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Notes -
The FBI this morning arrested a Wisconsin state judge on charges of concealing an illegal alien from arrest.
The initial criminal complaint is here. For those of you who prefer to watch TV instead of read, here is attorney general Pam Bondi giving the details on Fox News. The accusation is that upon seeing federal agents waiting outside her courtroom to serve an administrative warrent for the arrest of Eduardo Flores-Ruiz (who is an illegal alien currently being charged with battery), Judge Hannah Dugan escorted Flores-Ruiz out of the courtroom through the jury door so that he could evade arrest.
For all of the "Kash Patel Arrests Judge" headlines I saw this morning, this seems totally fine? It looks like an open and shut case if the facts alleged in the complaint are true. It sounds like there ought to be plenty of witnesses (it literally took place in a courthouse). State-law judges don't have jurisdiction over federal agents executing federal functions. An illegal alien in court for an unrelated violent crime is an incredibly unsympathetic defendant. All of the smarter left-leaning commentators I follow seem to be keeping quiet on this, which seems smart.
Not really. There are two issues here one legal and one practical. As far as legal arguments go, the problems is that it isn't clear if what she did was actually illegal. She was charged with violating §1505 (Obstructing an Official Proceeding) and §1071 (Concealing and individual to prevent discovery or arrest). The Obstructing part is problematic because what the judge did doesn't fit into anything that's actually described under the obstruction statutes. chapter 73 of the US Criminal Code has 21 sections, and while §1505 doesn't specifically define obstruction, the sections that do make references to things like destroying documents, intimidating witnesses, bribery, and suborning perjury. Nowhere does it mention helping someone avoid apprehension by Federal agents. You can make the argument that a plain reading of the statutory language suggests that it would cover this, but the Supreme Court explicitly rejected such and argument in Fischer, saying that the context of §1512 made it clear that the statute only applied to the destruction of documents. In any event, I couldn't find any examples of §1505 being used this way before. I'm not saying this isn't going to work, but it certainly isn't open and shut.
Prosecuting under §1071 is even more of an uphill battle. Everything I could find suggests that it only applies to criminal warrants, such as the diffeing penalties for whether the concealed person is being charged with a felony or a misdemeanor. Immigration proceedings aren't criminal proceedings, though, but administrative proceedings. Again, I couldn't find any evidence of §1071 being used for an administrative proceeding.
From a practical perspective, ICE fucked up by attempting to detain the guy before his case was resolved. Typically, when a Mexican national commits a violent crime in the United States and then flees to Mexico, we don't leave it at that; we specifically request that the Mexican government extradite him for prosecution here. If he gets deported this is just the administration facilitating his escape. It may not be what he wants, personally, but even for minor crimes, the normal course of business for a criminal defendant in custody awaiting deportation is for the attorneys to request he be released from ICE custody pending the resolution of the case. This is true even for minor offenses like drunk driving, where the defendant is typically out on bail.
So even if this guy is out on bail on domestic battery charges, deporting him to Mexico makes his case impossible to prosecute, and even if ICE is willing to allow him to return for court appearances, it's impossible for the court to monitor his compliance with bail conditions, and he has little incentive to return to the US for criminal prosecution. The ideal situation, from a criminal justice perspective, is to allow him to stay in Wisconsin until his case is either dismissed or his sentence complete, and then begin deportation proceedings. By deporting him now, you only get half a loaf.
After the January 6 charges, there can't possibly be any limits on "obstructing an official proceeding".
Well, the Supreme Court ruled that there are. If the court had ruled differently, we could have that discussion, but they didn't so here we are.
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