Cruelty and Intimidation are the Goals

The prosecution of Judge Hannah Dugan had nothing to do with ICE enforcement and everything to do with intimidation

Make no mistake. The recent arrest of Wisconsin judge Hannah Dugan is not about the enforcement of our nation’s immigration laws. It is about undermining the autonomy and independence of the state courts (just as this administration has attempted to do with federal judges).

It started in Trump 1.0. In 2018, United States District Court Judge Indira Talwani rebuked ICE for arresting a Chinese national outside her courtroom, saying, “I see no reason for places of redress and justice to become places that people are afraid to show up.” That was only the beginning. Courts around the country sought to ensure that their courtrooms would be free from ICE interference, that witnesses would be free to testify, victims to bring their grievances, and defendants to receive the due process to which they are entitled. This is not about which states or cities are “sanctuaries.” It is about whether we have a functioning autonomous state court system.

The case of Judge Shelley Joseph in Massachusetts was the proverbial “canary in the coal mine.” Joseph, a state court judge, was indicted for obstruction of justice, the government claimed,—as in the Dugan case—that she conspired to allow an undocumented immigrant to evade ICE arrest. At the time of Joseph’s indictment, there was considerable controversy about how state courts would respond to ICE agents arresting undocumented immigrants in court. Many state judges were rightfully concerned (as was Judge Talwani) about access to justice; troubled about creating impediments for undocumented immigrants to come forward as witnesses to, or victims of, crimes. The Joseph case raised serious questions about judicial immunity and the constitutionality of the federal government’s efforts to undermine state courts. Fortunately, the case was ultimately dismissed by the Biden Department of Justice.

That campaign of intimidation has come roaring back with Trump 2.0. In Massachusetts, an ICE agent chose to detain an undocumented individual in the middle of his trial on state charges. When the case was adjourned for the day, the ICE agent waited outside the courthouse and pounced. No one bothered to explain why it was necessary to detain the man or how ICE so easily disrespected an ongoing state criminal trial. The judge presiding over the matter was rightfully furious.

When the state D.A. Kevin Hayden criticized ICE, accusing it of “trampling on our criminal legal system,” the new U.S. attorney, Leah Foley, sounding a great deal like the President, took no time to blast him. She threatened Hayden with prosecution for “entertaining” any charges against the ICE agent. “Any attempt or threat to interfere with the lawful actions of federal government agents will not be tolerated,” she said. But it was not a two-way street.

In one of her first interviews after becoming Acting U.S. Attorney, Foley insisted that in federal cases, she would urge ICE officers to keep suspects long enough for her office to convict them before they are deported. “It's no fun when you do the investigation and you get the arrest and the investigation is completed and then you can’t go forward because another agency has deported the person,” she explained. State prosecutions? They were not so important.

That the prosecution of Judge Hannah Dugan had nothing to do with ICE enforcement and everything to do with intimidation is clear by the way it was handled. The “offense,” if there was one, took place on April 18; the prosecution was brought on April 25. There was no emergency. The government could well have issued a summons for Judge Dugan to appear at the federal courthouse, rather than arresting her. No one doubted that she would have respected it. To complete the ceremony of degradation, FBI Director Kash Patel posted a photo on X Friday night of the judge while she was handcuffed and escorted to a vehicle by officials. The caption by Patel read, “No one is above the law.” According to the Confidentiality and Media Contacts Policy listed on the Justice Department’s website, DOJ personnel “should not voluntarily disclose a photograph of a defendant unless it serves a law enforcement function or unless the photograph is already part of the public record in the case.”

Then there were the chilling comments by Attorney General Bondi. “What has happened to our judiciary is beyond me,” Bondi said. “The [judges] are deranged is all I can think of. I think some of these judges think that they are beyond and above the law. They are not, and we are sending a very strong message today...if you are harboring a fugitive…we will come after you and we will prosecute you. We will find you.”

So let us all be clear. No, this isn’t about ICE enforcement. This is about unbridled and thuggish assertion of power by a DOJ hell-bent on intimidating state and federal judges.

Honorable Nancy Gertner

Retired Judge, U.S. District Ct., D. Mass.

Senior Lecturer, Harvard Law School