Arresting Judges and Dismantling Democracy
Milwaukee Judge Hannah Dugan was arrested by the FBI for allegedly helping a man evade immigration enforcement. If you don’t read the details of the criminal complaint, you might naturally think – “If you obstruct a criminal investigation, why shouldn’t you be arrested and charged?”
I would generally agree, but in light of the Trump administration’s removal of due process protections for people like Kilmar Abrego Garcia and the continuous “disappearing” of people from the street, I approached this story with extra skepticism. I immediately presumed that this arrest of a state court judge by Trump’s FBI was about more than obstruction of justice.
Reading the criminal complaint validated that presumption. All the FBI has on Judge Dugan is the fact witnesses saw her escort the man in question (who was a defendant in a case in her courtroom) through a “jury door” instead of the public courtroom exit. This jury door – it’s important to note – ultimately led to a public hallway, although it was probably less monitored. The complaint also highlights that the judge made some “forceful motions” and “stern” comments.
Seriously. That’s it.
I was expecting quotes like, “ICE agents are outside. You must exit through the jury door to escape!” But there’s nothing to that effect in the complaint.
In criminal law, prosecutors must typically prove mens rea, or the criminal intent to commit a crime. While the FBI here thought they were justified to arrest a judge for directing a man through a specific door, they will likely need more to prove she was trying to obstruct justice or conceal this man from ICE agents. Instructing him to exit through one door and not another, especially when both doors ultimately lead to public places, is a very weak foundation for a criminal case that must be proven beyond a reasonable doubt.
But let’s assume that the judge was trying to give the man a head start against federal agents. Or lead him to a less-monitored exit for an easier escape. Let’s assume she was helping him get away. Is this fact pattern really an arrestable offense?
She showed him a different door to walk through, not a place to hide for the evening to evade detection. She didn’t supply a getaway car. She didn’t instruct the man to hide somewhere else in the courthouse until the ICE agents left.
She allegedly told him to go through a jury door instead of the main door.
The fact a criminal case is now being brought against her for her door instructions reveals that the case is about far more than simple obstruction. She could have been reprimanded or referred for disciplinary action. None of those lesser actions were taken, however, because this criminal action is designed to send a message.
Comply with Trump’s federal government or else. Don’t even try the smallest thing to impede his agenda that regularly runs afoul of the U.S. Constitution (see the Kilmar Abrego Garcia case where the Trump administration defied a Supreme Court order).
These are the same tactics that have been applied against universities and law firms. They are designed to instill fear in the hearts and minds of people who work in the institutions that help American democracy function.
The Trump administration wants to control these people and dismantle their democratic institutions in service of their goals. One account on X/Twitter was right to remind everyone of this quote:
Arresting a judge should be a very high bar. They are an officer of the court, and therefore you must be very sure that what they did was highly illegal on its face. Otherwise, the action doesn’t look legal. It looks political. It looks like the federal government is trying to compel judges to fall in line with their agenda instead of the law itself, which is reminiscent of authoritarian regimes.
Trump’s defenders argue that Trump faced unprecedented lawfare during the Biden years. They martyred him and painted him as the most unfairly treated victim in American history.
The problem with that argument is that many of the cases against Trump were highly problematic on their face. I never liked that the Stormy Daniels hush money case went first because I thought it was the weakest and most politically charged, but an independent jury still decided unanimously that Trump was guilty. Other juries found him liable as a sexual abuser in civil court. They also found his company at fault for fraud.
The cases that never reached a conclusion like those related to January 6th and the infamous Georgia phone call were filled with evidence that highly suggested Trump’s culpability.
I’m willing to bet that many of the people who defend Trump against the alleged “lawfare” from these cases have never read the actual indictments. They haven’t thoughtfully considered the reams of evidence presented in them.
Those cases are sure stronger than Trump telling someone to go through one door and not another.
There’s also a big difference between targeting the actions of one man (Trump) and attempting to dismantle democratic institutions. Senator Elizabeth Warren summed it up well in this post:
I would also add to Senator Warren’s post the efforts to control universities and law firms. These actions have effectively silenced the entire business community too. It’s almost impossible, for example, to find a CEO or C-Suite executive who will speak critically of tariffs in public despite it also being impossible to find any of them speaking favorably in public.
They fear retribution. Boards of Directors have likely instructed all of their executives to stay quiet. Avoid reprisals and the wrath of Trump at all costs.
Trump wants judges across the country to feel the same way. He wants them to fear what might happen should they run afoul of his administration.
So this latest arrest of a Wisconsin judge is not about only this judge. It’s about dismantling an entire judicial and democratic system. It’s about one man trying to obtain as much power as possible by weakening the institutions that are designed to check his power.
This current moment makes the civics reminder that Pete Buttigieg so articulately provided on his recent MAGA bro podcast appearance so prescient. He reminded them and all of us that America was founded on the basic idea that no one person in America should have too much power. I reflected on this idea further in this short video:
It’s worth reflecting on further regardless of your political ideology. How much power are you willing to give to Donald Trump? How much unchecked authority are you willing to give to his executive branch?
Because if they can arrest judges now for opening certain doors and not others, imagine what they can do next.
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