Posts

The Law, Conspiracism, and Gravity

/37 Comments/in /by

The lawsuit [docket] by nine FBI agents attempting to prevent the public release of a list of the names of all agents who worked on January 6 has detoured into a debate about Eagle Ed Martin’s frustrations with rule of law.

That debate provides useful background to something going on more generally — the Trump Administration’s effort to sustain the conspiracism that fuels MAGAt in the face of judges and a law built around evidence.

After Eagle Ed failed to secure Senate confirmation to be US Attorney and was instead moved to head DOJ’s Weaponization and Pardon offices (in the latter of which he is considering freeing the men convicted of plotting to kidnap Gretchen Whitmer), Eagle Ed went on a media blitz promising to name and shame those he had long targeted as villains, but whose villainy consisted of no more than substantiating the crimes that Trump and his mob had committed.

There are some really bad actors. Some people that did some really bad things to the American people. And if they can be charged, we’ll charge them. But if they can’t be charged, we will name them. And we will name them and in a culture that respects shame, they should be people that are shamed. And that’s a fact. That’s the way things work. And so, that’s how I believe the job operates. [emphasis original]

Plaintiffs pointed to this appearance, arguing that Eagle Ed’s promise to name and shame his targets confirmed the concerns of the plaintiffs that a list compiled in the first days of the Administration would be released to help freed insurrectionists retaliate against FBI agents. The government responded by claiming that Eagle Ed would follow DOJ rules (as if Pam Bondi’s DOJ follows even court rules about public comment!). Plaintiffs replied by quoting still more appearances from Eagle Ed’s media tour, including his complaints that he can’t get what he calls the truth out in Article III courts.

Mr. Martin’s comments during his May 15, 2025 interviews lead to several conclusions. First, he views his perceived mandate to “name” and “shame” as a legitimate alternative to following basic standards of federal criminal procedure. Second, he has indicated he is unconcerned about the consequences if he improperly or unlawfully “names” and “shames” government employees. (“Watch me” and “let the chips fall where they may.”) Third, he believes that the trigger to “name it and shame it” is when something does not personally “make sense” to him. This is particularly troubling when considering Mr. Martin’s frequently publicized views about the events of January 6, 2021, which includes his own representation of several criminal defendants and his dismissal of one of those cases as United States Attorney. 5

For example, on or about May 14, 2025, Mr. Martin sat for a one hour, twenty minute broad-ranging interview with television personality Tucker Carlson.6 On the January 6 riots, he lamented that “[m]illions of Americans are falling victim to the hoaxes, one after the other, and if you fall victim to the January 6th hoax, that it was an insurrection, armed, and this close to the end, then you might . . . rant and rave and things like that.”7 To say the least, this indicates a vast departure from the Department of Justice’s previous position that the January 6 insurrection at the United States Capitol was not a hoax, and in fact involved the commission of serious, violent crimes. Far from enjoying the presumption of regularity, today’s Department of Justice is anything but regular. Al-Hela v. Biden, 66 F.4th 217, 237 (D.C. Cir. 2023) (“[The presumption of regularity] can be rebutted if a petitioner demonstrates internal inconsistencies or inconsistencies with other evidence.”).

After discussing his suspicions about the FBI’s involvement in January 6, including in the FBI’s investigation into the pipe bombs found near political party headquarters that day, Mr. Martin again addressed his frustration with Article III courts, and emphasized why publicizing private information is preferable to going through established procedures:

Mr. Martin: And by the way, one of the reasons why I say information is so key, you can’t, we can’t win the Article III battle fast enough. We can fight it, and we can eventually win lots of them, you can’t win it fast enough to get the progress we need, in terms of our, so you’ve got to be doing the information from . . .

Mr. Carlson: For people watching, what’s the Article III battle?

Mr. Martin: Yea, the Article III means like, the federal courts, we’re in federal courts, the President says you can’t let people come into the country, and then the courts say nationwide injunction, then you know you’re not allowed to do that, and you’re constantly in court. You know, the U.S. Attorney’s Office for D.C. has all of the cases of when the government is sued, and the President is sued, they all come into our office on the civil side, and so you see all that stuff coming in. During the Biden administration, the conservatives were suing in Texas, it was friendlier judges, now it’s in D.C. So you’re in the courts, fighting to get the truth out, fighting to make these things, prosecutions and all, but they take a longer time than just getting the word out, right? Getting the information out. I just, I feel like it’s a different moment in history, and that’s how I was as U.S. Attorney, that’s why you saw, people saw so much outfacing action, because I wasn’t just looking at courts, I was looking at making an argument for the public so they could see the policies.8

5 See Andrew Perez, Trump’s New Federal Attorney Withdrew Jan. 6 Charge Against His Own Client, Rolling Stone, Feb. 5, 2025 and United States v. Padilla, 1:21-cr-214-JDB (D.D.C.), Unopposed Motion to Dismiss Case by USA, ECF No. 125.

6 Available at https://www.youtube.com/watch?v=LotMJAdWyOs (last visited May 22, 2025). 7 Id. beginning at approximately 00:09:00. [my emphasis]

Eagle Ed doesn’t want to take the time to build cases. He wants to make an argument.

The problem, of course (besides those pesky rules on public comment), is that Eagle Ed’s “arguments” have no basis in reality, and never have. The problem Article III courts pose for Eagle Ed is they review the evidentiary claims the government makes. And once courts start reviewing conspiracy theories of the sort Eagle Ed favors, they poke holes in them.

That’s what happened — according to a recent NYT story — to Eagle Ed’s efforts to criminalize EPA grants.

A politically fraught investigation opened by the Trump administration into a Biden-era Environmental Protection Agency grant program has so far failed to find meaningful evidence of criminality by government officials, according to people familiar with the matter.

[snip]

While the investigation of some entities that received money through the program is continuing, agents and prosecutors see little evidence of any criminal conduct by E.P.A. officials who oversaw the funding. The vendor portion of the inquiry has yet to yield any strong evidence of criminal conduct, according to people with knowledge of the investigation who spoke on the condition of anonymity to discuss private conversations.

Prosecutors and agents have shared their findings with senior political leaders at the Justice Department, according to people familiar with the matter.

When you chase James O’Keefe propaganda, it turns out to be false … what a shock!

Most of Eagle Ed’s complaints were directed at civil cases (where judges do keep catching DOJ in lie after lie after lie). But as Pam Bondi’s DOJ moves to weaponizing DOJ via criminal charges, it will likely become a still bigger problem.

In the criminal cases charging Democratic officials, Judge Hannah Dugan, Ras Baraka, and LaMonica McIver, the facts claimed using criminal complaints rather than grand juries deviate at least partly from reality and the inflammatory claims Trump’s aides have made publicly deviate further still.

For example, county officials released video from Judge Hannah Dugan’s interactions with an ICE team. Among other things, it clarifies that the doorway whence Eduardo Flores-Ruiz reentered the hallway from Judge Dugan’s courtroom was closer to the Chief Judge’s office where Dugan had sent the officers working with ICE than her own courtroom door; if she was really trying to hide him, she did a poor job of it. It also shows two DEA guys (possibly one of the ones she sent away) watch Flores-Ruiz just walk away down that hallway without arrest, undermining the claim that she concealed him (though success at concealing someone is not required to convict).

In New Jersey, the government told a different story in the felony criminal complaint against Congresswoman McIver, sworn out by HSI Special Agent Robert Tansey before Magistrate Judge Stacey Adams, than HSI Special Agent in Charge Rickey Patel swore out in the criminal complaint against Baraka before Magistrate Judge André Espinosa. Homeland Security told one story to a judge on May 9 and another story to a different judge on May 19.

