The liberal Wisconsin judge accused of helping an accused violent illegal immigrant elude federal authorities argues that her case should be dismissed because she has absolute immunity from criminal prosecution for official actions taken as a judge.
A federal magistrate judge called BS.
U.S. Magistrate Nancy Joseph found Milwaukee County Judge Hannah Dugan’s arguments “unconvincing” in recommending Dugan’s motion to dismiss the charges against her be denied. In short, Joseph believes the criminal trial — already delayed — must go on.
“It is well-established and undisputed that judges have absolute immunity from civil lawsuits for monetary damages when engaging in judicial acts. This, however, is not a civil case,” Joseph wrote in her thorough, 37-page decision. “Accordingly, I recommend that Dugan’s motion to dismiss the indictment on judicial immunity grounds be denied.”
The magistrate also rejected the defendant’s argument that the 10th Amendment’s states rights protections shield the activist judge from prosecution.
“We are disappointed in the magistrate judge’s non-binding recommendation, and we will appeal it,” one of Dugan’s attorneys, former federal prosecutor Steven Biskupic, said in a statement to the Associated Press. “This is only one step in what we expect will be a long journey to preserve the independence and integrity of our courts.”
Joseph’s recommendation blasts a bunker-buster-sized hole in the stretched legal arguments of Dugan’s legal dream team, which includes a former solicitor general for President George W. Bush. But the ultimate decision to dismiss remains in the hands of a far-left Milwaukee-based federal judge with a history of political opining from the bench.
Acts of ‘Corruption’
Dugan has been charged with felony obstruction and misdemeanor concealing an individual to prevent arrest. She is accused of aiding previously deported illegal immigrant Eduardo Flores-Ruiz’s brief escape from federal law enforcement officials while he was appearing in front of Dugan on battery charges. Dugan faces up to six years in prison and a $350,000 fine if found guilty.
As The Federalist has reported, FBI agents arrested Dugan on April 25 at the courthouse, a week after the judge, according to the criminal complaint, misdirected federal agents, delaying them from apprehending Flores-Ruiz. The illegal immigrant was set to appear before Dugan for a pretrial conference on three misdemeanor counts of domestic battery.
Flores-Ruiz, who had previously been deported, recently accepted a plea deal in which he will be deported again after serving out a federal prison term for breaking immigration law, WISN in Milwaukee reported.
“Visibly angry” with a “confrontational, angry demeanor,” according to the criminal complaint, Dugan told Immigration & Custom Enforcement agents to meet with the court’s chief judge before they could take the illegal alien into custody. Then, according to federal prosecutors, the judge 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.
“… 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 complaint lays out a series of “corrupt” acts allegedly committed by the judge that led to the criminal charges.
‘Weak Evidence’
Dugan’s attorneys quickly filed motions to dismiss the charges, claiming the judge is immune from criminal prosecution for judicial acts and that her prosecution violates the limits of federal power under the Tenth Amendment.
The magistrate offered a legal history lesson on why the plaintiff’s claims don’t hold water.
Joseph noted the concept of judicial immunity goes back centuries under English common law, and that “the doctrine that a judge enjoys absolute immunity from civil lawsuits for monetary damages when engaging in judicial acts is solidly established.” But that immunity, at least in the U.S. court system, does not extend to criminal charges.
“Dugan does not cite, and I have not found, cases where the Supreme Court invoked [precedent]for the proposition that judicial immunity bars the criminal prosecution of judges for judicial acts,” the magistrate wrote. In fact, Dugan’s attorneys, including former U.S. Solicitor General Paul Clement, cite cases involving civil charges.
“But judicial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are immune from [civil rights law] damages actions, but they are subject to criminal prosecutions as are other citizens,” Joseph asserts. She described Dugan’s cited cases as “weak evidence of a common law judicial immunity from criminal prosecution for judicial acts.”
‘A Leap Too Far’
The magistrate pointed to a similar case in which then-Massachusetts District Court Judge Shelley Richmond Joseph is accused of allowing an illegal immigrant in her court to elude ICE custody. In that case, as in the Dugan case, the indictment alleged the Massachusetts judge acted “corruptly” in colluding with the illegal immigrant’s attorney. Corrupt acts committed by judges in the course of judicial business are not immune from prosecution, case law shows.
The incident with Judge Shelley Joseph occurred in 2018. Four years later, the Biden Department of Justice dropped the federal obstruction charges after she agreed to an investigation on judicial misconduct charges. The Commission on Judicial Conduct found that Joseph “engaged in willful judicial misconduct that brought the judicial office into disrepute, as well as conduct prejudicial to the administration of justice and unbecoming a judicial officer.”
In the motion to dismiss, Dugan’s lawyers also cite last year’s U.S. Supreme Court’s ruling in President Donald Trump’s immunity case that found presidents have absolute immunity from prosecution for actions within their “exclusive sphere of constitutional authority.”
The magistrate said the plaintiff’s argument “makes a leap too far.” Trump v. United States “says nothing about criminal immunity for judicial acts,” Joseph wrote in her decision.
Legal experts say the criminal immunity defense is a tough argument to make.
Howard Schweber, University of Wisconsin political science professor emeritus, agreed with the magistrate that judicial immunity only applies to civil lawsuits.
“What is very strange about Judge Dugan’s motion to dismiss is she asserts an absolute immunity from criminal prosecution, even though all of the cases that she cites are about civil lawsuits.” Schweber told Fox6 in Milwaukee.
‘Questions for a Jury’
U.S. District Judge Lynn Adelman will make the final call on whether the trial will go on. Adelman has a history of granting government officials sweeping immunity — at least when the cases involve civil rights violations against conservatives. In 2016, Adelman tossed out a lawsuit against the heavy-handed prosecutors of Wisconsin’s notorious John Doe investigations, unconstitutional, politically-driven probes targeting allies of then-Republican Gov. Scott Walker.
Adelman, a longtime Wisconsin Democrat politician before being sent off to the federal bench, is a leading contender for farthest-left jurist in the federal court system. In 2020, the Judicial Council of the 7th U.S. Circuit Court of Appeals publicly rebuked Adelman for his 35-page screed, “The Roberts Court’s Assault on Democracy,” in which he verbally abused U.S. Supreme Court Chief Justice John Roberts, President Donald Trump, and the Republican Party.
“Adelman, a judge for the Eastern District of Wisconsin since 1997, targeted Republicans for special criticism and went so far as to liken them to pro-slavery ‘fire-eaters’ of the pre-Civil War South,” the Heritage Foundation’s Zack Smith and GianCarlo Canaparo noted at the time.
But if Adelman follows the recommendation of the federal magistrate, prosecutors will have the chance to make their case before a jury. That’s where the case belongs, Joseph asserts.
“Whether Dugan violated these statutes as the government accuses, or whether she was merely performing her judicial duties as Dugan asserts, these are questions for a jury that cannot be resolved on a motion to dismiss,” the magistrate wrote.
Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.
