Indicted Judge’s Case Pushes Immunity and Federal Power Limits

The rare prosecution of a sitting judge is teeing up a legal fight over her immunity from criminal charges, and whether the same protections President Donald Trump claimed might apply to judges.

Judges have expansive immunity from civil lawsuits over their official acts in court, but have been successfully prosecuted when their conduct crosses criminal lines.

Now Milwaukee Judge Hannah Dugan is relying on this theory—and the US Supreme Court’s recent expansion of criminal immunity for Trump—to argue that, like the president, judges can’t be prosecuted for actions they take in their courtrooms.

Legal experts say Dugan faces an uphill battle in arguing immunity from federal obstruction and concealment charges that she ushered a migrant out of her courtroom so that he could avoid immigration officers.

Trump critics say her defense tests limits placed on federal authorities seeking to check judges who’ve been repeatedly ruling against the Trump administration on immigration and other matters.

“The whole reason that we have judicial immunity is to ensure that we have judicial independence,” said Rebecca Roiphe, a professor at New York Law School. “The idea that you might be afraid of what the executive would do would obviously kill the judicial branch that is there to hold executive officials to account. Because of that, you can imagine that prosecutors who are thinking about their role and their duty to do justice might stay away from these sorts of cases unless there’s clearly abusive conduct, criminal conduct.”

Charges over an issue of federal policy—immigration—complicate matters further, said Robert Yablon, co-director of the State Democracy Research Initiative at the University of Wisconsin Law School.

Dugan has “an immunity argument intertwined with federalism arguments,” he said. “They’re trying to say, ‘when you have a state judge exercising the sovereignty of the state, especially in the courtroom, presumptively those acts should not be subject to the federal criminal prosecution.’”

Attorney General Pam Bondi has backed the prosecution, saying “no one is above the law.”

Sex, Bribes and Corruption

The US court system adopted the doctrine of judicial immunity, which dates to medieval England. But even if Dugan could claim her actions were official acts of a judge,it’s unsettled “that there is any criminal immunity for prosecution for judges,” said James Pearce, a former Justice Department prosecutor.

Though rare, judges are prosecuted for actions taken in their roles. That includes cases over judges seeking sex in exchange for rulings or accepting bribes to influence outcomes.

The Supreme Court has also tackled the issue, obliquely. The justices refused to dismiss a criminal case brought against a Virginia judge who refused to seat Black jurors in direct violation of federal law passed to enforce the Civil War amendments to the US Constitution.

However, experts point out that in that 1880 decision, the court didn’t squarely address whether criminal immunity exists. Instead, the justices said that since other local officials—including sheriffs or town criers—had also historically seated jurors then picking them wasn’t an explicitly judicial act that could be given immunity.

Roughly 140 years later and appeals courts are still skeptical of the theory. The US Court of Appeals for the First Circuit denied a speedy appeal when a trial court rejected a Massachusetts judge’s criminal immunity argument in a similar obstruction of immigration officials during the first Trump administration.

The district court pointed to prosecutors alleging that the judge had acted “corruptly” in the indictment. Corruption is one of the few areas where it’s agreed there’s no immunity, and the district court said that because of this factual dispute, he couldn’t dismiss the charges.

“Whether it is, in fact, corrupt conduct or not, the fact that it’s been alleged basically takes the wind out of the sails for any immunity claims,” Pearce said of Dugan’s case.

James Sample, a law professor at Hofstra University, said it makes sense for Dugan to raise immunity claims. If she got a ruling in her favor at this stage, she could avoid the fact-finding process in the case, he said.

Even if she loses on the immunity arguments at first, Dugan could raise them again after the facts of what happened have been settled, Sample said.

Trump Offensive, Defensive

To bolster its defense, Dugan’s team is leaning on the Supreme Court’s 2024 decision in Trump v. United States. The ruling short-circuited federal criminal prosecution over the then ex-president’s actions during the Jan. 6, 2021, Capitol riot, and ruled that he had broad criminal immunity for official acts.

“If the Supreme Court has previously said judicial immunity applies to civil suits, and in Trump v. United States the court says if civil immunity exists then criminal immunity must exist, it seems like the court is implicitly backtracking on its prior case law,” said Trace M. Maddox, a New York University Law professor and immunity researcher.

Dugan also invoked the separate spheres of authority for federal and state officials. These issues of federalism—and the concept that the federal government can’t commandeer state officials for federal actions—"supercharges the defense,” Maddox said.

Other experts raised concerns about the case being brought in the first place.

In the past, federal prosecutors sought review from “very high level” Justice Department officials for indictments of judges, and if there were concerns line prosecutors would be told to drop the case, said retired Federal Circuit Judge Paul R. Michel. He’s a member of Keep Our Republic’s Article Three Coalition, a group of former judges aimed at defending democracy by educating the public about the courts.

“Could this sort of case against the sitting judge for something somehow connected to their judicial duties have a chilling effect on other judges the interests? Of course it could, and that’s a serious concern that responsible officials and onlookers should all be concerned about,” he said.