The complaint against Baraka based its claim that Newark’s Mayor knowingly trespassed by pointing to the chainlink fence and No Trespassing signs.

3. The Delaney Hall Facility is surrounded by chain-link fences and is accessible only through granted access. In addition to maintaining security, it likewise displays No Trespassing signage.

But the complaint against McIver confesses that a security guard let Baraka in.

5. Perimeter cameras show that when the security gate of Delaney Hall opened momentarily to allow a vehicle to enter into the secure area of the facility, McIVER and two other members of Congress moved quickly inside the secured area as the gate closed.

6. Once the group entered the secured area, the Mayor arrived thereafter at the facility and was told he could not enter without authorization.

7. However, the Mayor returned with members of his security detail and was able to enter inside the gate because the guard was under the impression that the Mayor was part of the Congressional delegation.

8. While McIVER and the Mayor were in the secured area of the facility, V-1, an HSI agent, approached the Mayor and ordered him to leave the facility’s secure area.

9. V-1 spent approximately five minutes repeatedly ordering the Mayor to leave and issued multiple warnings that he would be arrested if he did not do so.

10. McIVER and the other Congresspersons overheard this conversation and challenged V-1, protesting the Mayor’s removal. V-1 explained to them that “Congress people are different,” indicating members of Congress had lawful authority to be there, and that the Mayor did not.

11. After numerous warnings to leave, and numerous warnings of potential arrest, the HSI agent announced he was going to place the Mayor under arrest. McIVER interjected, yelling “Hell no! Hell no! Hell no!” The HSI agent ordered the Mayor to put his hands behind his back and displayed his handcuffs. McIVER and other members of Congress surrounded the Mayor and prevented HSI from handcuffing him and taking him into custody.

12. McIVER initially remained inside the secured area as the Mayor was then moved outside the gate.[my emphasis]

These details of the complaint against McIver will be hotly contested. WaPo did a good assessment of what the video evidence shows. It shows Baraka remained unchallenged inside the perimeter of the facility for almost 45 minutes. WaPo describes that after an initial confrontation and after a guard told Baraka to “walk out,” he did (which is consistent with Baraka’s own claims), as compared to the complaint’s description that the Mayor, “was moved outside,” using the passive voice.

For nearly 45 minutes, Baraka remained just inside the secured area, occasionally chatting with members of his security detail, according to time-stamped videos. Then, at around 2:33 p.m., Homeland Security agents exited the building and confronted Baraka. In snippets of the conversation captured in video, agents told Baraka he had to leave because he was not a member of Congress. The three members of Congress joined the discussion as it grew tense.

Minutes later, video shows, an agent took a step toward Baraka, and Watson Coleman can be heard urging calm.

Referencing that moment, the Justice Department’s complaint said a Homeland Security agent ordered the mayor to “put his hands behind his back and displayed his handcuffs.”

McIver grew animated, calling the agent’s intervention “unnecessary” and “ugly.” One of the agents can be heard in videos saying: “All right, then. Walk out.”

At 2:39 p.m., within moments of that remark, and six minutes after agents first confronted Baraka, he turned and walked away, arm-in-arm with Watson Coleman. The guard reopened the gate, and Baraka exited to an area in front of the facility, recessed from the sidewalk.

Then, after Baraka walked out, the guards plotted to arrest him within earshot of Rob Menendez, Jr, who warned Baraka.

With concerns about Baraka’s presence seemingly resolved, the three House members returned to the building for a tour, according to interviews with congressional staffers. The mayor remained outside the gate, speaking with reporters and protesters. Inside the building, congressional staffers said, lawmakers saw agents huddled and overheard them discussing plans to arrest the mayor.

Menendez then quickly exited the building and approached the gate, videos show. He spoke to Baraka through the chain-link fence, warning that agents were going to arrest him.

About a dozen agents then massed behind the fence. Some pulled masks up over their faces, and the group exited the facility gate and approached Baraka with handcuffs.

This was a premeditated confrontation on public land. And, WaPo describes, after Baraka’s arrest, the members of Congress — including McIver — returned to the facility.

After the scrum, agents accompanied McIver and the other House members as they resumed their tour of the facility — part of nearly two hours combined she remained on the grounds.

As Menendez noted in an interview with the Hill, “If you would witness an assault of an officer, you would not bring a group of people in to do a tour for 45 minutes.”

The government’s priorities — first arresting Baraka for trespassing after he left the premises into which he had been freely admitted, then letting McIver back in after she purportedly assaulted two officers — betrays what a stunt this is. And all that’s before you look at Kristi Noem’s typically batshit comments, which DHS did not defend when WaPo inquired about them.

Speaking about the events outside the Delaney Hall detention facility, Department of Homeland Security Secretary Kristi L. Noem last week testified to Congress that a “mob of protesters including three members of Congress stormed the gate and they trespassed into the detention facility.” Her department published a news release claiming the lawmakers used an arriving “bus of detainees” as a decoy to gain entrance, then “holed up in a guard shack.” A department spokeswoman said lawmakers attacked officers, including “body slamming a female ICE officer.”

The videos examined by The Post did not support those descriptions of the events, and the government did not include them in its charges against McIver. In response to a request for comment, Noem did not directly address The Post’s findings about her remarks but noted in a statement that McIver had been charged. “No one is above the law,” she said.

Noem’s thugs ginned up this confrontation and then she blew them out of proportion. None of their actions — letting Baraka remain uncontested for a period, arresting Baraka after he left, allowing McIver back in after she purportedly assaulted them — make sense. But having ginned up that confrontation, with Noem further escalating them with false claims, DOJ had to do something. They first charged, then abandoned charges against Baraka. Now they’re attempting to prosecute McIver. And if this goes to trial, all the equivocations will be evidence of the unreliability of those behind the arrest.

The clown show has not gone unnoticed.

In comments made while dismissing the case against Baraka, Judge Epsinosa admonished Stephen Demanovich, the AUSA who picked up the Baraka case from a colleague and who is listed as the lead prosecutor in the case against McIver, for charging Baraka before investigating what really happened.

Mr. Demanovich, beyond those 9.5 million constituents and above any individual or agency interests, federal prosecutors serve a singular paramount client: Justice itself.

Your role is not to secure convictions at all costs, nor to satisfy public clamor, nor to advance political agendas.

[snip]

The hasty arrest of Newark Mayor Ras Baraka, followed swiftly by the dismissal of these trespassing charges a mere 13 days later, suggests a worrisome misstep by your Office. An arrest, particularly of a public figure, is not a preliminary investigative tool. It is a severe action, carrying significant reputational and personal consequences, and it should only be undertaken after a thorough, dispassionate evaluation of credible evidence.

[snip]

The apparent rush in this case culminating today in the embarrassing retraction of charges suggests failure to adequately investigate to carefully gather facts and to thoughtfully consider the implications of your actions before wielding your immense power Your Office must operate with higher standard than that.

This is something I’ve been anticipating, as Trump and Eagle Ed and Pam Bondi and Noem promise prosecutions: They’re creating the expectation among Trump’s mob that there will be slam dunk prosecutions — precisely the same thing Eagle Ed kept promising but failing to substantiate — but in the process demonstrating the government’s unreliability. “[T]oday’s Department of Justice is anything but regular,” the nine FBI agent plaintiffs argued, because the government has “demonstrate[d] internal inconsistencies or inconsistencies with other evidence.”

I’m interested in this for two reasons: first, the possibility that these prosecutions will backfire, not just by creating sympathetic political martyrs, but also by further exposing Bondi and her top aides as liars violating legal ethics. Just as important, I’m interested in whether, as Trump’s people have to abandon false claims when faced with judges, they’ll lose credibility with Trump’s rubes.

