In Defense of Judge Hannah Dugan

Judge Dugan has pled not guilty, and her team of lawyers has submitted a motion to dismiss the charges against her.

By now, you’re aware that the Trump regime made a big show of arresting Milwaukee Judge Hannah Dugan in their ongoing, anti-judiciary propaganda campaign. They allege she aided an immigrant in avoiding ICE agents by allowing Eduardo Florez-Ruiz to exit through the jury room instead of the main door. They arrested and arraigned her on a criminal complaint, and obtained a grand jury indictment after the fact.

First, it’s important to note that the threshold to obtain an indictment from a grand jury is probable cause - a low standard. But the threshold to prosecute, and the threshold to convict are beyond a reasonable doubt. With that in mind, Judge Dugan has secured an outstanding defense team, including Paul Clement and Steven Biskupic.

Clement served as the U.S. solicitor general from 2005 to 2009 and has argued more than 100 cases before the Supreme Court. He was on Trump’s short list of Supreme Court picks, and was also named Amicus Curiae in the Eric Adams case. Steven Biskupic is a former U.S. attorney and a George W. Bush appointee.

This week, Judge Dugan’s legal team filed a motion to dismiss the charges against her. Let’s take a look at that motion. As expected, they go big:

Hon. Hannah C. Dugan moves for an order dismissing the indictment. This is no ordinary criminal case, and Dugan is no ordinary criminal defendant. Dugan is a Milwaukee County Circuit Court judge.

She was arrested and indicted for actions allegedly taken in and in the immediate vicinity of her courtroom, involving a person appearing before her as a party. The government’s prosecution of Judge Dugan is virtually unprecedented and entirely unconstitutional—it violates the Tenth Amendment and fundamental principles of federalism and comity reflected in that amendment and in the very structure of the United States Constitution.

And right there on the first page, they draw blood:

The problems with this prosecution are legion, but most immediately, the government cannot prosecute Judge Dugan because she is entitled to judicial immunity for her official acts. Immunity is not a defense to the prosecution to be determined later by a jury or court; it is an absolute bar to the prosecution at the outset. See Trump v. United States, 603 U.S. 593, 630 (2024).

Quoting Trump’s own immunity bid as an argument against the administration is just the kind of chef’s kiss bench-slap you love to see. But what do they mean when they talk about judicial immunity, the Tenth Amendment, the fundamental principles of federalism, and the very structure of the United States Constitution as they relate to this case?

1. JUDICIAL IMMUNITY

First, Judges are empowered to maintain control over their courtrooms specifically and the courthouse generally. Stevens v. Osuna, (11th Cir. 2017). “[T]he issuance of an order removing persons from the courthouse in the interest of maintaining such control is an ordinary function performed by judges[.]”

Second, her motives are irrelevant: Judge Dugan’s subjective motivations are irrelevant to immunity. “Judges are entitled to absolute immunity for their judicial acts, without regard to the motive with which those acts are allegedly performed.” Trump v. United States

2. THE TENTH AMENDMENT

Immunities aside, the indictment runs afoul of the Tenth Amendment and constitutional principles of federalism. Federal power is limited to specific, enumerated areas in the Constitution. All other powers “are reserved to the States, respectively, or to the people.” U.S. CONST. AMEND. X. That includes the general police power: the states retain it; the federal government does not have it. Unsurprisingly, then, the American judicial system empirically is almost entirely the realm of the states.

In other words, she’s a state judge and the feds have no power here.

The government’s prosecution here reaches directly into a state courthouse, disrupting active proceedings, and interferes with the official duties of an elected judge. Judge Dugan was elected by the people of Milwaukee County to adjudicate their disputes and administer the laws of Wisconsin. The federal government violated Wisconsin’s sovereignty on April 18 when it disrupted Judge Dugan’s courtroom, and it is violating Wisconsin’s sovereignty now with this prosecution. The Court should end the violation of Wisconsin’s sovereignty and dismiss the indictment.

Seems pretty straightforward. We’ll see what the presiding judge decides.

Who is the presiding judge? The case has been assigned to U.S. District Judge Lynn Adelman of the Eastern District of Wisconsin; a Bill Clinton appointee. According to the Washington Post, “Adelman, a former Democratic state senator, drew attention in 2020 when he wrote a law review article accusing the Supreme Court of “undermining American democracy.”

Former Capitol Police Officer Harry Dunn and I will be covering this case on the Cleanup on Aisle 45 podcast, which is free to listen to and subscribe.

~AG

Milwaukee Journal Sentinel