Did Minnesota judges violate ethics rules by speaking about the immigration wave?

On Wednesday, Attorney General Todd Blanche, accompanied by Homeland Security Secretary Markwayne Mullin and Minnesota U.S. Attorney Daniel Rosen, announced the indictment of several non-citizens for voting-related crimes.

But the headline came from Blanche’s second announcement: The Justice Department had filed a complaint of judicial misconduct against former Chief Justice Patrick Schiltz, Judge John Tunheim and several “unnamed judges.” This all stems from their participation in a September 17 New York Times article about the effect of Trump’s immigration enforcement agenda on their court, their perception that the administration was not complying with their orders, and the importance of the rule of law.

According to the DOJ, the judges’ interviews with the Times violate at least two federal rules of judicial conduct, known as canons, which require judges to “act in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and avoid “public comment on the merits of a pending or impending court case.”

The judges’ remarks, the DOJ continued, not only suggest bias against the Department of Homeland Security, but also came at a time when Minnesota district judges’ decisions to release immigrant detainees are under appeal. Notably, the inmate in a case decided by Tunheim is now asking the Supreme Court to review his case.

Complaints of federal judicial misconduct, which cannot be anonymous, are made to the chief judge of the appropriate federal court of appeals. After review, the chief justice has options ranging from dismissing the complaint outright to referring it to a special committee for investigation and report. And the judge involved can also request a more in-depth review. But while decisions must be made public, the review of any complaints – and the arguments behind them – are not. The very existence of a complaint should not be disclosed unless “necessary or appropriate to maintain public confidence in the ability of the judiciary to remedy misconduct or disability.”

MS NOW does not know if any of the judges involved in the recent DOJ complaint have responded to its allegations.

There is no indication that the judges who spoke to the Times did so impulsively. To the contrary, Schiltz said in a public statement Wednesday that he had consulted recent guidelines issued by the Federal Judicial Conference, the organizing body for federal judges, which allow judges to speak and write “on fundamental judicial issues such as defending the rule of law and judicial independence.”

Another judge, Nancy Brasel, appeared to reference the same guidelines in the Times article in question: “We are allowed to speak openly about judicial independence. And so we should, in order to preserve it.”

Brasel, like the current chief justice, Eric Tostrud, also cited by name in the article, was appointed by a Republican president: Donald Trump.

The fact that six of the seven then-serving federal district court judges in Minnesota spoke together to the Times also suggests their collective panic over the state of the rule of law and the strain on their relatively small district, where, inundated with new applications from immigrant detainees, the clerk’s staff began working seven days a week, 16 hours a day without overtime pay, according to the article..

But that doesn’t mean the DOJ will prevail. An accusation of judicial misconduct by the DOJ itself not only threatens to silence judges who speak out about the department or other agencies’ disregard for court orders and judicial authority, but it is also troubling on other levels.

First, it’s part of a growing – and not particularly successful – trend.

Last year, a former DOJ official filed a judicial misconduct complaint against Chief Judge James Boasberg of the District of Columbia, who angered the administration by ruling against it in high-profile immigration cases and opening a contempt investigation into who within the administration authorized two flights carrying suspected Venezuelan gang members to El Salvador’s notorious CECOT prison. (An appeals court has put that investigation on hold for now.)

The complaint itself, however, was based on comments Boasberg allegedly made at a Judicial Conference meeting, and was dismissed last year on the grounds that the evidence was too thin and that even if true, it reflected that Boasberg had expressed other people’s concerns about future administration noncompliance, not his own.