While it’s clear that the federal government cannot conscript state officers to serve their cause, can they hold a state judge culpable for allegedly thwarting it? The government has decided to take a stand against Massachusetts District Court Judge Shelley M. Richmond Joseph.

“This case is about the rule of law,” said United States Attorney Andrew E. Lelling. “The allegations in today’s indictment involve obstruction by a sitting judge, that is intentional interference with the enforcement of federal law, and that is a crime. We cannot pick and choose the federal laws we follow, or use our personal views to justify violating the law. Everyone in the justice system – not just judges, but law enforcement officers, prosecutors, and defense counsel – should be held to a higher standard. The people of Massachusetts expect that, just like they expect judges to be fair, impartial and to follow the law themselves.”

Whenever someone appeals with the trite platitude “rule of law,” it’s clear they’re playing to the lowest common denominator. Putting aside the factual allegations, the most dubious of which is that the judge went off the record during a sidebar conference for less than a minute, which the indictment portrays as some nefarious act in itself, even though it’s utterly commonplace, as one would expect a U.S. Attorney to know, the notion that the “rule of law” is so obvious and self-evident as to support this breach of comity is silly.

The “rule of law” is replete with conflicts, questions, nuances, which is why we have courtrooms, and then appellate courtrooms, even a fairly nice one in Washington. The “rule of law” is how one panders to the simplistic. Is that all Lelling’s got? Maybe not.

“This is like using a nuclear device to kill a gnat,” said Nancy Gertner, a former federal court judge in Massachusetts. “At best, this is the area of a mistake, and you don’t use criminal law to deal with a mistake. This is a completely inappropriate use of criminal law. It’s outrageous.”

What screams out here isn’t former-Judge Gertner’s outrage, but that she doesn’t challenge the legality of the indictment. The conduct may be disproportionate, but she doesn’t say it’s wrong.

Rory Little, a professor at the University of California, Hastings College of the Law, and a former federal prosecutor, said the charges were astonishing in scope.

“I think this is pretty outrageous and, in its specifics, pretty unprecedented,” Little said. “It signals a huge ratcheting-up of the current administration’s hostility to what we might call ‘sanctuary’ noncooperation policies.”

There is no question that it’s unprecedented for the feds to indict a sitting state court judge, but that only means it hasn’t happened before. It doesn’t mean that the indictment, if proved, is legally defective. It doesn’t mean that the federal government hasn’t committed some unlawful act in imposing its law upon the conduct of a state judge.

For all the outrage, the excess and unseemliness of Lelling’s indicting Judge Joseph, the question remains whether her conduct, if proved, violated 18 U.S.C. § 1512(c)(2).

(c)  Whoever corruptly–

(2)  otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

Forget about the 20 years part, as that’s not happening under any circumstances, and focus instead on the elements of the offence. There is no question that Judge Joseph was otherwise authorized to do as she did, to release a defendant based upon an out-of-state hold that no one believed was for the same person. There is no question that the defendant’s lawyer was entitled to speak with his client, and that she had the authority to permit it. And once done speaking, there is no question that the defendant could be released through the lockup sally-port door.

But the judge knew there was an ICE agent waiting for the defendant, and sent the agent out of the courtroom into the lobby. The judge similarly knew that if the defendant went out through the sally-port, the ICE agent in the lobby wouldn’t know about it, and thus wouldn’t be able to take the defendant into custody, even though the judge was of the view that he was not the person the ICE agent was actually looking for. And, likely, was of the view that the ICE agent would neither care much about the fact that this defendant wasn’t his real target.

Was the judge duty-bound to facilitate the ICE agent’s arrest? Did the judge obstruct justice under § 1512 by “corruptly” impeding the arrest by exercising her lawful authority to cut a defendant loose in whatever fashion she deemed proper?

Laws like “obstruction” were never intended to constrain the lawful actions of a state court judge, and such constitutional conflicts were thought to be avoided at all costs. But now that the feds have chosen to take Judge Joseph to task for her entirely lawful and proper exercise of authority under state law, but in conflict with the ICE agent’s purpose, there will be an answer. Federal supremacy offers one way of deciding who is right, but then, this isn’t about a state judge ignoring a federal court, but a state judge not facilitating an ICE agent’s job of busting a guy the state judge has just decided to free.

Ultimately, the question must now be answered, as the United States Attorney has forced the issue. But until it is answered, by a federal court of competent jurisdiction, her decision to exercise her lawful authority should not be deemed “corrupt,” and to the extent she made an affirmative decision to free a defendant she, in her judicial capacity, determined should be free, her decision to put state law ahead of an ICE agent’s bust gives no cause for prosecution for obstruction. The ICE agent can always bust the defendant. He’ll just have to find him on his own, and not get a free ride on a state judge’s robetails.

Update: From Massachusetts Attorney General Maura Healey.

Today’s indictment is a radical and politically-motivated attack on our state and the independence of our courts. It is a bedrock principle of our constitutional system that federal prosecutors should not recklessly interfere with the operation of state courts and their administration of justice. This matter could have been appropriately handled by the Commission on Judicial Conduct and the Trial Court. I am deeply disappointed by U.S. Attorney Andrew Lelling’s misuse of prosecutorial resources and the chilling effect his actions will have.