A Wisconsin state judge accused of impeding government agents during an immigration raid is attempting to have federal obstruction charges dismissed, arguing that, just as the president is immune from prosecution for official acts while in office, she enjoys broad judicial immunity.
Milwaukee County Judge Hannah C. Dugan 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 abuse case.
Much of Dugan’s argument for dismissal is based on the United States Supreme Court’s decision last year to grant presidents broad immunity from criminal prosecution.
“At least for presidents, even acts at the ‘outer perimeter of his official responsibility’ are entitled to a presumption of immunity,” according to a 37-page motion to dismiss filed Thursday in the United States District Court for the Eastern District of Wisconsin. “Nothing in Trump suggests that judicial immunity is any less broad than presidential immunity, for purposes here.”
Her attorneys wasted no time in painting a foreboding picture of the circumstances and implications surrounding the judge’s arrest.
“This is an extraordinary prosecution that threatens federalism and judicial independence. Consider what it proposes in the context of American governmental design,” the motion begins. “One morning, plainclothes federal agents wearing badges and baseball caps on a bench outside a state courtroom decided how they wanted a judge to control the courtroom and the people in and around it. The judge faces federal criminal charges for failing to comply with their wishes.”
According to Dugan, the concept of judicial immunity is rooted in the 10th Amendment — the allocation of power retained by the states and denied to the federal government — and can be traced back over 400 years to common law.
Dugan contends that the Trump administration is attempting to overturn such fundamental legal principles through her prosecution, despite the fact that such principles have long served as “bars to prosecution” in cases like this.
“Dismissal here flows from a straightforward application of long-settled law,” states the motion’s argument. “The indictment is an ugly innovation. Its dismissal will not occur.”
The judge then delves into the U.S. Supreme Court’s landmark decision in Trump v. United States, in which the justices controversially declared that a sitting president has “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.”
That decision repeatedly cited and relied on the reasoning in Pierson v. Ray, a 1967 case that reaffirmed judges’ immunity for acts done within their judicial discretion, “even when the judge is accused of acting maliciously and corruptly.”
“If the Pierson holding suggested presidential immunity to criminal liability, it expressly did the same for judicial immunity,” contends Dugan.
The filing contends that Pierson, Trump, and other cases “recognized that common law had not distinguished between absolute judicial immunity from civil and criminal liability related to official acts.”
“Trump did nothing to challenge this deeply entrenched judicial immunity from criminal liability.
Rather, it clarified that the President is entitled to the same immunity from prosecution for official misconduct that judges have long held,” the motion states (citations removed).In short, only conduct clearly outside the scope of a judge’s job is immune, and official acts are not.
Today, an American judge is immune from prosecution for official acts, with the exception of acts that violate an individual’s fundamental constitutional liberties.
Dugan, who is also accused of falsely informing agents that a judicial warrant was required to take Flores-Ruiz into custody, has pleaded not guilty to the charges, which include obstructing or impeding a proceeding before a United States department or agency and concealing an individual to prevent his discovery and arrest. If convicted of both charges, the maximum penalty is six years in prison and a fine of up to $350,000.
Earlier this month, she filed a similar motion, claiming that her immunity from prosecution “is not a defense to the prosecution to be determined later by a jury or court,” but rather “it is an absolute bar to the prosecution at the outset.”
The trial date in this case has been set for July 21.
