Prosecution of Judge Hannah Dugan undermines centuries of legal precedent
Dugan is accused of knowingly concealing a person from arrest and obstructing an official proceeding. She supposedly did so through her instructions to a defendant and others in her courtroom as to how to exit her courtroom into the public hallway where ICE agents were waiting to arrest the defendant. Dugan's alleged conduct falls squarely within the bounds of a judge's official duties to control her courtroom and so cannot be a valid basis for criminal prosecution.
The integrity of our justice system fundamentally hinges on the independence of its judges. That is why, historically, the judiciary has commanded a higher level of public trust than the executive and legislative branches: judges are seen as impartial arbiters of the law. This profound responsibility is in turn safeguarded by judicial immunity, a foundational principle with deep historical roots in English common law that is firmly embedded in American jurisprudence.
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This same immunity for government officials that applies to the executive and legislative branches applies with equal force to judges. As the Supreme Court has explained, this enduring doctrine empowers judges to make decisions 'without apprehension of personal consequences,' thereby preserving the effectiveness and impartiality of the judiciary – the trusted keepers of the rule of law.
The arrest of Dugan in violation of these principles casts a chilling shadow over judicial independence nationwide. It has compelled us, alongside a coalition of almost 140 other former state and federal judges, to file a 'friend of the court' brief supporting Dugan's motion to dismiss the federal prosecution. We felt compelled to act because the prosecution is not just about her, and is not just contrary to law; it poses a grave danger to the American justice system.
As we explain in the brief, judicial immunity finds its parallels in the protections afforded to the executive and legislative branches: officials cannot be prosecuted for actions taken in their official capacity. This official immunity ensures that each co-equal branch operates free from personal reprisal.
Crucially, in the case of Dugan, these official immunities are an absolute bar to the prosecution at the outset, not merely a defense to be litigated later. Filing the charges itself violates the immunity. Because the charges are based on actions taken in and around her courtroom and within her judicial role, they must be dismissed immediately. If judges are alleged to have made errors while acting in their official capacity, these are properly addressed through the appellate process or disciplinary proceedings, not the executive branch bringing criminal charges.
Perhaps even more concerning, the Trump Administration alleges that Dugan knowingly concealed a defendant in her courtroom from arrest and obstructed his arrest by directing the defendant out of her courtroom through the jury's private exit and into the public hallway where ICE officials were waiting to arrest the individual, rather than force the defendant to exit the front door of her courtroom into the public hallway. If convicted of these federal felony charges, Dugan could be imprisoned for up to six years. She did not even arguably conceal the individual from arrest or obstruct his arrest.
Beyond judicial independence, this prosecution gravely threatens public trust in the judicial system and in the public's ability to access courthouses without fear. If citizens believe that judges can be prosecuted for political reasons or are fearful that judges will be forced to become law enforcement agents themselves, it fundamentally undermines faith in the rule of law and the importance that judges are seen as neutral arbiters. Such a perception deters individuals from seeking justice, fostering the belief that judges are corrupt, or alternatively, that judges who act in a neutral manner may be punished.
This could lead to widespread cynicism and a collective loss of faith in the justice system. The prosecution of Dugan is not merely a legal dispute; it represents a profound challenge to the separation of powers and the constitutional order of the United States. Allowing this prosecution to proceed would set a dangerous precedent and irrevocably erode the bedrock principle of judicial neutrality upon which our justice system stands. We and our over 130 other colleagues urge that the court dismiss this extraordinary indictment to safeguard the integrity and effectiveness of the entire legal system going forward.
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Dugan's conduct to preserve and protect the dignity, solemnity, and decorum of her courtroom from the spectacle of the defendant's arrest by immigration officials falls squarely within the bounds of Dugan's official duties to control her courtroom and so cannot be a valid basis for criminal prosecution. Her arrest and prosecution are nothing but the next attempt by the current administration to threaten and intimidate the judiciary because the courts are ruling against the president and his administration daily.
U.S. Attorney General Pam Bondi admitted as much when she immediately took to national television, justifying Judge Dugan's arrest on the grounds that judges across America like Dugan are 'deranged' and believe they are above the law. Never has such a corrupt statement been uttered about the judiciary in the almost 250 years since America's founding.
J. Michael Luttig served as a U.S. Court of Appeals Judge from 1991 to 2006. Nancy Gertner served as a federal judge in the District of Massachusetts from 1994 to 2011 and is a senior lecturer in law at Harvard Law School.
This article originally appeared on Milwaukee Journal Sentinel: Here's why Dugan's case should be tossed by federal court | Opinion
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