Attorney General Todd Blanche is moving to take seven Minnesota federal judges off Homeland Security cases after their interviews with The New York Times drew a judicial misconduct complaint. The Justice Department accused the judges of discussing immigration disputes that remain before the courts and compromising the appearance of impartiality. Its filing names Judges Patrick Schiltz and John Tunheim, along with other judges who spoke anonymously. The department is seeking recusals and an investigation into their conduct.
The complaint, filed September 30th with the Eighth Circuit Court of Appeals, centers on a September 17th Times article about Operation Metro Surge. The immigration enforcement operation generated numerous detention challenges in Minnesota’s federal courts. Schiltz sat for a 90-minute interview, according to the filing, while six other members of the state’s federal bench also spoke with the newspaper.
Blanche said the interviews crossed the boundaries judges are expected to observe when discussing their work publicly. “Seven federal judges in the District of Minnesota talked to the New York Times about cases, some of which are on-going, in a manner that the Department of Justice views as a clear violation of their ethical duties,” he said. “Their conduct has undermined public confidence in an impartial judiciary in Minnesota.”
As Fox News reported, the department is seeking to remove judges from immigration cases. The DOJ’s announcement specifies that its request covers any matters involving the Department of Homeland Security. Acting Deputy Attorney General Trent McCotter accused the judges of using their positions to promote their views through the newspaper. “Our complaint alleges that federal judges in Minnesota used their official judicial office to pander to the press about immigration policies,” he said.
The complaint singles out Schiltz’s warning that the administration’s actions “created a grave threat to the rule of law.” It also quotes Tunheim as saying, “They weren’t arresting, in my view, people who were dangerous criminals on the street.” The department described Tunheim’s assessment as inaccurate political commentary and argued that a judge’s assessment of dangerousness does not determine whether immigration detention is legally authorized.
To support its allegation that the interviews addressed unresolved issues, the DOJ pointed to detention litigation still moving through the courts. Its filing cited Avila v. Bondi, in which the Eighth Circuit reversed a release order issued by Tunheim. The department said that case remained pending before the Supreme Court as Avila v. Blanche. It also identified appeals concerning detainees who filed petitions in Minnesota after being transferred elsewhere.
Watch the Justice Department’s September 30th press conference here:
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The department cited judicial ethics provisions covering public confidence in impartiality and comments on pending litigation. Its complaint argued that the restriction on discussing a case continues through the appeals process. The filing also invoked the 2001 Microsoft litigation, in which an appeals court disqualified a judge following interviews about the case. DOJ argued that an intention to educate the public doesn’t excuse commentary that violates those rules.
The complaint will be handled within the judiciary under the federal courts’ misconduct procedures. The circuit’s chief judge reviews a complaint and may dismiss it or appoint a special committee to investigate. A committee submits its findings to the circuit’s Judicial Council, which determines whether corrective action is appropriate. The DOJ specifically requested a special committee to investigate the Minnesota judges’ conduct.
Associate Attorney General Stanley E. Woodward Jr. accused the judges of pursuing a partisan press campaign that advanced their immigration policy preferences. He said the department’s action was intended to secure an impartial forum for enforcing federal immigration law. “This Department of Justice will not let that stand, and today’s complaint ensures we have a fair and impartial forum to continue to vigorously enforce our Nation’s immigration laws in court,” Woodward said.
Featured image credit: screengrab from the embedded video.