Attorneys Debate Judicial Immunity, Federal Powers in Judge Dugan Case

Milwaukee Federal Courthouse. Photo by Mariiana Tzotcheva

With motions flying, U.S. District Judge Lynn Adelman has scheduled a hearing in the federal criminal case against Circuit Court Judge Hannah Dugan.

Dugan faces federal criminal charges for allegedly obstructing an Immigration and Customs Enforcement (ICE) arrest at the Milwaukee County Courthouse. Her legal team is seeking a dismissal of the charges, arguing that the federal government is exceeding its legal authority and that judicial immunity should protect her from prosecution. Federal prosecutors, on the other hand, argue dismissal of the charges against her would “give state court judges carte blanche to interfere with valid law enforcement actions by federal agents in public hallways of a courthouse, and perhaps even beyond.”

From the beginning the case has been tangled in the political conflicts roiling the country since President Donald Trump‘s second administration took office in January. Issues of immigration, deportation, due process and federal authority are now at the center of debates over whether or not the current administration is eroding democracy and walking the nation down a path to autocracy.

When ICE agents arrived at the Milwaukee County Courthouse on April 18 to arrest Eduardo Flores-Ruiz, they had already drawn strong rebuke from local elected officials and civic leaders for arresting immigrants at the courthouse. The month prior, the Trump administration had deported undocumented immigrants, without a court hearing, to a foreign mega-prison in El Salvador, a nation ruled by the autocratic strongman Nayib Bukele.

Dugan was arrested at the courthouse on April 25. FBI Director Kash Patel announced the arrest on x.com that morning, and later in the day U.S. Attorney General Pam Bondii said the arrest was “sending a very strong message” to judges who think they are “above the law.” Dugan faces one count of obstruction and one count of concealing an individual to prevent their arrest. The federal government alleges Dugan sent federal agents away from her courtroom so that she could prevent the arrest of Flores-Ruiz, who was there facing misdemeanor battery charges.

That day, federal agents positioned themselves outside of Dugan’s courtroom. Federal prosecutors allege the judge confronted them and sent the agents to the chief judge’s office, then directed Flores-Ruiz and his attorney to use a side door out of her courtroom, and told him he could appear virtually for his next hearing. The side door leads to the same public hallway as the main door. Agents arrested Flores-Ruiz outside the courthouse.

Dugan’s attorneys are arguing that her actions fall within the scope of official judicial acts and that judicial immunity protects her from criminal prosecution for these acts. They say the federal government’s prosecution violates the separation of powers set up by the U.S. Constitution and the system of federalism that delegates certain authorities to the federal government and the rest to the state.

“Dismissal here flows from a straightforward application of long-settled law. The indictment itself is an ugly innovation. Its dismissal will not be,” her attorneys Dean Strang, Steven Biskupic, Jason Luczak and Nicole M. Masnica wrote in a memo arguing for dismissal in May.

Federal prosecutors, led by Acting U.S. Attorney Richard G. Frohling, responded Monday, arguing Dugan seeks an “unprecedented dismissal of her case.” Her actions that day were not official, were criminal and the federal government was well within its authority to arrest Flores-Ruiz at the courthouse that day, they argue.

“Dugan asks for this Court to develop a novel doctrine of judicial immunity from criminal prosecution… all without reasonable basis—directly or indirectly—in the Constitution, statutes, or case law,” according to the filing signed by Frohling and U.S. Attornies Keith Alexander, Kelly B. Watzka, Timothy W. Funnell and Jonathan H. Koenig, 

Her attorneys have pulled from hundreds of years of legal history and recent U.S. Supreme Court precedent to make their argument. Her legal team is arguing that the U.S. Supreme Court’s recent decision in Trump v. United States backs up their claim that Dugan is immune from prosecution. In that case the court ruled the president has “absolute immunity” from prosecution for actions within his “exclusive sphere of constitutional authority.” Her attorneys say the ruling “clarified” that the president enjoys the same immunity from prosecution as judges.

“Trump is clearly distinguishable,” the prosecution argued, quoting from the ruling that presidential immunity stems from the office’s “unique position in the constitutional scheme” and the need for the government to function without the president constantly assessing whether decisions could lead to later criminal inquiries.

Dugan’s attorneys argue she is covered by immunity because her actions that day constitute official acts of her office, that she has broad authority to control what takes place in her court room and that her interaction with federal agents was an attempt to ascertain what authority they had to “snatch” a defendant from the courthouse.

“The indictment describes actions concerning how and when Judge Dugan handled a defendant’s appearance in court, within the parameters of her morning docket and calendar… what flexibility she would allow him for future appearances… which courtroom door a defendant would use to emerge into the same public hallway at the same time he would have in any event: through the doors at the end of the courtroom’s aisle, or instead at most 15 feet away through the door just beside one of the courtroom’s interior walls,” the attorneys wrote.

The prosecution, however, contends that Dugan’s actions that day went far beyond her officials duties, and that a dismissal would “expansively” redefine judicial acts. “Dugan’s desired ruling would, in essence, say that judges are “above the law,” and uniquely entitled to interfere with federal law enforcement,” prosecutors argue.

The judge was obstructing a legal federal immigration action, according to the prosecution. Federal agents had no plans to interfere with the scheduled judicial proceedings of Dugan’s court room and were waiting for them to conclude before arresting Flores-Ruiz.

The distinction between official and unofficial acts is important to Dugan’s argument for dismissal. Previous court rulings and Supreme Court precedent established immunity from prosecution for official acts, they argue. The only circumstance under which the immunity can be repealed, is when the official act amounts to a criminal violation of a person’s constitutional rights.

The prosecution was dismissive of this line of argument, arguing that her attorneys were conflating legal precedent for civil immunity with precedent for criminal immunity and that their reliance on the case law was “misplaced.”

Dugan’s legal team has argued that her prosecution presents a threat to the separation of powers, and that the Tenth Amendment prevents the federal government from taking actions affecting the administration of Dugan’s state court room. That amendment to the U.S. Constitution states that any powers not delegated to the federal government are reserved for the states.

The circuit court system falls under the general police powers left to the states, her attorneys argue. “Nothing in the Constitution allows the federal government to superintend the administration and case-by-case, daily functioning of state courts as this indictment proposes,” they wrote.

Prosecutors reject that the federal government was trying to control a state court room and argue that the Tenth Amendment in no way shields the judge from federal criminal prosecution. “The immigration enforcement that Dugan attempted to obstruct was lawful—in a public space— and lay wholly within the jurisdiction of the federal government,” prosecutors argue.

Read the motion to dismiss.

Read the memo in support of the motion to dismiss.

Read the federal government’s response to Dugan’s motion to dismiss.