Two Iowa jurists have signed on to an amicus brief calling for a federal court to dismiss the indictment against Milwaukee County Circuit Court Judge Hannah Dugan. Federal prosecutors charged the judge with concealing a person from arrest and obstructing an official proceeding after she allegedly helped a defendant in her courtroom avoid immigration law enforcement. She has pleaded not guilty and moved to dismiss the charges.
Former U.S. District Court Judge Mark W. Bennett and former Iowa Supreme Court Chief Justice Marsha Ternus were among the 138 retired judges who signed the brief, filed on May 30 in the U.S. District Court for the Eastern District of Wisconsin. The signatories served on courts in 24 different states or were appointed to the federal bench by Presidents Jimmy Carter, Ronald Reagan, Bill Clinton, and George H.W. Bush. Their brief argued, “The government’s indictment of Judge Dugan represents an extraordinary and direct assault on the independence of the entire judicial system.”
In early May, Judge Bennett and Justice Ternus signed an open letter to U.S. Attorney General Pam Bondi, which condemned the Trump administration’s various attempts to “intimidate and threaten the judiciary.”
The brief offers four arguments for dismissing the indictment.
First, prosecuting this judge “threatens to undermine centuries of precedent on judicial immunity,” a concept “crucial for an effective judiciary.”
There can be no dispute that here, regardless of whether Judge Dugan in fact undertook the conduct the government alleges, she was acting within her official capacity when engaging in activities in and near her courtroom.
The brief cites cases supporting the idea that judges have absolute immunity from prosecution for their official acts, not qualified immunity that might depend on the circumstances.
The second point highlights the “chilling effect” on judges, who may conclude they must “manage their courtroom to become an active party in federal arrests when sought, or risk professional humiliation, financial ruin, and criminal prosecution.”
Not only is that a problem for judges, it could undermine “the due process protections of the Fifth and Fourteenth Amendments of the U.S. Constitution,” which hold that “every litigant is entitled to an independent and impartial judge.”
As former state and federal judges, we can state with confidence that, if this prosecution is permitted to proceed, the practical consequences for the judiciary would be devastating. Should this Court allow the prosecution of Judge Dugan to proceed, judges in every state and federal courthouse across the nation will feel a constant, ever-present threat to refrain from actions that might antagonize federal officials, and it will not just be limited to immigration enforcement.
Under Wisconsin’s and every other state’s judicial code of conduct, judges control what happens in their own courtrooms. Every state already has a judicial disciplinary process to address errors or misconduct.
Third, the amicus brief argues that arresting a judge “threatens public trust in the judicial system.” That in turn “creates the perception that judges are not truly neutral and impartial, which is a cornerstone of the public trust afforded to the judiciary.” It’s not that judges never make mistakes: “The public generally understands that judges may make errors which are corrected through the appeals process. However, an arrest implies criminal wrongdoing.”
Finally, the brief refers to “the anticommandeering doctrine,” which derives from the Tenth Amendment to the U.S. Constitution. The concept is that the federal government cannot compel state officials to execute federal laws.
The conduct charged in the indictment is alleged to have all taken place in, outside, or near a state courtroom, in [a] courthouse operating at the state’s own expense, for the purpose of administering state cases, and to be carried out by a state judicial officer who was, at the time, administering a proceeding arising under state law. […] Simply put, there can be no more “direct affront to state sovereignty” than installing federal officers in state courthouses and allowing them to coerce or threaten state officials into assisting in federal enforcement activities.
Judge Dugan’s prosecution is only one facet of President Donald Trump’s threats to judicial independence. After signing the recent letter to Attorney General Bondi, Judge Bennett noted that Trump’s “relentless personal attacks on federal judges who invalidate his executive orders” undermine long-held democratic values about checks and balances.
Justice Ternus has highlighted the president’s retaliation against certain lawyers and law firms, as well as his calls to impeach judges who ruled against his administration’s position. In remarks she delivered before Judge Dugan’s arrest, Ternus said such actions “send an intimidating message to others in similar positions.”
Appendix: Full text of amicus brief from former state and federal judges in support of a motion to dismiss the indictment of Milwaukee County Circuit Court Judge Hannah Dugan.
Top photos of Judge Mark Bennett and Chief Justice Marsha Ternus were originally published on their websites (see here and here).