Several people entertained the latter possibility after Dan Bongino and Kash Patel debunked conspiracy theories about Jeffrey Epstein’s death last week.

Phil Bump described what happened here.

Over the weekend [now the weekend before last], Bongino — now the deputy director of the FBI, thanks to the president Bongino championed relentlessly for years — sat down alongside his boss, FBI Director Kash Patel, for an interview with Maria Bartiromo on Fox News’s “Sunday Morning Futures.” Bartiromo, never one to shy away from a right-wing conspiracy theory, asked about Epstein.

“You said Jeffrey Epstein committed suicide,” Bartiromo said. “People don’t believe it.”

“Listen, they have a right to their opinion,” Patel replied. But given his own experience and background, he said, “you know a suicide when you see one, and that’s what that was.”

“He killed himself,” Bongino added. “I have seen the whole file. He killed himself.”

When he subsequently posted his assessment of Epstein’s death on social media, the response from many of his followers was furious. Who’d gotten to him? Where was the Bongino from the podcast? He was offering a truth about America that wasn’t immune to the facts (as his podcast once promised) and his fans didn’t want to hear it.

Conspiracy expert Mike Rothschild reflected on the event and contemplated the possibility that conspiracists may no longer get away with contradicting their own past claims.

[B]ecause contradiction is inherent to conspiracism, nobody minds if a trusted and cherished influencer says something wildly at odds with something they said another time. Sure, Mike Flynn can support QAnon while also saying QAnon is nonsense, or Alex Jones can get unreasonably excited about Trump seizing total power despite having spent years decrying presidents who sought total power. It doesn’t matter, because these people are trusted. And trust is everything among people who don’t trust anyone.

But that might be changing, and recent adventures in contradiction haven’t gone well for major figures in conspiracism. We might be going back to a time when certain ideas in fringe spheres are so ingrained and taken as infallible gospel to the point where even these trusted figures can’t go against them.

As Trump 2.0 grinds on, and the brain-rotting of the west accelerates at Ludicrous Speed, even major figures in the world of cranks and frauds are running up against the immovable object of their conspiracies moving past the need for the people who popularized them. The idea is starting to outweigh the person who communicates the idea. And it’s a shift that doesn’t bode well for many major figures in the intersection of politics, conspiracy, and commerce.

[snip]

No matter how much the conspiracy faithful like or trust Patel and Bongino, it’s not enough to override their belief in the idea of Epstein being murdered (probably by the Clintons) and his death made the subject of a coverup. That idea is sacrosanct to them. It is unshakable. And it’s telling that even two of the biggest purveyors of conspiracy theories in American politics didn’t embrace it in an official capacity when they had the chance to.

And now they’ve lost the trust of their audiences, at least for now. They can probably recover from this and sweep it away with some kind of justification, but the two are finding that it’s a lot easier to spout nonsense from the sidelines than it is to have to deal with it personally – particularly when your boss is connected to the guy at the center of the conspiracy theory.

Bump provides a possible explanation why: conspiracy theories are the weapon of the weak, not people in powerful positions like FBI Deputy Director.

“Powerful people can’t use conspiracy theories very well,” Joseph Uscinski, associate professor of political science at the University of Miami and the co-author of “American Conspiracy Theories,” told me in 2017. “They’re tools of the weak to attack the powerful. But what we’ve seen in this instance is … Trump has built his entire machine on conspiracy theories.”

He’s built his machine in that way because reality doesn’t comport with his rhetoric. His claims about immigration or his criminal cases or Joe Biden are indefensible if left to rely on actual evidence. So he relies instead on rumors, lies and baseless claims. It works largely because he’s built a universe of compliant voices — like Bongino’s — in an isolated information environment. He can make obviously false statements and be confident that his supporters will never encounter (much less seek out) the countervailing evidence.

He’s also more adept at keeping the conspiracy theories alive. This is someone who, as president, refused to disavow adherents of QAnon, a bizarre theory about how he was secretly battling a cabal of Democrats and movie stars who were stealing children and extracting chemicals from them. (“I know nothing about it,” he said of the movement at one point. “I do know they are very much against pedophilia.”) He never flatly rejects any idea that his base supports, from theories about Epstein’s death to false claims about vaccines.

Others in his administration can’t do that as readily.

In some cases, reality is rewritten to accommodate the argument advanced by Trump. Experts who rejected a link between a Venezuelan gang and that country’s government were fired. Tattoos on a man sent to El Salvador are presented as reading “MS-13” when they don’t.

In other cases, the can just keeps getting kicked down the road. When Attorney General Pam Bondi (Patel’s boss) attempted to meet the roar of demand for ties between Epstein and prominent people on the left, she invited right-wing social media influencers to the White House and handed them binders of already available material. It was a flop — so Bondi keeps promising more to come. Those promises, incidentally, are one reason that the backlash against Patel and Bongino was so robust.

You can manipulate public releases — Eagle Ed’s preferred tactic — by cherry picking and relying on propagandists. Stephen Miller deliberately pursued a legal tactic, the Alien Enemies Act, he believed afforded him the ability to make shit up about human beings with no pushback.

But, thus far at least, criminal cases are different, because they come with Speedy Trial deadlines, the ability to confront accusers, and — in the case of public events captured by video — compelling proof of government lies or overreach.

For now, until Trump packs the courts with more judges who adopt his conspiracy theories, DOJ will be a uniquely important sphere where Trump officials like Bongino will face the awkward moments where conspiracy theories experience gravity, where even past enthusiastic adherents to conspiracy theories cannot sustain them, where Eagle Ed attempts to resort to name and shame rather than criminally charge the people who arrested thousands of January 6 mobsters. Even Pam Bondi, one of the most rabid parrots of Trump’s propaganda, has earned the distrust of Trump’s rubes with her own failure to deliver proof of the Epstein conspiracy theories.

None of that eliminates the pain and legal risk of those targeted with Trump’s legal conspiracies. Baraka’s lawyer, Rahul Agarwal, cataloged the cost being unjustly charged had had in just two short weeks.

MR AGARWAL Judge the only other thing I’d say and I think it’s worth noting publicly is you know the fact of this dismissal 10 days after the charges were — or lodged nearly two weeks after the charges were lodged does not undo the things that happened over the last two weeks; namely the fact that the mayor was detained for five hours in custody and the fact that he’s been under these criminal charges We can’t erase those things And think it’s worth noting that notwithstanding this dismissal the mayor had to undergo you know public scrutiny and interrogation and detention all because of charges that are now being dismissed.

None of that guarantees the effort to use DOJ as an instrument of Trump’s conspiracies will fail. And we saw in the Michael Sussmann and Igor Danchenko cases — Trump’s prior attempt to weaponize DOJ — that the cost can extend far beyond five hours of detention.

But there’s a way in which Trump and Bondi and Eagle Ed’s abuse of DOJ could backfire. Because it creates a sphere in which the legal claims made in court and the political claims made on Fox News dramatically split. It creates a sphere in which those stoking conspiracy theories, like Bongino, publicly debunk them. It creates the possibility that those seizing power by selling fear of the Deep State become it.

Share this entry

The Comings and Goings from Stephen Miller’s Gulag

/58 Comments/in /by

Let’s start with the good news, not least because the good news may explain some of the bad news.

Habeas Corpus still exists in the US

In the last several weeks, judges in Vermont and Alexandria, VA, have ordered the government to free Mohsen Mahdawi, Rumeysa Ozturk, and Badar Khan Suri from custody. Their release does not end their legal fight over whether Trump can deport them for their First Amendment protected speech or not. But they will be able to continue their academic work, live at home, and make public comments while those legal proceedings go forward.

