The immunity that public officials need to do their jobs is not a get-out-of-jail-free card for their nonofficial acts.
The immunity that public officials need to do their jobs is not a get-out-of-jail-free card for their nonofficial acts.
A s our Kamden Mulder reports, Wisconsin State Judge Hannah Dugan, who attempted to help an illegal alien evade capture by federal agents, was found guilty of felony obstruction by a federal jury on Thursday. Illogically, the jury acquitted Dugan of concealing a person from arrest, a misdemeanor.
The contradictory outcomes suggest that the verdict was a compromise arrived at by jurors in Milwaukee, a so-called sanctuary city. There, voters habitually elect Democrats who, like the progressive Judge Dugan, oppose rigorous enforcement of federal immigration laws.
I am thus not surprised that the jurors obviously struggled with the case. As I contended when Judge Dugan was charged, she had a defense — the same defense President Trump employed to great effect before the Supreme Court: the notion that because his alleged criminal misconduct took place within the broad context of his duties as a public official, he should enjoy immunity.
To be clear, I didn’t say the case against Dugan would necessarily be thrown out or that she’d be fully acquitted — and I certainly did not believe she should be. I merely pointed out that she had a defense and the case would not be a slam dunk for prosecutors.
The silver lining is that in Milwaukee, as I suspect is true in most blue cities, the public elects Democrats because Republicans are not competitive. Most voters may be center-left, but that doesn’t mean they are as radically progressive as their political class and its partisan base — the activists who impose sanctuary policies.
In the end, Dugan violated the law, and the jurors, who swore to follow the trial court’s legal instructions, found her guilty — at least on one charge.
Dugan was arrested last April after trying to help a Mexican named Eduardo Flores-Ruiz exit the state courthouse, knowing that federal immigration agents had been waiting in the hallway outside her courtroom to arrest him. The agents had a removal order issued for Flores-Ruiz by a Justice Department immigration judge. He had snuck back into the United States after being deported a dozen years earlier. Illegal aliens, especially if they commit crimes, are subject to removal, which is an expedited deportation process; reentry after deportation is a felony.
The federal agents knew that Flores-Ruiz was scheduled to appear in Judge Dugan’s court on April 18 for a pretrial conference in a state criminal case against him on charges of domestic battery. Upon learning that the federal agents were outside her courtroom waiting for Flores-Ruiz, Dugan presumptuously summoned Judge Kristela Cervera, a junior colleague who was hearing cases in an adjacent courtroom, to join her in confronting the federal agents. They directed the agents to report to the office of the courthouse’s chief judge to further discuss the matter.
Quite apart from Milwaukee’s sanctuary policies, state judges obviously do not want their courthouses to be used by federal authorities for arrests. If that were to become a known practice, it would discourage state defendants and witnesses — especially non-Americans whose immigration status could be questioned — from showing up for required court appearances. By contrast, if police have an arrest warrant, executing it in a courthouse is an attractive prospect because the suspect is highly likely to be unarmed (having gone through a magnetometer upon entry).
While the agents were diverted, Dugan returned to her courtroom and directed Flores-Ruiz and his lawyer to accompany her through a corridor whose access was limited to court personnel. That enabled him to bypass the agents and exit the courthouse. He was nevertheless chased down and arrested by two agents out on the street. As Kamden notes, he has since been deported.
It appears that two things undermined Dugan’s defense that she was supervising her courtroom as a state judicial officer rather than obstructing federal agents.
First, Judge Cervera testified for the prosecution and was a very effective witness. She said she felt uncomfortable being pointed at and directed by Dugan to come into the hallway, believing judges should wear robes only in their courtrooms, where they properly wield power, not in the public hallway. Judge Cervera recalled that the federal agent with whom they spoke was respectful, while Dugan became increasingly angry and undiplomatic. Cervera also expressed surprise when Dugan left the area of the chief judge’s office to go back to her courtroom; she said she was “shocked” upon learning that Dugan had helped Flores-Ruiz get out of the courthouse. “Judges should not be helping defendants evade arrest,” she testified, further telling the jury, “I was mortified. I thought that someone might think that I was part of some of what happened.”
