The Justice Department filed a misconduct complaint Wednesday asking that federal judges in Minnesota be barred from hearing any more immigration cases after most of them participated in a press interview where they complained about President Trump’s policies and compared them to China or North Korea.
DOJ leaders said the New York Times article, which reported speaking to seven judges, showed the judges have an animosity toward the Homeland Security Department, undermining the impartiality of the federal court in Minnesota.
In the article, the judges questioned the wisdom of DHS’s arrests and said DOJ was incompetent in handling the tsunami of legal cases that flowed from the immigration enforcement surge in the Minneapolis area earlier this year.
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“These judges should be ordered to recuse from any matters involving DHS because the public reasonably questions their impartiality in cases involving immigration,” Mr. McCotter and Associate Attorney General Stanley Woodward said in their formal complaint.
They also asked for an investigation into the judges themselves for putting a desire for publicity above their judicial duties.
The complaint was filed with the 8th U.S. Circuit Court of Appeals, which oversees the state and its judges.
Rebeccah Parks, a spokeswoman for the district judges, said in a statement that the comments for the article were “well within the ethical rules.”
She said the Committee on Codes of Conduct has specifically said judges may comment on “core judiciary matters,” and that includes rule of law and judicial independence.
“Our judges acted within this capacity,” she said.
Filing the complaint marks an escalation on the part of the Justice Department in a battle that’s lasted most of this year.
Minnesota’s federal judges were particularly harsh in rulings against the Trump administration amid the surge, ordering the release of migrants who’d been arrested and delivering judicial spankings when the government didn’t move quickly to comply.
Judge Patrick J. Schiltz, in one ruling, said it was “beyond the pale” that the administration surged Homeland Security personnel to make arrests but didn’t prepare the U.S. attorney’s office to handle the tsunami of litigation that resulted. Judge Schiltz, a George W. Bush appointee, was chief judge of the court at the time, though he has since relinquished that post.
Judge Schiltz was the main voice in the article that prompted the new ethics complaint, sitting for a 90-minute interview with a reporter.
He told the newspaper the administration had a “disregard” for court orders which helped fuel tensions in the city as unruly protesters clashed with aggressive DHS agents. He called the administration’s actions “a grave threat to the rule of law.”
Judge John Tunheim, a Clinton appointee, also allowed himself to be quoted by name. He questioned the types of people being arrested, echoing complaints of immigrant rights activists that DHS agents “weren’t arresting, in my view, people who were dangerous criminals on the streets.”
The article said other judges also spoke but did so on condition of not being named.
Mr. McCotter said Minnesota’s judges are bound by rules urging them not to speak to the press, even to give “seemingly innocuous statements.” The 8th Circuit has said judges “must be above the fray, not become an advocate in it.”
The federal district court has seven slots, six of which are filled. Judge Schiltz had occupied the seventh until he took senior status this summer.
Of the six active regular judges, two were appointed by Mr. Trump and four by President Biden.
Sen. Chuck Grassley, chairman of the Judiciary Committee, has asked Chief Justice John G. Roberts Jr. to get involved in the Minnesota judges’ situation as well.
After similar criticism from federal judges last year, the Judicial Conference, the governing body for federal judges that’s headed by the chief justice, issued an opinion urging federal jurists to be more circumspect in talking to the press.
The opinion said judges can still speak on issues of history and operation of courts but must be wary of their “tone, context and form.” Immigration was not one of the areas listed as acceptable for judges to speak on.
“Federal judges should be issuing opinions and orders in accordance with the law, not giving quotes based on their personal views to The New York Times,” Mr. Grassley said. “I hope the chief justice addresses this issue.”
The new DOJ complaint is part of an intense tug-of-war between the Trump administration and the broader community of federal judges who have blocked the president from carrying out his plans, particularly on immigration.
The Justice Department filed a misconduct complaint against Judge James Boasberg, the chief judge in Washington, after he was reported to have suggested in a conference of judges that he feared Mr. Trump would defy the courts. He later initiated contempt proceedings against the Trump administration, citing violations of court orders.
That complaint was dismissed by an appeals court that said it wasn’t proved that Judge Boasberg made the comments and even if he did, they were within his purview to talk, privately, about judicial independence and relations with other branches of government.
DOJ lawyers have also sought to boot federal judges from cases in Georgia, the District of Columbia and Washington state.
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