Now the horrible news.

As noted above, some of the releases were ordered by Federal judges in Vermont — William Sessions in the case of Ozturk and Geoffrey Crawford in the case of Mahdawi.

Yesterday, detained Harvard genetics researcher Kseniia Petrova had a hearing before a third Vermont judge, Chief Judge Christina Reiss. Anna Bower live-skeeted it here.

Petrova’s case differs from the others in several ways. She wasn’t detained for her First Amendment protected speech. Rather, she was detained because she didn’t declare frog samples from France she was carrying back to Harvard for her research at the border.

And while the government’s public actions to date — a quick transfer for Petrova to Louisiana in a transparent attempt to make any habeas corpus challenge more difficult — look quite similar, the legal posture was different for several reasons: a Customs and Border Patrol Officer had reportedly canceled her visa themselves upon discovering the samples (an offense that is normally let off with a warning). Petrova had agreed to leave the country, so long as she wasn’t deported to her native Russia, where she credibly expects she’d be harshly persecuted for her speech there. Because of that threat, Petrova also started applying for asylum.

But as laid out in the hearing yesterday, Petrova had always said she’d be willing to leave for France, and the government still publicly maintained they wanted to deport her to Russia.

Judge Reiss noted that she had reviewed the statute laying out the grounds for customs officers to find someone inadmissible to the United States, and “I don’t see anything about customs violations.”

Jeffrey M. Hartman, an attorney representing the Department of Justice, said “it’s the secretary of state’s authority” to cancel a visa, and that the secretary has delegated that authority to customs officials.

“The C.B.P. office was our first line of defense against unknown biological materials from a foreign national out of a port of entry,” he said.

Mr. Hartman argued that the federal court in Vermont had no jurisdiction over Ms. Petrova’s detention. He said Ms. Petrova may contest her detention, but only in an immigration court in Louisiana, where ICE is holding her.

“It’s not something that a district court can entertain,” he said. “We think the proper venue for that question is Louisiana, where she is detained and where her custodian is.”

“But she is only detained there because you moved her,” said the judge.

Judge Reiss asked the government to clarify whether or not it planned to deport Ms. Petrova to Russia.

“You are asking for her removal to Russia?” she asked.

“Yes, your honor,” Mr. Hartman replied.

Shortly after telling Judge Reiss that the government wanted to deport Petrova to Russia, DOJ instead unsealed a criminal complaint against Petrova, obtained on Monday (the first business day after Ozturk’s release), saying they actually want to prosecute Petrova for crimes that can impose up to a 20-year sentence.

Two months after detaining Petrova, as judges in Vermont free targets of Stephen Miller’s witch hunt and as problems with the unilateral revocation of her visa become clear, the government suddenly decided Petrova engaged in smuggling, without taking the time to present the case to a grand jury first.

The key paragraph of this complaint claims that Petrova prevaricated when asked about carrying biological materials and whether she knew she had to declare them, first denying she had biological material, then admitting she did.

PETROVA was asked to present herself at the secondary inspection area. She was wearing a backpack and carrying a plastic bag. When questioned about her luggage, PETROVA denied carrying any biological material. When the CBP officer asked her again, PETROVA identified the plastic bag she was carrying as having biological material. An inspection of the bag revealed a foam box containing frog embryos in microcentrifuges, as well as embryo slides. A CBP officer interviewed PETROVA under oath and conducted a manual review of her cell phone. PETROVA admitted that the items in her duffle bag and in the plastic bag were biological specimens. PETROVA was asked if she knew that she was supposed to declare biological material when entering the United States. After a long pause, she answered she was not sure. The CBP officer then confronted PETROVA with a text message on her phone from an individual who she identified as her colleague at a Boston-area medical school, where she is currently a research assistant. The individual wrote, “if you bring samples or antibody back make sure you get the permission etc. Like that link I sent to leon-/group chat about frog embryos because TSA went through my bags at customs in Boston.” When asked again whether she knew she was supposed to declare the items, she responded that she “was not sure about embryos specifically”

Even though the government maintains that they have to deport Petrova to Russia, not France, they make much of her past work in a Russian research lab, as if she’s some Russian threat, even while treating her fear of deportation as feigned.

11. PETROVA told CBP agents that she was educated in Russia and worked at the Moscow Center for Genetics as a bioinformatician of genetic disorders from 2016 to 2023. When asked if this was a Russian government institution, she replied that about half of the scientists worked for the Russian government and the other half for hospitals. She also stated that she was most recently employed by the Institute of Genetic Biology in Moscow from 2023 to 2024.

Again, on its face, this looks like the government’s bid to ratchet up its attack in the face of embarrassing setbacks in Petrova’s case. I wonder if they would have unsealed this if not for what looked like a pending loss before Judge Reiss and possibly even this powerful op-ed from Petrova, published by NYT on Tuesday, implicitly likening the plight of scientists in Russia to increasing threats in the US.

The political environment in Russia made it hard to do science because everything was unpredictable. The war in Ukraine affected scientists’ ability to get funding and materials; we worried that our male colleagues might be conscripted. That type of uncertainty is incompatible with science, which requires the ability to plan what type of experiments and research you will do a year into the future. I fear that if I return to Russia I will be arrested.

I am hesitant to comment broadly on what it’s like for scientists now in America because I have only limited information about what is going on outside of this detention center. What I do know is that my colleagues, many of whom are, like me, foreign scientists, are terrified of being detained or having their visa status revoked.

One more thing may have convinced the government to charge Petrova, though.

As pattern jury instructions on the charge lay out, to prove the case against Petrova, the government must prove that Petrova had the intent of defrauding the government.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

[snip]

Third: the defendant acted knowingly and willfully with intent to defraud the United States. [It is not necessary, however, to prove that any tax or duty was owed on the merchandise.]

[Fourth: the defendant did something which was a substantial step toward committing [crime charged], with all of you agreeing as to what constituted the substantial step. Mere preparation is not a substantial step toward committing [crime charged], rather the government must prove that the defendant, with the intent of committing [crime charged], did some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in, the commission of [crime charged].

To act with “intent to defraud” means to act with intent to deceive or cheat someone.

To prove this, the government will have to call the people with whom Petrova discussed how to address the samples at customs.

9. Another text message on PETROVA’s phone contained the following question from her medical school colleague: “What is your plan to pass the American [referred to as US in PETROVA’s interview] Customs with samples? This is the most delicate place of the trajectory.”

10. The CBP officer confronted PETROVA with another text message between her and another individual who she identified as her principal investigator in which she was asked by this individual: “what is your plan for getting through customs with samples?” To that question, PETROVA replied, “No plan yet. I won’t be able to swallow them.

That is, this will put Petrova’s lab on trial, with her colleagues either forced to testify against her or possibly implicated with it, as if there’s some great conspiracy against the United States to … do science.

DOJ unsealed this complaint on Tuesday, after Harvard expanded its lawsuit against the US, adding the retaliation Trump has taken in response to Harvard’s initial lawsuit.

