The Justice Department is demanding two federal judges in Minnesota step aside from overseeing two immigration-related cases because of their public comments about the Trump administration’s enforcement surge in the state.
In court papers filed Tuesday, Associate Attorney General Stanley Woodward argued that the judges broke ethical rules in speaking on the record with The New York Times last month about the chaos surrounding last winter’s immigration crackdown in Minneapolis.
Woodward accused the judges of “improper political commentary” that he said raised doubts about their ability to fairly adjudicate the cases. Federal law, Woodward wrote, “compels recusal when a judge’s partiality might reasonably be questioned.”
A court spokesperson declined to comment on the DOJ’s filings, citing rules preventing judges from discussing pending cases.
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One of the motions filed by Woodward this week calls for Judge Patrick Schiltz to be disqualified from a case in which the administration is seeking to revoke citizenship from a Somali American who was convicted of supporting terrorists.
Schiltz, who served as chief judge of the U.S. District Court for the District of Minnesota during the surge, told the Times that the administration’s repeated violations of court orders had strained the judiciary’s relationship with the DOJ and “created a grave threat to the rule of law.” He attributed the problem largely to incompetence and staffing shortages, and he declined to discuss ongoing cases, according to the Sept. 17 article.
The judge said he hoped his account of the strain caused by the surge would help the public understand how the U.S. government depends on the rule of law.
Woodward’s other filing seeks to disqualify Judge John Tunheim from a case charging a South African woman with falsely claiming U.S. citizenship and voting illegally in Minnesota.
Tunheim told the Times that immigration agents “weren’t arresting, in my view, people who were dangerous criminals on the street.”
Woodward said the article “advances an anti-Trump Administration agenda in the immigration context” and that Schiltz and Tunheim were effectively taking sides against the administration by participating in it.
The assistant attorney general also argued that the judges were not protected by the advisory opinion issued this year by the judiciary’s Committee on Codes of Conduct, which loosened restrictions on what judges can say about the rule of law.
Under federal law, judges whose impartiality is questioned by parties in their courtroom have discretion over whether to recuse themselves. If Schiltz and Tunheim decline to recuse themselves, the government can appeal.
The attempt to remove the judges from their individual cases comes three weeks after DOJ officials filed a misconduct complaint demanding that nearly all the district’s judges recuse themselves from immigration matters.
The misconduct complaint alleged that anonymous and on-the-record comments by the judges to the Times violated the federal bench’s code of conduct, which generally bars jurists from commenting on pending cases or making political or policy statements on issues before them.
The DOJ wants the 8th U.S. Circuit Court of Appeals, which handles misconduct complaints from Minnesota’s federal district court, to force the judges to recuse themselves from cases involving the Department of Homeland Security.
A court spokesperson said at the time that the judges’ remarks were well within ethical guidelines, adding that the federal judiciary had recently issued an advisory opinion that judges may speak and write “on core judiciary matters such as advocacy for the rule of law and judicial independence.”
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