Friday Round Up! 4/25/25

So I guess we're at the "arresting judges" stage of the authoritarian takeover.

I’m currently in the U.K. attending the Cambridge Disinformation Summit, and was looking forward to posting about some of the interesting disinformation research that was presented that dovetails with the the material covered in my Substack course.

That was my plan, at least, until my phone started blowing up from reporters asking me to comment on the arrest by the FBI of a judge in Milwaukee. Having not read the news yet, I assumed it was a public corruption case where some judge got busted for bribery, and was lamenting that, while it was likely justified, this kind of crime would further erode the public’s faith in the judiciary at a time when it is needed most.

Then I read the actual complaint.

Folks, this is truly one of the dumbest things I’ve read in a while. (You can take a gander here.) First, though, let’s look at what the Justice Department claims the case is about, in the words of the Director of the FBI, Kash Patel:

I don’t know about you, but after reading this I imagined the judge telling ICE agents, “He’s over there!” and pointing to some bushes outside, and then using the ruse to quickly spirit away a subject of an arrest warrant under her robes to a getaway car outside. Right?

Well akshually, that does not appear to be what happened at all. In fact, the complaint — which alleges that the judge obstructed the “due administration of law” (18 U.S.C. 1505 ) and concealed a fugitive (18 U.S.C. 1071) — lays out the following facts:

A team of two ICE agents, two FBI agents, and two DEA agents showed up in a Milwaukee courthouse to arrest an individual, Eduardo Flores-Ruiz, who was scheduled to appear for a hearing on unrelated criminal charges. As per courthouse protocol, various people were notified, including the judge in whose courtroom the defendant was going to appear. That judge, Hannah Dugan, and the judge whose courtroom was adjacent to hers, spoke with the arrest team. The complaint alleges that Judge Dugan “was visibly upset, and had a confrontational, angry demeanor.” (ANGRY WOMAN ALERT.) The two judges told the arrest team (why were there six people? I have no idea) to go talk to the Chief Judge. Five members of the team tromped off to the Chief Judge’s office, and one of them spoke to him over the phone. The Chief told the agents that the policy of the courthouse is that arrests have to take place in public areas (which include the hallways), but not in courtrooms or private areas. OK, his truck his rules.

Meanwhile, the complaint alleges, inside her courtroom, the Judge Dugan spoke with the defendant’s attorney while the defendant sat in the jury box, something the affidavit alleges was “very unusual.” Judge Dugan then walked the lawyer and the defendant to the “jury door” of the courtroom (in front of everyone). The defendant and his lawyer exited, and she returned to the bench to adjudicate the rest of her cases. The complaint alleges that the door the defendant went through led to “a nonpublic area of the courthouse,” suggesting that Judge Dugan was hiding them there. Except that a few paragraphs later, the complaint continues as follows:

After leaving the Chief Judge's vestibule and returning to the public hallway, DEA Agent A reported that Flores-Ruiz and his attorney were in the public hallway. DEA Agent B also observed Flores-Ruiz and his attorney in the hallway near Courtroom 615 and noted that FloresRuiz was looking around the hallway. From different vantage points, both agents observed FloresRuiz and his counsel walk briskly towards the elevator bank on the south end of the sixth floor. I am familiar with the layout ofthe sixth floor of the courthouse and know that the south elevators are not the closest elevators to Courtroom 615, and therefore it appears that Flores-Ruiz and his counsel elected not to use the closest elevator bank to Courtroom 615. DEA Agent A followed Flores-Ruiz and his attorney towards the south elevator bank. At approximately 8:50 a.m. DEA Agent A alerted other members of the arrest team that DEA Agent A was on the elevator with Flores-Ruiz. While on the elevator, Flores-Ruiz and his attorney spoke to each other in Spanish which DEA Agent A did not understand. They exited the elevator on one of the bottom floors of the courthouse and used the Ninth Street public entrance/exit to leave the building.

I’m sorry, but…what? So the defendant exits through the jury door, appears back in the public hallway, is completely visible to at least two members of the arrest team, and then rides down the elevator WITH ONE OF THE AGENTS. (P.S. It’s weird to me that a DEA agent wouldn’t understand Spanish, but…let’s focus.)

I’m truly having trouble finding how any of these facts constitute “concealment,” at all. (I guess for the 10 seconds the defendant walked through the jury room to get to the hallway?) And the obstruction piece seems pretty tenuous, too. Here’s the deal: Judges have immense discretion to run their courtrooms as they see fit. If they want random people in the gallery to sit in the jury box, it’s their call. If they want to allow people to exit through the jury door, that’s their call, too. I just don’t see how the Justice Department is going to prove “corrupt intent” on the part of the judge, especially since there could be other, plausible reasons why she might have wanted to have him exit from another door. Perhaps she didn’t want a commotion or arrest going down in the front entrance where other litigants and lawyers might need to get in. The fact that she was probably aware that the defendant would be seen by the arrest team in the hallway even after he went through the jury door tells me she likely expected him to get arrested, just in a different area. Who knows.

