Milwaukee County Judge Hannah Dugan last month entered a not guilty plea to charges of helping an illegal immigrant facing battery allegations evade federal law enforcement authorities. Even if she did sneak previously-deported Mexican national Eduardo Flores-Ruiz out the back door of her Milwaukee courtroom as she is accused of doing, her attorneys claim she “has absolute immunity from criminal prosecution.”
Not quite, says constitutional law expert Hans von Spakovsky.
“That is an absolutely ridiculous claim,” the senior legal fellow at the Heritage Foundation told me on a recent episode on The Benjamin Yount Show in Milwaukee.
Dugan’s dream team of lawyers, including former Solicitor General Paul Clement who served under Republican President George W. Bush, argues that the charges should be dismissed. Under absolute immunity, the judge is free to do what she pleases in her courtroom because “judges are empowered to maintain control over their courtrooms specifically and the courthouse generally.”
“The problems with this prosecution are legion, but most immediately, the government cannot prosecute Judge Dugan because she is entitled to judicial immunity for her official acts. Immunity is not a defense to the prosecution to be determined later by a jury or court; it is an absolute bar to the prosecution at the outset,” her attorneys wrote in a motion filed last month. “The prosecution against her is barred. The Court should dismiss the indictment.”
Von Spakovsky said the carte blanche immunity argument would give Dugan a pass for any illegal activity if it’s done in the courthouse, an absurd idea. He said it would be like Dugan telling a defendant and his attorney that she would drop charges if they give her a $1,000 bribe. Solicitation of bribes by public officials is violation of federal law, no matter where the crime is committed. The same goes for concealing a person from arrest, one of two charges the leftist judge is charged with.
The law is clear: “Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person,” faces prison and fines upon conviction. That includes judges.
‘Totally Fruitless’ Claims
Dugan also is charged with obstructing federal law enforcement proceedings, a charge that carries with it a five-year prison sentence.
In the motion to dismiss, Dugan’s lawyers cite last year’s U.S. Supreme Court’s ruling in President Donald Trump’s immunity case that found presidents have wide-ranging immunity from prosecution for official actions.
Von Spakovsky has a word for such sovereign immunity arguments for state and local judges: Nutty.
“Her lawyers are making meritless claims,” the law expert said. “For a state official sovereign immunity only applies if a citizen of the state is trying to sue the state under state law. It doesn’t apply to federal law.”
The claim, von Spakovsky said, would effectively negate the prosecutions of local state officials and judges who violated the civil rights of black Americans in the 1960s South.
“Is she trying to say that all those cases were wrongly decided and that all those local officials had free rein to violate federal civl rights law? Because that’s essentially what her lawyers are arguing, which is why the claims that her lawyers are making are totally fruitless,” he said.
‘In the Public Interest’
FBI agents arrested Dugan on April 25 at the courthouse, a week after the judge, according to the criminal complaint, misdirected federal agents from apprehending Flores-Ruiz. The illegal immigrant was set to appear before Dugan for a pretrial conference on three misdemeanor counts of battery. He is accused of striking a man “in the face and body with a closed fist approximately 30 times” during an argument. Flores-Ruiz, according to the local complaint, also struck a woman who attempted to intervene in the domestic incident.
According to the criminal complaint, Dugan was “visibly angry” with a “confrontational, angry demeanor,” in dealing with Immigration and Customs Enforcement officials. She demanded the federal law enforcement agents speak with the court’s chief judge, the complaint states. While the agents were preoccupied, Dugan escorted Flores-Ruiz and his legal counsel out of the courtroom through the “jury door,” which leads to a non-public area of the courthouse, according to the charges.
“According to the affidavit, Judge Dugan’s actions directly resulted in Flores-Ruiz temporarily avoiding federal custody. He was ultimately arrested outside the courthouse, following a brief foot pursuit,” the U.S. Department of Justice stated in a press release.
The Wisconsin Supreme Court relieved Dugan from her judicial duties while the case, scheduled to go to trial late next month, plays out.
“…(W)e conclude, on our own motion, that it is in the public interest that she be temporarily relieved of her official duties,” the liberal-led court concluded in its order.
Deja vu?
Dugan’s lawyers are correct in arguing that “this is no ordinary case,” but they miss the mark in asserting the government’s prosecution of the judge is “virtually unprecedented and entirely constitutional,” legal experts say.
In short, we’ve been down this road before.
Boston Municipal Court Judge Shelley Joseph is accused of doing exactly what Dugan is alleged to have done. Joseph, while serving as a district court judge, was federally charged in 2019 with conspiracy to obstruct justice and obstruction of justice for allegedly helping a twice-deported illegal immigrant suspected of narcotics drug crimes attempt to evade ICE agents. She, too, helped the illegal alien out the back door, according to the criminal complaint.
Like Dugan, the Massachusetts judge was removed from the bench following a grand jury indictment and put on leave with pay. After President Trump left office, the Biden administration gave Joseph a sweetheart deal — the kind of offer you might expect from an administration that smiled on the illegal immigrant invasion of the United States.
“But Joseph’s really lucky break came after Joe Biden was elected in 2020, and the U.S. attorney he appointed dropped the charges against her. Instead, Joseph would be investigated by the Massachusetts Commission on Judicial Conduct,” NPR reported.
Yeah, lucky break.
The commission has scheduled a hearing — a “trial-like proceeding” — for next Monday. Joseph could be removed from the bench.
She has vehemently denied that she meant to assist the illegal immigrant in evading federal authorities, despite some fishy conduct in the incident. According to a court recording transcript, the defense attorney for the illegal immigrant informed Joseph that ICE planned to arrest his client at the courthouse doors. The judge on multiple occasions asked, “ICE is gonna get him?” and “What if we detain him?” NPR reported. The judge then instructed the clerk to stop the recording.
“At that point, the attorney allegedly told Joseph about the plan, and she is alleged to have agreed,” according to the news outlet. “When the recording was restarted, less than a minute later, the defense attorney said, ‘I would ask that he, uh- I believe he has some property downstairs. I’d like to speak with him downstairs with the interpreter if I may.’ Judge Joseph responded, ‘That’s fine, of course.’”
‘Judges Are Not Above the Law’
Joseph, like Dugan, attempted to claim that she was immune from prosecution, insisting the federal charges were unconstitutional. But the U.S. Court of Appeals in Boston wasn’t buying it. The court rejected Joseph’s motion to dismiss the criminal indictment against her.
“We’ve read the Constitution and don’t remember the ‘judge-can-do-whatever-she-wants’ clause,” von Spakovsky and Heritage colleague Charles Stimson wrote at the time.
In a review of the Dugan case, the Wisconsin-based Institute for Reforming Government notes the similarities with Joseph’s legal troubles and asserts the prosecution of the Milwaukee County judge “tests the boundaries of judicial immunity and federal state-relations, raising questions about accountability and sovereignty.”
“What happens next could set a national precedent,” IRG states in the report titled, “Judicial Immunity in Wisconsin Has Limitations Attached To The Role of a Judge.”
“If Judge Dugan wins, judges may gain broader protection from prosecution. If she loses, it could reinforce that judges are not above the law — especially when it comes to interfering with federal enforcement.”