other security upon entering the building. Consequently, if they can corner the target in a public area of the building, he is likely to be unarmed and have minimal chance of fleeing.
Even so, it’s not as though there is no risk of a violent confrontation. A courthouse isn’t just any building with common areas open to the public. The potential of violent confrontations in a courthouse is disruptive of the state’s administration of justice. State courts are not police departments. The judicial department, whether state or federal, strives to present itself as a fair arbiter between law enforcement and accused criminals; it does not want to be seen as an instrument of law enforcement.
The state authorities will also be disturbed by the Trump administration’s intention and manner of making an example of Dugan. We needn’t approve of her behavior to acknowledge that she is neither a flight risk nor a danger to the community. That’s why she was ultimately released on her own recognizance, apparently without objection from federal prosecutors. Yet, rather than notifying her or her lawyer of the federal obstruction charges and allowing her to surrender at an agreed-upon time for processing, federal agents arrested the judge at her courthouse. She was photographed being marched through the street in handcuffs by three agents. FBI Director Patel made a point of posting the photograph on social media.
Finally, remember what President Trump’s defense was when he was charged with obstruction and other offenses by Biden DOJ special counsel Jack Smith? He claimed immunity from prosecution because the actions at the heart of Smith’s indictment — the unsubstantiated public allegations of election fraud, the attempt to browbeat the Justice Department into supporting those allegations, the provocative speech on the Ellipse, the failure to take timely action to ask the Capitol rioters to stand down — were all taken while Trump was president. His lawyers argued that, even if those actions appeared unseemly, none of them was illegal per se, and all were within the scope of his broad executive power.
This defense was very successful, to the point that Trump’s highly political Justice Department is trying to rewrite history to say that the real abuse of power was Smith’s prosecution, not Trump’s actions (notwithstanding that he was impeached by the House and that the Senate vote against him was 57–43 — lopsided, though short of the two-thirds needed for conviction).
This is going to be Dugan’s defense: She was acting within the scope of her official duties, it is not illegal per se to allow a defendant and his counsel to leave the courtroom by a limited-access route, and her actions were consistent with her judgment regarding the proper administration of the state judicial system, which the federal agents — ignoring principles of federalism — were disturbing with their covert arrest operation. She will say she was not hiding Flores-Ruiz; as a city official, by allowing an illegal alien to leave a state facility, she was declining to be commandeered into assisting federal authorities in enforcing federal immigration law, just as the Milwaukee corrections department does, consistent with the city’s sanctuary policies.
Will that defense work? I don’t know. I do know it won’t get laughed out of court by a Milwaukee jury.