7. In response to Harvard’s defense of its own constitutional freedoms, the federal Government announced that it was freezing “$2.2 billion in multiyear grants and $60M in multiyear contract value to Harvard University” (the “April 14 Freeze Order,” attached as Exhibit C). Ex. C at 2. Within hours of the April 14 Freeze Order, Harvard began receiving stop work orders. And the situation is getting worse. On April 20, it was reported that the Government is “planning to pull an additional $1 billion of [Harvard]’s funding for health research.”6 On May 5, the Secretary of Education, purporting to speak on behalf of every agency and department, announced an “end of new grants for the University,” and directed that “Harvard should no longer seek GRANTS from the federal government, since none will be provided,” and “Harvard will cease to be a publicly funded institution” (the “May 5 Letter” or “May 5 Freeze Order,” attached as Exhibit D). Ex. D at 3-4. That announcement reiterated the Government’s earlier demands and said it was based, among other things, on the Government’s assessment of Harvard’s “academic rigor,” admissions requirements and practices, grading systems, faculty hiring, teaching, and course construction. Id. at 2. The April 14 Freeze Order and May 5 Freeze Order are collectively referred to herein as the “Freeze Orders.”

8. Following in the footsteps of the April 14 and May 5 Freeze Orders, Harvard began, starting on May 6, to receive institution-wide termination notices for various agencies, invoking the earlier April 11 and 14 communications. On May 6, for example, the National Institutes of Health sent Harvard a letter stating that it was terminating all of Harvard’s grant funding from that agency based on “the University’s unwillingness to take corrective action or implement necessary reforms” and that Harvard’s grant “awards no longer effectuate agency priorities” because of “recent events at Harvard University involving antisemitic action” and “Harvard’s ongoing inaction in the face of repeated and severe harassment and targeting of Jewish students” (the “May 6 Letter” or “May 6 NIH Termination Letter,” attached as Exhibit E). Ex. E at 2-3. The letter states that “NIH generally will suspend (rather than immediately terminate) a grant and allow the recipient an opportunity to take appropriate corrective action,” but “no corrective action is possible here.” Id. at 3.

And the escalation continues. In the last week, Trump announced more cuts on funding to Harvard as well as an EEOC investigation into a faculty that underrepresents women and people of color, claiming it discriminates against people who look like Stephen Miller.

Charging Petrova for daring to commit science in the United States is undoubtedly a way to rescue a legally problematic case against her. It’s also another way to put Harvard’s defense of scholarship on trial.

Perhaps it is an auspicious sign, then, that British professors just determined that a copy of the Magna Carta that Harvard bought for $30 in 1946, thinking it was a copy made in 1327, is in fact a seventh original of the 1300 document.

British researchers have determined that a “copy” of the Magna Carta owned by the Harvard Law School Library is a rare original issued by England’s King Edward I in 1300. The copy was previously thought to date back to 1327.

The Magna Carta, issued by King John in 1215, established that the monarch is a subject under the law, just like any other citizen. It was reissued a number of times throughout the thirteenth century, and was released for the final time with the king’s seal in 1300.

Seven original charters issued by King Edward I are known to exist. Six copies are in the United Kingdom, while Harvard Law School’s Magna Carta is now the only known copy abroad.

The discovery was made by David Carpenter, a professor at King’s College London, and Nicholas Vincent, a professor at the University of East Anglia. Carpenter, a Magna Carta expert, was researching unofficial copies of the charter and suspected the Law School’s copy was actually an original. He then worked with Vincent, another Magna Carta expert, to investigate further.

The charter, an agreement between the King of England and rebel barons, gave way to the idea of a limited government and inspired the writers of the U.S. Constitution and Bill of Rights. In a joint press release between the three universities, Vincent called it “the most famous single document in the history of the world.”

All this time, an original document enshrining habeas corpus — the legal right Petrova was asserting, the legal right that got Mahdawi, Ozturk, and Suri released, the legal right Stephen Miller wants to suspend — was sitting right there in Boston, where the fight for American freedom started.

There will be multiple other developments in Stephen Miller’s deportation regime today.

SCOTUS will review whether judges can issue nationwide injunctions on matters — birthright citizenship — that necessary apply nationwide.

Hannah Dugan

Judge Hannah Dugan will be arraigned in Milwaukee on an indictment obtained Tuesday. The indictment claims, with no context, that Dugan “falsely [told the ICE team] they needed a judicial warrant to effective the arrest of [Eduardo Flores-Ruiz].” That claim goes beyond anything mentioned in the complaint and likely misrepresents the intent of Dugan’s comment. The indictment similarly provides no context for Dugan’s order directing the ICE team to go to the Chief Judge’s office, who was still working on a policy covering such issues; nor does it mention that there was no policy that Dugan violated.

The indictment also makes clear that the grand jury obtained testimony from Flores-Ruiz’ attorney, claiming that Dugan,

advis[ed] E.F.R.’s counsel that E.F.R. could appear by “Zoom” for his next court date.

But having spoken to Flores-Ruiz’ attorney, there’s still no allegation that Dugan told her that ICE was in the courthouse. This means the government lacks that kind of evidence that might substantiate corrupt intent, making it a much weaker case than the one against Judge Shelly Joseph back in 2019.

Nothing about this case has gotten stronger at the indictment stage. It still appears to lack any evidence about Dugan’s intent.

That said, the indictment is not a ham sandwich either. The government has clearly provided probable cause that a person who knew of an administrative arrest warrant made it difficult for ICE to arrest someone.

There’s no evidence that prosecutors explained why Dugan’s question about an administrative versus judicial warrant is actually exculpatory. Likewise, there’s no evidence that prosecutors told the grand jury that two DEA agents from the ICE team had the opportunity to detain Flores-Ruiz in the hallway there were staking out. And the matter of judicial immunity, which was left for an appellate phase that never happened in Joseph’s case (the Biden DOJ dismissed the case), would not have been briefed to the grand jury.

The latter detail, judicial immunity, may be litigated more aggressively than it was for Judge Joseph because of actions Trump took.

Yesterday, Dugan filed a motion to dismiss the case based on judicial immunity. The motion cited Trump’s own successful attempt to avoid any trial based on his claim of immunity three times.

The problems with this prosecution are legion, but most immediately, the government cannot prosecute Judge Dugan because she is entitled to judicial immunity for her official acts. Immunity is not a defense to the prosecution to be determined later by a jury or court; it is an absolute bar to the prosecution at the outset. See Trump v. United States, 603 U.S. 593, 630 (2024).

[snip]

Judge Dugan’s subjective motivations are irrelevant to immunity. “Judges are entitled to absolute immunity for their judicial acts, without regard to the motive with which those acts are allegedly performed.” Id.; accord Trump v. United States, 603 U.S. at 618 (“In dividing official from unofficial conduct, courts may not inquire into the President’s motives”).

[snip]

Judge Dugan therefore has both immunity from conviction and immunity from prosecution. “The essence of immunity ‘is its possessor’s entitlement not to have to answer for [her] conduct’ in court.” Trump, 603 U.S. at 630, quoting Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); Mitchell, 472 U.S. at 526 (“The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”) (emphasis in original)

This last citation adopts John Sauer’s own reliance on civil, not criminal, liability. A citation to Mitchell itself would be inapt (a criticism some people are making); but Dugan is citing the current Solicitor General’s inapt reliance on it, not the case directly. Effectively, Dugan is saying that if Trump can avoid trial for anything covered by his official duties, than so can Dugan.

Ras Baraka

Ras Baraka will also have a hearing in his prosecution for misdemeanor trespassing today. As with Dugan’s case, there’s reason to believe Trump’s public comments about the case are overblown.

To substantiate the misdemeanor trespassing charge against him, the complaint against Newark’s Mayor does not make the claims that Alina Habba made publicly, that Baraka was repeatedly asked to leave. Rather, HSI Special Agent in Charge Ricky Patel relied only on the no trespassing signs and the presence of security guards.

3. The Delaney Hall Facility is surrounded by chain-link fences and is accessible only through granted access. In addition to maintaining security, it likewise displays No Trespassing signage.

