OPINION:
Last week, the FBI arrested a Wisconsin state judge as she was walking into the courthouse where she works. The feds had alerted the media, not the judge, to this event, and they arrived and recorded the arrest.
When arresting a nonviolent public official with deep community roots, the standard and preferred practice is to invite the person to surrender with counsel.
Instead, without notice, this judge was stopped on a public street and handcuffed behind her back, a technique reserved for the most dangerous or threatening individuals. Within minutes, the FBI director had posted still photos of this event on his X account.
The feds were unhappy at how a criminal defendant before this judge was permitted to leave her courtroom. By leaving through a nonpublic exit instead of through the doors where the feds were awaiting him, his departure frustrated the feds, who apparently expected the judge to accommodate them. The technical charge against the judge is obstructing the administration of justice. The actual charge was failing to aid the feds.
Here is the backstory.
The feds have grown accustomed to commandeering the states to assist when needed, and many states routinely comply. They do so either out of a sense of common purpose or because the feds have bailed them out financially.
Two Supreme Court cases, with largely compatible results, tested this relationship. The first, South Dakota v. Dole (1987), addressed the strings attached to federal funds granted to the states. Congress wanted to lower highway speed limits and decided to bribe the states to achieve that goal. It offered huge amounts of cash for paving state and federal highways in return for reducing speed limits to 55 miles per hour.
When South Dakota told the feds that it would take the cash but not the lower speed limits, the Supreme Court ruled that so long as the strings attached to the financial grants are rationally related to the purpose of the grants, the strings are lawful and enforceable. So, South Dakota took the cash and reluctantly lowered its speed limits.
Ten years later, Congress enacted gun regulations and ordered the states to enforce them. In Printz v. United States (1997), Justice Antonin Scalia wrote for the Supreme Court that the states are still sovereign and can reject federal cash and strings and the feds cannot commandeer their officials. The federal government, the court held, has limited constitutional powers, and the power to commandeer state officials is not among them.
Both of these rulings unambiguously recognized the sovereignty of the states. The South Dakota case led to vastly more congressional bribery. The states today do not refuse federal cash. The Printz case led to federal frustration. That frustration boiled over outside a Wisconsin courthouse last week when the feds did what was surely unthinkable to Scalia: arresting a sitting state judge who refused to be commandeered by the feds.
Judge Hannah Dugan was presiding over an arraignment for a nonincarcerated defendant when her court officers told her that the feds were in the courthouse hallway seeking to arrest the defendant in her courtroom and were growing impatient. When she asked to see their arrest warrant, they had none. Instead of an arrest warrant issued by a judge, as the Fourth Amendment requires, they presented an administrative warrant in which one federal agent authorizes another to arrest a person in a public place.
Judge Dugan shares your author’s view that the Fourth Amendment means what it says, and thus, administrative warrants are blatantly unconstitutional, and she would not recognize them. The purpose of the amendment is to ensure that only judges order arrests. When her business with the defendant in her courtroom was completed, she asked him to leave through the exit used by jurors, which was inaccessible to the feds.
She did not inform the defendant that the feds were looking for him, but he sensed something was up. He ran when he left the courthouse and was met by feds waiting for him. A brief chase ensued, but the six feds captured the one defendant.
A week later, Judge Dugan was arrested for obstruction of justice.
Her arrest implicates the Supreme Court cases above and the recent Supreme Court decision on immunity. Wisconsin never agreed to have its officials assist the feds in immigration enforcement in return for federal cash, and the feds cannot commandeer state officials, judges or police to assist them. Though that case addresses presidential immunity, it is instructive on the nature of government in America. It teaches that government officials cannot be criminally prosecuted for exercising their core functions.
So, if the secretary of defense directs Air Force jets to attack a structure in a foreign country, he mistakenly identifies it as military. Still, as a civilian, he cannot be prosecuted for homicide. If FBI agents raid and destroy the wrong house, they cannot be arrested for breaking and entering. If a judge tells a defendant to leave her courtroom through door A and not door B because behind B are folks with a phony warrant, she cannot be prosecuted.
This is bigger than Judge Dugan. We are witnessing an unprecedented assault on the separation of powers and the concept of federalism by a White House impatient with the constitutional process and largely indifferent to the role and function of the judiciary. The judiciary’s role is anti-democratic to protect lives, liberties and property from the other two branches.
If the feds succeed in intimidating judges and bending them to the president’s will, our liberties will be unprotected.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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