The Milwaukee County Courthouse (Photo by Isiah Holmes/Wisconsin Examiner)

Attorneys for Milwaukee County Judge Hannah Dugan filed a motion to dismiss the federal charges against her on Wednesday, arguing the government can’t charge her because she has judicial immunity. 

“This is no ordinary criminal case, and Dugan is no ordinary criminal defendant,” the motion states. “Dugan is a Milwaukee County Circuit Court judge. She was arrested and indicted for actions allegedly taken in and in the immediate vicinity of her courtroom, involving a person appearing before her as a party. The government’s prosecution of Judge Dugan is virtually unprecedented and entirely unconstitutional — it violates the Tenth Amendment and fundamental principles of federalism and comity reflected in that amendment and in the very structure of the United States Constitution.” 

The motion states that the problems with the prosecution “are legion,” and begin with her judicial immunity, which prevents judges from being charged with crimes for their official acts. Immunity is not a defense to be used at trial but “is an absolute bar to the prosecution at the outset,” the motion states, citing the U.S. Supreme Court’s decision in Trump v. United States that found the president can’t be charged with crimes for official acts. 

Dugan has been accused by federal officials of helping an immigrant without legal status in the U.S. escape from federal agents waiting to arrest him outside her courtroom last month. The criminal complaint alleges she directed the man, Eduardo Flores-Ruiz, who came to her court for a routine hearing in a misdemeanor case, out a side door to avoid federal agents waiting to arrest him with an administrative warrant. Flores-Ruiz and his lawyer exited the courtroom into the same hallway where the agents were waiting and a DEA agent rode down the elevator with him before he was arrested on the street. 

Trump administration officials have touted the case as an example of a stern federal response to “deranged” judges across the country working to stymie the president’s efforts to increase immigration enforcement. 

Dugan’s motion states the facts alleged in the indictment and criminal complaint against her would be disproven at trial, but that the case should never get that far. 

“Even if (contrary to what the trial evidence would show) Judge Dugan took the actions the complaint alleges, these plainly were judicial acts for which she has absolute immunity from criminal prosecution,” the motion states. “Judges are empowered to maintain control over their courtrooms specifically and the courthouse generally.” 

Dugan’s attorneys also argue that the prosecution violates the Tenth Amendment, which clarifies the balance of power between states and the federal government. The motion states that federal agents going into a state courthouse to arrest a sitting judge is a violation of the Constitution. 

“The government’s prosecution here reaches directly into a state courthouse, disrupting active proceedings, and interferes with the official duties of an elected judge,” the motion states. “The federal government violated Wisconsin’s sovereignty on April 18 when it disrupted Judge Dugan’s courtroom, and it is violating Wisconsin’s sovereignty now with this prosecution. The Court should end the violation of Wisconsin’s sovereignty and dismiss the indictment.” 

Dugan is scheduled to appear in court for her arraignment Thursday morning.