Prosecutors: Judge Dugan Knew She Exceeded Her Authority

It has been nearly a month since a judge decided that the case against Judge Hannah Dugan should not be dismissed as her lawyers hoped. 

Dugan filed a motion in May to dismiss the charges against her, saying she was acting in her official capacity as a judge and therefore is immune to prosecution. She argued that the federal government violated Wisconsin’s sovereignty by disrupting a state courtroom and prosecuting a state judge.

U.S. Magistrate Judge Nancy Joseph on Monday recommended against dropping the charges…

Joseph wrote in her recommendation that while judges have immunity from civil lawsuits seeking monetary damages when engaging in judicial acts, that does not apply to criminal charges like those in this case.

“A judge’s actions, even when done in her official capacity, does not bar criminal prosecution if the actions were done in violation of the criminal law,” Joseph wrote.

The decision by Judge Nancy Joseph was not a final determination that the case would not be dismissed. In fact it was only a recommendation which was then handed to another judge who will have to decide wither the case is dismissed or will instead move to trial. District Judge Lynn Adelman is the trial judge for the case and nearly a month later she still hasn’t ruled on the dismissal or said when she plans to do so.

However, while Judge Adelman is mulling the case over, prosecutors continue to submit evidence in the case. Last week they revealed something that could be a key part of a trial (if a trial happens).

Prosecutors allege Milwaukee County Judge Hannah Dugan said in April that she would take “the heat” for her actions before she directed an undocumented immigrant — wanted for arrest — out a side door typically used by jurors in her courtroom…

The quote attributed to Dugan was included in the government’s court filing on July 29, summarizing some of the evidence prosecutors would present in a trial against Dugan…

“The evidence will show that her actions included … stating she would take ‘the heat’ for her actions, and then physically escorting E.F.R. and his attorney into a non-public hallway with access to a stairwell that led to a courthouse exit,” the prosecutors wrote in the 30-page filing.

This comment prosecutors say Dugan made could be important in a trial as they seek to prove that Dugan exceeded her authority as a judge — and knew she was doing it.

If she did say this then it really seems to undercut the idea that she was just doing her job. If she anticipated taking “the heat” it was probably because she knew she was doing something she could get in trouble for. That detail didn’t appear in previous submissions of evidence in the case. I’m not clear where they got this specific statement but there were lawyers and staff in the courtroom where this was happening so there could be one or more witnesses.

Judge Dugan’s lawyers filed a response to the prosecution the next day but apparently had nothing to say about Dugan’s (alleged) admission. Instead, her lawyers are doubling down on the idea she was just carrying out official acts and therefore has immunity.

In their July 30 filing, Dugan’s lawyers did not respond to the claim that she said she would take the heat for her actions. Instead, they argue that she is being prosecuted for “official acts” routinely performed by a judge, and any possible motives don’t matter.

“Motive is irrelevant because the official judicial acts are immune; beyond prosecution as official steps and nothing more,” Dugan’s lawyers wrote…

In its July 30 filing, Dugan’s attorneys say the government is misstating facts in the case, but don’t address that quote specifically.

It seems to me this is the same argument that Judge Nancy Joseph said was not good enough reason to dismiss the case. In other words, the immunity claim doesn’t hold. Unless Dugan’s legal team thinks their best shot is to convince Judge Lynn Adelman to ignore the recommendation and dismiss the case, I’m not sure why they are doubling down on a losing argument.

My take, as a non-attorney, is that Judge Dugan is cooked. The only reason there’s any question about her guilt in this case is because there are judges who would desperately love to spit in the eye of the Trump administration by letting her go. It’s sort of the judicial equivalent of jury nullification and it could still play a role before this gets to trial.