But video shows that after security guards asked Baraka to leave (after first letting him in), he did. The arrest happened on public ground, not in the facility itself. The video undermines the complaint as attested.

In advance of today’s hearing, the AUSA who presented the case on Friday was swapped out for Alina Habba herself and another AUSA, often a sign under this Administration that an attorney wasn’t telling the lies the government wants to tell.

Having made that swap, Habba tried to get today’s hearing canceled (though she couldn’t even manage to get the date right!), so they could move right to trial.

The Government writes with respect to the upcoming preliminary hearing scheduled for Thursday, May 12, 2025. The Government does not believe that a preliminary hearing is warranted in this case. Under Fed. R. Crim. P. 5.1(a), “[i]f a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless” certain conditions are satisfied. Fed. R. Crim. P. 5.1(a) (emphasis added). Here, the charge is a petty offense. Under state law, assimilated under 18 U.S.C. § 13, the statutory maximum sentence is 30 days. That means the offense is a class C misdemeanor under federal law. See 18 U.S.C. § 3559(a). That, in turn, means that it’s a “petty offense” under federal law. See 18 U.S.C. § 19. Defendant, therefore, is not entitled to a preliminary hearing under Rule 5.1. See United States v. Radin, No. 16 Cr. 528, 2017 U.S. Dist. LEXIS 77783, 2017 WL 2226595 (S.D.N.Y. May 22, 2017).

The Government requests that the Court cancel the preliminary hearing and schedule this matter for trial at an appropriate time. [my emphasis]

Magistrate Judge André Espinosa, to whom Patel didn’t disclose that Baraka left the facilities when asked, was having none of that. He granted Habba’s request to vacate a preliminary hearing as unnecessary, but in the same order, granted Baraka’s request for a status conference to be held at the previously scheduled time.

WHEREAS the United States of America (the “Government”), by way of a May 13, 2025 letter brief emailed to the Court and all counsel, now seeks cancellation of that hearing, arguing that it is not required under Federal Rule of Criminal Procedure Rule 5.1; and

WHEREAS the clear language of Rule 5.1(a) does not require a preliminary hearing when a defendant is charged with a petty offense; and

WHEREAS the offense charged in this action carries a maximum penalty of 30 days’ imprisonment, making it a Class C misdemeanor, see 18 U.S.C. § 3559(a), and constituting a “petty offense” under federal law. See 18 U.S.C. § 19; and

WHEREAS, nevertheless, by way of email correspondence to the Court, copying counsel for the Government, counsel for Defendant has sought a status conference on the same date and at the same time, if the preliminary hearing does not proceed; therefore

IT IS on this 13th day of May 2025,

ORDERED that the Court’s May 9, 2025 oral Order setting a preliminary hearing in this action for May 15, 2025, at 10:00 a.m., is VACATED; and it is further

ORDERED that the Court will hold a status conference in this action on May 15, 2025, at 10:00 a.m., in Courtroom 2D of the Martin Luther King Courthouse, in Newark, at which all counsel shall appear.

As Josh Gerstein observed, in last week’s hearing, in response to a request from Baraka, Espinosa issued a warning about public statements that violate local rules.

COME ON ALINA — In Baraka hearing, magistrate cautioned federal officials about public statements, by POLITICO’s Ry Rivard and Josh Gerstein: Before Newark Mayor Ras Baraka was released from custody on Friday, a federal magistrate quickly determined he was not a flight risk and cautioned federal officials against making out-of-court statements about the mayor, who is also running for New Jersey governor, according to a newly-released transcript of the extraordinary virtual hearing … During the 18-minute videoconference, Baraka’s attorney Raymond Brown asked [U.S. Magistrate André M.] Espinosa to warn Trump administration officials against making derogatory public statements about his client … Earlier in the day, interim U.S. Attorney for New Jersey Alina Habba had posted on social media that Baraka had “willingly chosen to disregard the law” before he was arrested at the immigration detention center he was protesting and seeking to inspect along with three members of New Jersey’s congressional delegation. Espinosa said to the extent anyone had made such comments, he would “caution them to heed carefully to the rules of professional conduct” and “boundaries of propriety for public comment related to an ongoing investigation and/or prosecution.”

So it may turn out that Trump’s Parking Garage Lawyer, who has a history of struggling with basic lawyering tasks, will get directly warned about her violation of due process even before Pam Bondi or Chad Mizelle or Kristi Noem or Kash Patel. Or maybe Habba will have to warn Noem to shut her yap after DHS continued to attack members of Congress for engaging in oversight of a facility they claim still lacks the proper local permits.

In short, basic due process remains a struggle. But there are some reasons to believe that authentic Magna Carta is an auspicious sign.

Share this entry

Some Thoughts on the Arrest of Judge Hannah Dugan

/118 Comments/in /by

On April 18, six law enforcement officers — one ICE officer, one CBP officer, two FBI agents, and two DEA agents; they were supported by an unknown number of surveillance personnel — showed up outside the courtroom of Wisconsin Judge Hannah Dugan to arrest Eduardo Flores-Ruiz.

Flores-Ruiz was charged on March 18 with three counts of domestic battery, and was due to appear for a pre-trial hearing.

Flores-Ruiz, a Mexican national, reportedly had been deported once before and one day earlier, “an authorized immigration official” had attested an administrative warrant — but not a judicial warrant — authorizing Flores-Ruiz’s arrest.

After Judge Dugan interacted with the arresting officers and, upon learning that they only had an administrative warrant and after telling them they needed a judicial warrant, she directed them to go meet with the Chief Judge (who wasn’t at the courthouse, but who spoke with the ICE officer on the phone). Then, Judge Dugan apparently adjourned Flores-Ruiz’ scheduled hearing and directed him and his attorney to leave via the jury door.

Defense counsel and Flores-Ruiz then walked toward each other and toward the public courtroom exit. The courtroom deputy then saw Judge DUGAN get up and heard Judge DUGAN say something like “Wait, come with me.”

Flores-Ruiz appears to have gone, via back hallways, to the same sixth floor public hallway via which he had entered the court room. According the complaint, both DEA officers saw Flores-Ruiz in the public hallway before he entered the elevator.

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 Flores-Ruiz and his counsel walk briskly towards the elevator bank on the south end of the sixth floor.

Rather than arresting Flores-Ruiz, whom the officers knew was unarmed, there on the sixth floor, one of them rode down the elevator with him and his attorney and the other alerted the other officers. Four of them convened outside of the courthouse and chased him down the street and arrested him, just 22 minutes after he entered Judge Dugan’s courtroom at 8:43.

Having received the above-referenced information from DEA Agent A, other members of the arrest team scrambled to locate Flores-Ruiz and arrest him. DEA Agent B and FBI Agents A and B took another elevator down to one of the bottom floors of the courthouse and quickly exited the building onto 9th Street. After DEA Agent A notified the team that Flores-Ruiz was in the front of the courthouse near the flagpole, the agents ran towards the front of the courthouse. FBI Agent B and DEA Agent A approached Flores-Ruiz and identified themselves as law enforcement. Flores-Ruiz turned around and sprinted down the street. A foot chase ensued. The agents pursued Flores-Ruiz for the entire length of the courthouse and ultimately apprehended him near the intersection of W. State Street and 10th Street. Flores-Ruiz was handcuffed and detained. Around 9:05 a.m., or approximately 22 minutes after the arrest team first spotted FloresRuiz on the sixth floor of the courthouse, FBI Agent A communicated to the surveillance team that Flores-Ruiz had been arrested.

