174 former judges defend Minnesota's federal bench against DOJ ethics complaint
Published in News & Features
MINNEAPOLIS — A group of 174 former federal and state judges is urging the dismissal of the Justice Department’s judicial misconduct complaint against Minnesota federal judges, which alleges their remarks to the media violated ethical rules.
The group of ex-judges from across the United States described the Justice Department’s complaint against U.S. District Judges John Tunheim and Patrick Schiltz as baseless, arguing the pair did not engage in misconduct by speaking to the New York Times about the government’s widespread noncompliance in immigration court orders during Operation Metro Surge.
“Instead of dealing with the government’s defiance of judicial orders, the government filed disciplinary charges against the Minnesota judges who lawfully called out their misconduct,” said Nancy Gertner, former United States district judge for the District of Massachusetts.
The Justice Department last month filed the complaint against Schiltz, Tunheim and other unnamed federal judges in Minnesota after the article published, alleging that the judges made political statements and publicly commented on pending cases in violation of judicial ethics.
In the article, Schlitz, a George W. Bush appointee, described how the immigration enforcement operation strained the courts and led to the federal government disregarding numerous court orders, which posed a “grave threat to the rule of law.”
Tunheim, appointed by former President Bill Clinton, disputed the Trump administration’s claim that immigration agents were arresting the “worst of the worst” people during the surge.
The bench has denied acting outside the ethical rules for judges, pointing to an opinion from the Committee on Codes of Conduct that allows federal judges to “‘speak and write’ about core judiciary matters such as advocacy for the rule of law and judicial independence.”
The Justice Department demanded that the U.S. Court of Appeals for the Eighth Circuit investigate the judges’ conduct and that those who spoke to the New York Times recuse themselves from cases involving the Department of Homeland Security. Last week, the Justice Department moved to oust Tunheim and Schiltz from presiding over a pair of cases regarding citizenship and illegal voting, challenging their impartiality in the matters.
In a letter to Steven Colloton, the chief judge of the U.S. Court of Appeals for the Eighth Circuit, the former judges rejected the claim that the remarks by Schiltz and Tunheim were political. The group argued broadly that a judge’s comments about the U.S. government disregarding court orders are not inherently partisan.
“The noncompliance Judge Schiltz described was not a matter of private opinion; it was the subject of findings in the public orders of his court,” the former judges wrote in their petition. The letter continues, “He described what his court had already found, in a published opinion justifying its orders and what the consequences of noncompliance were for the court’s operation. A judge who reports what has already been adjudicated in public is not litigating his case in the newspaper.”
The letter said that the Justice Department’s complaint could create a “perverse” effect by incentivizing the government to seek a judge’s removal after the court speaks out about the consequences of defying its orders.
During Operation Metro Surge, more than 1,000 immigration cases flooded Minnesota’s courts and caused a strain in the system. The cases came about the same time as prosecutors resigned in droves from Minnesota’s U.S. Attorney’s Office over opposition to the Justice Department’s directives in Operation Metro Surge.
The flouted court orders led to numerous rebukes from federal judges in Minnesota over the government missing deadlines to file records, immigrants not being released on time and a lack of communication from attorneys handling the filings, among other things. At one point, Schiltz said he identified 113 orders that the U.S. Immigration and Customs Enforcement violated in more than 77 immigration cases.
The misconduct complaint is the latest offensive of the Trump administration against federal judges. The administration has also filed similar complaints against federal judges in Washington, D.C., according to the Associated Press. Both were dismissed.
The group of judges point to the dismissals as grounds to toss out the complaint against Schiltz and Tunheim.
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