Manifestly, such testimony from a modest judge, properly mindful of decorum and the limits of her authority, made it difficult for defense lawyers to convince jurors that Dugan had acted properly, within the bounds of her duties.
Second, Dugan chose not to testify. While a defendant has a Fifth Amendment right to remain silent, and trial judges instruct juries that no negative inference may be drawn against them if they choose not to give testimony, one would have thought Dugan would be her own best witness. At 66, she is a very seasoned legal practitioner, had been a judge for nine years, and presumably has no criminal record of consequence. One would have assumed she’d be anxious to take the witness stand and explain why what she did was proper rather than criminal — surely the jury would have wanted to hear that. She instead declined to testify, leaving Judge Cervera as the jurors’ unrebutted exemplar of judicial probity.
Dugan faces a statutory maximum of five years’ imprisonment. I expect, given her lack of a criminal record and prior good reputation, that she will get little or no jail time, but that she will be removed from the bench.
The office of the Trump-appointed interim U.S. attorney in Milwaukee is to be congratulated for presenting a well-constructed case. That said, I’m not sure it’s appropriate for Main Justice to crow about how “no one is above the law.”
The White House, echoed by the Trump DOJ and the president’s allies in Congress, has peddled a storyline that, because Democrats coordinated the cases against their nemesis with an eye toward doing maximum political damage to him, the two federal cases against the president must have been baseless. Trump has called for Biden DOJ special counsel Jack Smith to be “investigated and put in prison.” Three senior FBI agents who were fired are suing FBI Director Kash Patel, Attorney General Pamela Bondi, their agencies, and the administration, alleging (among other things) that Patel admitted that he was being pushed to purge agents who were just doing their assigned jobs in working on the cases against Trump. (One plaintiff, Brian Driscoll, the bureau’s former acting director, maintains that Patel told him, “The FBI tried to put the president in jail, and he hasn’t forgotten it.”)
But let’s remember, the Supreme Court did not throw out the two federal cases against the president. Indeed, the justices never reviewed the Mar-a-Lago documents case, in which the charges appeared quite strong. (It was thrown out by the lower court, not on the merits but on a technicality related to whether Jack Smith was properly appointed as the Biden DOJ’s special counsel.)
In Trump v. United States, the Court conclusively suppressed only one aspect of Smith’s January 6 case — finding that Trump had immunity in giving direction to the Justice Department, even if it was direction to pump up unsubstantiated fraud allegations. The Court sent the rest of the four-count indictment back to the lower court to determine whether Trump had immunity for acts that were not within his core executive authority. In fact, Justice Amy Coney Barrett, who voted with the majority, nonetheless observed in her separate opinion that Trump should have no immunity for private political conduct that was outside presidential duties. (See Justice Barrett’s concurrence, p. 3 & n. 2, assessing that there was “no plausible argument for barring prosecution” of the allegation that Trump attempted to organize alternative slates of electors for the purpose of corruptly influencing Congress to invalidate electoral votes for Biden.)
The prosecutions against the president were dropped (at least for now — and probably for good when he inevitably pardons himself) only because he won the election, not because he won the cases. Long-standing Justice Department guidance holds that a sitting president may not be prosecuted. Hence, unlike Judge Dugan, President Trump never had to try to convince a jury of his claim that allegations of criminal behavior should be overlooked because of his exalted public office.
It is certainly true that, in America, no one is above the law, and the immunity that public officials need to do their jobs is not a get-out-of-jail-free card for their nonofficial acts. That’s the lesson of Judge Dugan’s case. It would be nice if the Trump DOJ acted as if equal justice under the law was a principle that applies to every American — judges, the president, and the president’s political foes.