As we await more details about CBP’s latest murder in Minneapolis, I wanted to point to an attempt by DOJ to get a writ of mandamus because Magistrate Judge Douglas Micko denied five of eight arrest affidavits they asked for, targeting Nekima Levy Armstrong and Chauntyll Allen and others who protested at a church led by the local ICE commander.
As MN Chief Judge Patrick Schiltz explained in a letter to the 8th Circuit’s Chief Judge, Steven Colloton, minutes after Micko refused warrants for five of the people DOJ targeted, the US Attorney came to him, asking for a District Judge to issue the warrants. After Schiltz was assigned on the case, he asked the other District Judges if they had ever heard of DOJ asking a District Judge to override a Magistrate’s decision; none had. He told DOJ he would not issue arrest warrants until after speaking with the other judges at a bench meeting scheduled for Thursday. That meeting got delayed to January 27 because of security concerns arising from the presence of Pam Bondi and JD Vance at the Federal building.
So DOJ filed for an an emergency writ of mandamus, claiming there was an emergency requiring the arrests of the other protesters immediately.
As Schiltz describes DOJ’s claim of emergency:
The five people whom the government seeks to arrest are accused of entering a church, and the worst behavior alleged about any of them is yelling horrible things at the members of the church. None committed any acts of violence. The learders of the group have been arrested, and their arrests have received widespread publicity. There is absolutely no emergency. The government could have sought indictments from a grand jury on Tuesday, January 20, Wednesday, January 21, or Thursday, January 22, but chose not to do so.The government can still take its case to a grand jury any time it wishes. Instead, the government is insisting that I do something that, as best as I can tell, no district judge in the history of the Eighth Circuit has done.
In a follow-up email, Schiltz accuses DOJ of saying things that are true of only some of the people DOJ has targeted, clearly describing that Don Lemon and his producer did not commit any crime.
The government lumps all eight protestors together and says things that are true of some but not all of them. Two of the five protestors were not protestors at all; instead, they were a journalist and his producer. There is no evidence that those two engaged in any criminal behavior or conspired to do so.
More importantly, Schiltz described other more pressing emergencies, including ICE defying multiple orders, including regarding a two year old girl.
I am also dealing with a number of emergencies, including a lockdown at the Minneapolis courthouse because of protest activity, the defiance of several court orders by ICE, and the illegal detention of many detainees by ICE (including, yesterday, a two-year old). And I have been given a little over an hour to submit this additional response
A panel of the Eighth Circuit denied the writ (though one fo them, Trump appointee Steven Grasz, declared there was probable cause against all five others, including Lemon and his producer).
Schiltz is a two-time Antonin Scalia clerk and a George W. Bush appointee. This is who is getting impatient with Pam Bondi’s theatrics.
The big question is why DOJ simply didn’t go to the grand jury. Are they so sure they’d get no-billed, or do they simply not have any local AUSAs who are willing to present this case?