Over 130 former state and federal judges have called for the dismissal of criminal charges against Milwaukee County Judge Hannah Dugan, who is accused of impeding government agents during an immigration raid.
In an amicus brief filed Friday, the bipartisan group of 138 judges — members of the Democracy Defenders Fund — condemned Dugan’s arrest and prosecution as “an extraordinary and direct assault on the independence of the entire judicial system,” echoing statements made by Dugan in a new motion to dismiss her case filed last week.
“This case directly threatens the ability of all judges to do their jobs without fear of retaliatory prosecution,” according to the brief allegations. “As judges with an obligation to preserve the integrity of the judiciary, we believe our perspective on the historical and legal underpinnings of judicial immunity will materially assist the court in navigating the significant constitutional questions presented by this case.”
Dugan, 65, was indicted last month for allegedly assisting an undocumented immigrant in evading federal officers shortly after he appeared in her courtroom in connection with a domestic violence case. She filed a motion Thursday to have the federal obstruction charges against her dismissed, arguing that, just as the president is immune from prosecution for official acts while in office, she enjoys broad judicial immunity.
“In practice, the Department of Justice is effectively requiring state court judges, in running their courtrooms and otherwise discharging their judicial responsibilities, to prioritize the interests of federal law enforcement above all else or risk federal prosecution,” according to the amicus brief. “In other words, the federal government seeks to use criminal statutes — here, obstruction and concealment — as a means of compelling state court officials to prioritize the interest of federal officers, whenever they appear, over the parties, witnesses, and victims in the case and above the requirements of the state law to be applied.”
Dugan’s argument for dismissal is largely based on the United States Supreme Court’s decision last year to grant presidents broad immunity from criminal prosecution.
“This is an extraordinary prosecution that poses a threat to federalism and judicial independence,” according to Dugan’s attorneys. “In practical terms of American governmental design, consider starkly what it proposes.”
According to Friday’s amicus brief, the judges and Defenders Democracy Fund are not parties in the case, but rather filed a “friend of the court” brief to offer their “perspective on the historical and legal principles of judicial immunity, judicial independence and impartiality, and Tenth Amendment considerations in hopes of materially assisting the Court in navigating the significant constitutional questions presented by this case,” according to the filing.
The group was co-founded by former Obama “ethics czar” and diplomat Norm Eisen, and it is a vocal critic of President Trump.
“Permitting the prosecution of a state circuit court judge for conduct falling squarely within her rightful exercise of judicial discretion establishes a dangerous precedent that will chill judicial decision-making at every level,” the attorney’s brief states.
“The very act of defending against criminal charges, regardless of the ultimate outcome, would inherently distract the judge from her official duties, consume her resources, and subject her to the very pressures that undermine judicial independence,” according to the report. “Such a result would render the absolute nature of judicial immunity meaningless, transforming it from a fundamental right not to be sued into a mere defense.”
On Friday, the judges condemned Dugan’s prosecution as “extraordinary” and one that “casts an intimidating shadow over the exercise of judicial independence and threatens to chill judicial officials in Wisconsin and all other states who do not give way to federal immigration demands or arrest warrants in or near their courtrooms.”
Prosecutors have until June 9 to respond to Dugan’s motion for dismissal.
