Arresting Judges

I think Milwaukee Judge Hannah Dugan was probably wrong to help a defendant flee ICE. But the Trump Administration’s reaction was much worse.

The story as reported so far is that Dugan was presiding at a hearing involving a man, apparently in the country illegally and charged with domestic violence, when she learned that ICE agents were waiting in the corridor to take him into custody.

First, she did the responsible thing. She went out to talk to the agents and she asked them to go see the chief judge to find out what the Milwaukee courthouse policy was on this kind of arrest. After all, the guy was in her court on an unrelated charge. If the FBI were there to pick up a citizen on unrelated drug charges, what would have been the policy? It seems to me it should be the same in both sets of circumstances.

Then she did an irresponsible thing. She led the defendant and his lawyer out a back door for the purpose of evading the ICE agents. And that was to no effect as the agents chased him down and arrested him on the street.

So, Dugan exercised poor judgement, but she did that in her own courtroom where judges typically have a lot of leeway. Was it really a violation of Federal law? We’ll find out, I guess, but she certainly didn’t deserve to be arrested in the parking lot as she came to work a few days later. She wasn’t a flight risk. The way this sort of white collar offense would have been handled under normal circumstances is that she’d be ordered to show up at a court appearance. And, in fact, the most appropriate course would have been to file a complaint with the state office that regulates the conduct of judges. The arrest was just grandstanding by Trump and his henchmen.

This is political theater designed to intimidate judges and to make the case that Trump is above the law — that he is literally more powerful than the courts. While Dugan may have exercised poor judgment in how she handled this situation, Trump is flouting the courts as he sends people to a notorious foreign prison without any due process. He’s hanging his hat, dubiously, on a 1798 law written to address war time scenarios and last used during WW II. And in that case it was used, even more shamefully, to imprison Asian Americans simply because they looked different.

As a rule, I’m no fan of sanctuary cities because a policy of not cooperating in the enforcement of a law breeds disrespect for the law overall. And what do you say to northern Wisconsin sheriffs who have declared their counties “Second Amendment Sanctuaries,” and refuse to enforce gun control laws — accept maybe, ‘how paranoid can you guys get since there are virtually no meaningful gun control laws to enforce?’

On the other hand, police departments and local prosecutors make decisions all the time about what laws to enforce and what to let go. Nobody enforces speed limits to the letter of the law and nobody prosecutes every marijuana possession. But while I suppose it’s somewhat the same thing to say that local law enforcement won’t actively do ICE’s job for them, it’s quite another thing to actively interfere with it, which you could argue Dugan did in this case.

Nonetheless, in how his people (and make no mistake, the FBI now qualifies as “his people”) handled it, my bet is that Trump is only hurting his own cause here. I don’t think Americans like the image of a judge being put under arrest, even if they might agree that she overstepped the process in her own courtroom.

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