In a criminal complaint, the government charged Judge Dugan with 18 USC 1505, obstruction of a proceeding, and 18 USC 1071, concealing a person from arrest. [docket] The FBI arrested Judge Dugan at the courthouse on Friday amid a deliberate media frenzy, up to and including the FBI Director posting a picture of Judge Dugan’s arrest in violation of DOJ guidelines designed to prevent prejudice.

DOJ personnel should not encourage or assist news media in photographing or televising a person held in custody. 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.

Both Pam Bondi and Stephen Miller also made comments that arguably violate rules prohibiting comments that prejudice a proceeding (remember that Judge Dale Ho already found that Pam Bondi’s public comments about the Eric Adams case likely violated local rules).

The arrest has rightly been viewed as an attempt, at a time when Trump and his minions are already making wildly inappropriate attacks on judges, to bully the judiciary.

The criminal charges

There has been a lot of blather about the strength or weakness of the criminal charges. Much of that is, in my opinion, premature, and premature precisely because FBI chose to arrest Dugan on a criminal complaint.

The elements of offense for 18 USC 1505 require the government prove:

  • Existence of an Investigative Proceeding: There is, or was, an ongoing proceeding, inquiry, or investigation before a federal department, agency, or any committee of Congress.
  • Defendant’s Knowledge: You were aware of the pending proceeding.
  • Obstructive Action: You engaged in one or more of the obstructive actions outlined in the statute, such as withholding or falsifying documents or using threats or force and
  • Corrupt Intent: You did so with corrupt intent, meaning the actions were taken with a wrongful purpose to disrupt, impede, or influence the proceeding. This ‘corrupt intent’ refers to a deliberate and dishonest motive to interfere with the investigation or proceeding rather than a legitimate or lawful purpose.

The elements of offense for 18 USC 1071 require the government prove:

  • a federal warrant had been issued for the person’s arrest;
  • the person concealing them knew that a warrant was issued;
  • the person actually concealed the fugitive from law enforcement;
  • the person acted with intent to prevent fugitive’s discovery or arrest.

For obstruction, it will be contested whether an immigration removal counts as an investigative proceeding. For concealment, it will be contested whether the administrative warrant qualifies, and whether directing Flores-Ruiz via a back hallway to the very same public hallway where the officers had planned to arrest him and had a chance to arrest him amounts to concealment.

Both charges will pivot on Judge Dugan’s intent: whether she had corrupt intent and the intent of helping him evade arrest entirely, or whether she wanted to protect the sanctity of her own courtroom.

Key to her intent is her belief, which she made clear to the officers, that they needed a judicial warrant.

Judge DUGAN asked if Deportation Officer A had a judicial warrant, and Deportation Officer A responded, “No, I have an administrative warrant.” Judge DUGAN stated that Deportation Officer A needed a judicial warrant. Deportation Officer A told Judge DUGAN that Deportation Officer A was in a public space and had a valid immigration warrant. Judge DUGAN asked to see the administrative warrant and Deportation Officer A offered to show it to her. Judge DUGAN then demanded that Deportation Officer A speak with the Chief Judge. Judge DUGAN then had a similar interaction with FBI Agent B and CBP Officer A. After finding out that they were not present for a court appearance and that they were with ICE, Judge DUGAN ordered them to report to the Chief Judge’s office.

Administrative warrants don’t mandate assistance.

It may also matter that, by description, she didn’t actually look at the administrative warrant, because it might matter if she knew whether Flores-Ruiz had been deported before. In a report published before the arrest, Dugan is quoted as stating that “a warrant was not presented in the hallway on the 6th floor,” and by description, she was not shown one.

Thus far, the complaint seems to want to suggest that Dugan had corrupt intent because she was angry.

DUGAN became visibly angry, commented that the situation was “absurd,” left the bench

Witnesses uniformly reported that Judge DUGAN was visibly upset and had a confrontational, angry demeanor.

Judge DUGAN appeared visibly angry and was walking quickly

But judges get angry for lots of reasons, including that someone showed up outside her courtroom to surprise someone with business in it.

The affidavit also makes much of the fact that, after exiting the non-public hallway, Flores-Ruiz and his attorney walked to the elevators furthest away from Judge Dugan’s courtroom.

I am familiar with the layout of the 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.

It’s entirely unclear why this would be suspicious in any case, because the affidavit suggests that Dugan thought all the officers were in the Chief Judge’s chambers; walking to the further elevators increased the chance they’d encounter the officers in the hallway. But as the Chair of the WI Election Commission Ann Jacobs noted in a long thread, there’s a completely innocent explanation for this: that Flores-Ruiz and his attorney were headed to the street, not the parking garage.

Here’s why this is absurd – there are 2 banks of elevators in the courthouse: 1 goes to the ground floor, and 1 goes to the 9th street exit which is where the parking structure is. In fact, there are even SIGNS telling you which bank of elevator goes where.

So – yes – you sometimes walk past one set of elevators so you can get where you want to go. If you are not going to the parking structure (which most people are), you take the other set of elevators because they are less crowded.

Suspicious? No – literally something hundreds of people do daily in the courthouse. This attempt to make it into something is just dumb (especially since they claim to be familiar with the elevators – clearly not).

The biggest problem with these charges is that, by charging this via criminal complaint rather than grand jury, the government has not probed several issues relating to intent before charging Judge Dugan.

The witnesses cited in the complaint include the six officers, Dugan’s courtroom deputy, two other lawyers present in the courtroom that day (an Assistant DA and a different defendant’s attorney), a Victim Specialist working with Flores-Ruiz’ alleged victims, along with the FBI officer affiant.

The most incriminating thing in the affidavit comes from the deputy.

These events were also unusual for two reasons. First, the courtroom deputy had previously heard Judge DUGAN direct people not to sit in the jury box because it was exclusively for the jury’s use. Second, according to the courtroom deputy, only deputies, juries, court staff, and in-custody defendants being escorted by deputies used the back jury door. Defense attorneys and defendants who were not in custody never used the jury door.

The deputy was clearly quite concerned about being implicated and actually alerted the officers that Judge Dugan was “pushing” Flores-Ruiz’ case.

Judge DUGAN’s courtroom deputy then approached the remaining arrest team members and stated that the courtroom deputy was not the one who had notified Judge DUGAN about their arrest plans.  The courtroom deputy also made a comment about Judge DUGAN “pushing” Flores-Ruiz’s case through, which the arrest team interpreted to mean that Judge DUGAN was attempting to expedite Flores-Ruiz’s hearing.

The officers seem to have misinterpreted the comment; rather than expediting the hearing, it appears Judge Dugan instead adjourned the hearing.

But there are several key witnesses that have not been interviewed (or if they have, their testimony is not mentioned in the complaint): It appears the FBI didn’t ask Flores-Ruiz’ attorney and Flores-Ruiz himself about whether Judge Dugan alerted them that ICE was there to arrest him (and some of their behavior is inconsistent with having any warning). They don’t even know whether Flores-Ruiz’ attorney drove to the courthouse; if not, she would know well to take the elevator that went to street level.

Nor does the affidavit note any interview with the Chief Judge. His testimony would be critical for several reasons. First, the complaint describes that the Chief Judge told the ICE officer he was working on a policy about ICE presence in the courthouse but had not yet completed it.

During their conversation, the Chief Judge stated he was working on a policy which would dictate locations within the courthouse where ICE could safely conduct enforcement actions. The Chief Judge emphasized that such actions should not take place in courtrooms or other private locations within the building. Deportation Officer A asked about whether enforcement actions could take place in the hallway. The Chief Judge indicated that hallways are public areas. When the Chief Judge expressed interest in talking to ICE ERO management about this policy, Deportation Officer A provided him with contact information for ICE ERO’s Assistant Field Office Director.

