Asking partisans on both sides of President Trump’s divide to cool off in the aftermath of the latest controversy has all the markings of a fool’s errand.
People often react to the latest controversy solely as their emotions dictate. That’s not always wrong, but more complicated issues require clear thinking.
Consider the aftermath of a Wisconsin judge’s arrest after she allegedly obstructed federal agents attempting to take an illegal immigrant into custody.
Just deserts? Or a constitutional outrage?
A respected state appeals court judge, Justice James Knecht of Bloomington-Normal, characterized Wisconsin Judge Hannah Dugan’s arrest as “reminiscent of King George, Hitler and Mussolini.”
Dugan was charged in federal court for assisting the brief escape of illegal immigrant Eduardo Flores-Ruiz.
Flores-Ruiz was deported once under President Obama. But he returned, a move that makes him automatically removable from the U.S. and subject to federal prosecution.
But his status is not the issue. Dugan’s arrest is.
Writing about the controversy, constitutional scholar and former University of Illinois law school dean Vikram Amar charged that a fevered reaction to Dugan’s arrest “reflects a failure to draw distinctions that careful lawyering and adherence to true rule-of-law principles require.”
The controversy is heavily fact-dependent.
Authorities allege Dugan, angered by the presence of federal agents, “confronted and ordered” them to leave her Milwaukee courthouse. After being informed they had a “valid immigration arrest warrant,” she demanded they visit the chief judge’s office.
While they did so, Dugan allegedly “personally escorted” Flores-Ruiz through a “restricted ‘jury door’ exit” leading to a non-public hallway through which he left the courtroom and courthouse.
Flores-Ruiz was subsequently arrested after a foot chase.
If that is an accurate depiction of events, Amar wrote in a Justia.com article, jurors could find she was not acting in “her capacity as a judge” but “in her capacity as an individual aider and abettor of someone who was trying to elude federal authorities.”
He noted that under constitutional principles establishing the relationship between the U.S. government and the states, “federal law is supreme over inconsistent state laws and policies, and under which all persons, including state officers, must comply with valid federal enactments.”
While state officials cannot be required to assist federal officers, they “have no right to obstruct or interfere” with them.
Many people base their judgments on political sympathies. So Amar asked Dugan supporters to “imagine a state judge in the deep South in the 1960s similarly abetting the attempted escape of someone the feds sought to arrest in connection with the bombing of Black churches.”
At the same time, legal analyst Andrew McCarthy offered another perspective. He characterized Dugan’s conduct as “egregious,” but outlined her potential defense.
He said she can argue she was acting within her authority because it is “not illegal” to allow a defendant to leave a courtroom by a “limited-access route” and that her actions were consistent with the “proper administration of the state court system” that federal agents were disrupting with their “covert arrest operation.”
Further, she was “not hiding” Flores-Ruiz but declining to be illegally commandeered by the feds in their enforcement effort.
The legalities, of course, are unrelated to the personal judgment that all the parties to this controversy displayed.
Both sides were making an extralegal point — feds publicly enforcing the law and Dugan resisting it.
A jury ultimately will have to resolve this controversy. In the meantime, Dugan has been suspended by the Wisconsin Supreme Court.