The bigger problem is that allowing the Justice Department to dig too deeply into the judge’s reasoning or motives has the potential to intrude on her exercise of discretion within the four corners of her courtroom. This is exactly the reasoning the Supreme Court used to afford the President “absolute immunity” for core executive branch actions, and even for acts in the “outer perimeter” of this duties. The same principle applies to judicial immunity, which is also a thing. Doh!

There’s also a federalism problem here. Back in 1997, the Supreme Court decided a case called Printz v. United States, which held that under the Tenth Amendment, federal law enforcement could not “commandeer” local and state law enforcement to enforce federal law. (This involved federal law enforcement requiring local and state law enforcement to run background checks for guns.) If the federal government can’t commandeer state executive branch functions, I can’t see how they have the ability to commandeer state judicial functions. To wit: While Judge Dugan could not block federal agents from enforcing federal law, she also had no obligation to deliver the defendant into their arms. You might say that she had not obligation to “facilitate” his arrest. :)

In short, this not only seems like a hard to win case on the facts, it has some pretty problematic legal issues for the feds. It seems like exactly the kind of case the Justice Department wouldn’t want to bring, since losing would be both embarrassing and a precedent potentially constraining future actions.

Unless, of course, actually winning the case isn’t really the point.

If the point is, well, to make a point — namely, that the Justice Department will deploy its resources against any judge who is not 100% compliant and subservient to the Trump administration’s agenda, then it makes total sense. That is, after all, the message the administration is sending to every other institution that has any power in our democracy.

The arrest of Judge Dugan is, of course, of a piece with the war the Trump administration is ready to wage against the judiciary writ large. Renato and I discuss where this all leads in this week’s podcast:

NEW! Freedom Academy Book Club Selection

I recently gave a talk sponsored by the Museum of Public Corruption on complicity and corruption. One of the gifts I got from my host was Fordham Law Professor Zephyr Teachout’s Corruption In America: From Benjamin Franklin’s Snuff Box to Citizen’s United. Written in 2014, Professor Teachout presciently warned that the narrowing of the legal definition of “corruption” to only explicit quid-pro-quos by government officials opened the door to eroding fundamental democratic values and strayed far from the Founders’ ideal of public virtue. “What America now faces, if we do not change the fundamental relationship of money to legislative power,” she writes, “is neither mob rule or democracy, but oligarchy.” Ummmmmm…so here we are. Join me and Professor Teachout as we discuss how right she was, and what we can do about it now. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted after in case you can’t make it live!

My TV appearances this week:

• I was interviewed for a PBS Newshour segment last night (it’s the first segment — they only used a small piece of our interview but their piece is a thoughtful and thorough report, which PBS is always great at!)

Articles worth reading this week:

• It’s getting lost in the noise, but Meta is on trial this week in an antitrust lawsuit brought by the FTC (under Trump, in his first term). This New Yorker piece looks at the legal argument Meta is making and how difficult it is for regulations to keep up with the pace of changing technology in the digital age

Upcoming events:

• Zoom Office Hours, Wednesday, April 30, 5 p.m. ET. We’ll discuss the latest. Zoom link will be sent three hours before the discussion. This will not be recorded.

• NEW! Freedom Academy Book Club with Professor Zephyr Teachout, author of Corruption in America: From Benjamin Franklin’s Snuff Box to Citizen’s United. Date/Time TBA (sometime in June!). Discussion will be recorded and posted for paid subscribers.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump and Musk’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Learn from the past. I was a Latin American studies scholar in college and have been invoking the Chilean example in a lot of my commentary, because of the parallels the dictatorships in that region in the 1970s. I’m not the only one noticing them. I am looking forward to tuning in to this panel hosted by the Washington Office on Latin America and the National Security Archive on “Lessons From Latin America as the United States Reckons with Forced Disappearances.” It’s virtual and open to the public — you can register here.

   

3. Self care tip of the week: Write. I’ve been journaling off and on for my whole life, but I have been thinking about the moment we’re in and how documenting how we are experiencing it can not only be therapeutic, but also a valuable record of what this was like to live through.

‘Rise like Lions after slumber
In unvanquishable number—
Shake your chains to earth like dew
Which in sleep had fallen on you—
Ye are many—they are few.’

— The Masque of Anarchy by Percy Bysshe Shelley, stanza XXXVIII