If the Chief Judge had not yet crafted a policy, then the government can’t cite it regarding what Judge Dugan should have done, and indeed her instruction to go to his office may have been consistent with the unsettled policy. There’s another judge who interacted with the officers who may also attest to the uncertainty about what to do in this situation.

That the Chief Judge had not yet spoken to ICE is important because the affiant includes a limitation ICE had adopted on their own arrests: to target defendants but not witnesses.

the Milwaukee ICE ERO Task Force was focusing its resources on apprehending charged defendants making appearances in criminal cases – and not arresting victims, witnesses, or individuals appearing for matters in family or civil court.

But if the Chief Judge had not yet spoken to ICE, then neither he nor Dugan could be expected to know that. Judges have very well-founded concerns about the way ICE arrests at courthouses can chill access to justice for everyone (including defendants); but the concern about witnesses and victims is particularly acute.

And while the Chief Judge told the ICE officer that they could make arrests in hallways, there’s no evidence in the record that the Chief Judge had told Judge Dugan that. He certainly didn’t tell her that after the conversation as described. He couldn’t have! That’s because the ICE officer was still on the phone with the Chief Judge when the other officers arrested Flores-Ruiz.

Deportation Officer A and CBP Officer A were notified that Flores-Ruiz was in custody while they were still inside the courthouse speaking with the Chief Judge on the phone.

There are reasons why DOJ shouldn’t involve the other judges in this case. But both the Chief Judge and the other one involved that day may provide exculpatory evidence about Judge Dugan’s actions and intent.

Without more, Judge Dugan has a number of strong defenses to these charges. DOJ might one day get more incriminating evidence about Dugan’s intent, but they present zero real evidence of it here and her comment about the administrative warrant is exculpatory.

Trump picks up where he left off

This is not, as many people claimed, unprecedented. In fact, there’s a very clear precedent: MA state judge Shelly Joseph, who was indicted, along with her Deputy, in 2019 for allegedly helping a defendant escape ICE arrest by conspiring with her Deputy and the migrant’s defense attorney to let him out the back of the courthouse via a holding cell. [docket] Adam Klasfeld also wrote about this precedent at his new site.

There are number of key differences though, at least thus far.

The most important differences are that Judge Joseph allegedly helped the migrant before her to leave the courthouse, via non-public doorway, entirely; she allegedly turned off the courtroom recording during which the defense attorney asked for help (which was presented as evidence of corrupt intent) and her deputy allegedly lied to the grand jury; the defendant evaded arrest entirely. That was charged as a conspiracy after getting the defense attorney to testify, with immunity, against the judge.

Update: I should add a big difference between Joseph and Dugan. In the former case, the government investigated for a year — from April 2018 to April 2019 — before they charged Joseph and her deputy (during which time they flipped the defense attorney whose idea this was). In this case, FBI investigated for a week.

That is, while Judge Joseph had a number of strong defenses (and contested some of the claims laid out in the indictment), the case against her included allegations that got to corrupt intent that do not — yet, anyway — exist in the case against Judge Dugan.

The precedent matters for legal reasons. A number of the issues that would be argued here — such as any immunity due to Judge Joseph, or the applicability of 18 USC 1505 to an immigration arrest — were not resolved and likely would not be here, before trial and appeal.

But the most important precedent is the way in which the first Trump Administration — including then Acting ICE Director Tom Homan and current Acting ICE Director Todd Lyons — wanted to use Joseph’s case to intimidate judges and foster a big media frenzy. Joseph’s case was dismissed in 2022 after she used some FOIAed documents to show the media frenzy the White House deliberated stoked and asked (for the third time) for full discovery on it, including on how Lyons’ incessant media appearances affected the ICE officers involved in the case.

But even before she got that FOIAed evidence, she argued that Lyons’ incessant attacks on judges biased ICE in this matter.

That is, the campaign against judges — Tom Homan’s campaign, Todd Lyons’ campaign (including his recent comment where he said he wanted to make deportations work like Amazon Prime), a White House occupied by Stephen Miller’s campaign — are already a matter of judicial record. And this time around, DOJ didn’t even bother convening a grand jury to find out whether there’s any evidence that Judge Dugan had corrupt intent before arresting her at the courthouse and ginning up an even bigger media storm about it.

Maybe they’ll find it as they move to indict her. Or maybe this case will blow up in spectacular fashion.

But until they actually look for evidence of corrupt intent, this is a media campaign against the judiciary, not a criminal prosecution.

Indeed, the media campaign — the comments from top Trump officials, some that don’t even reflect the official record — may have already tainted the prosecution. The media campaign is bound to be a central matter as Dugan mounts a defense.

The fight for rule of law

The fact that so few people know of the case against Judge Joseph is telling. Many just pointed to the arrest and proclaimed that Trump had achieved some new level of abuse.

Like so much else, including his use of the legal system to attack his adversaries, there’s little truly new here.

He did all this in the first term and yet neither the Biden or Harris campaigns nor millions of others opposing Trump made this or his past abuses a sustained focus of an anti-Trump campaign, not even in the context of his attacks on judges presiding over cases against him. As I’ve argued, Trump’s platform — the way he convinced a bunch of disaffected people to vote for him — was to claim he was a victim of an unfair legal system, rather than someone duly prosecuted under it, rather than the guy who weaponized it to get electoral advantage.

In the wake of Dugan’s arrest, by contrast, many people did far more than staring, stupefied, at Trump’s latest abuse. Many officials, both local and national Democrats, have issued statements condemning at least the manner of the arrest. Most contextualized this arrest with mention of Trump (and Stephen Miller’s) direct attacks on and defiance of judges, up to and including the Trump-packed Supreme Court. Hundreds of people protested outside the federal courthouse.

Something has happened, somewhat unmentioned, since Trump opponents have started to speak out against Trump’s abusive immigration policies. In the process of defending people like Kilmar Abrego Garcia, who as some noxious Democratic operative sniffed is not a “poster child” for due process, Trump’s opponents have more aggressively defended just that: due process, independent courts, and rule of law.

If Abrego Garcia can be sent to Nayib Bukele’s concentration camp in error, anyone can. If a US citizen toddler can be deported even as one of the Trumpiest judges fights to give her due process, Trump’s deportation campaign has illustrated the import of independent judges testing his transparently false claims.

It may be that defending the import of rule of law has helped to reverse the popularity of Trump’s deportation campaign.

Whether it is or not though, the opposition to Trump has started defending rule of law as such, above and beyond the more charismatic targets of it. It has started defending the rule of law as an important protection for all citizens.

I hope to return to this, particularly as people entertain approaches — to think in terms of indictments for Trump — that failed over and over again in the past. I strongly believe that what needs to happen — what didn’t happen, when Trump was busy undermining the legitimacy of the cases against him during the Biden Administration — is to promote the import of rule of law as such.

As real mobilization happens in response to Trump’s attacks on rule of law, let’s keep in mind that that is something worth defending in its own right.

Update: Now ICE is threatening to charge two people who asked three officers in plainclothes (one wearing a balaclava) to show a warrant. The complaint against Judge Dugin makes much of the fact that the six officers were in plainclothes, as if that helps.

The agents were generally dressed in plain clothes and intended to effectuate the arrest in as low-key and safe of a manner as possible.

Update: James Pearce, who up until January was Jack Smith’s appellate guy, reviews the case and like me says it is premature to weigh the strength of the case, though he is far more sympathetic to the prosecutors’ case. He does not consider whether Pam Bondi et al‘s behavior will endanger it. He also notes (and he may know this first hand) that the Joseph case was dismissed for reasons other than the strength of the case.

Share this entry