The simplistic slogan that “no one is above the law” has become unfortunately popular, as it’s neither correct nor sound, gripping the public perception whenever it’s convenient. It was regurgitated constantly when it was Donald Trump in the dock, until the Supreme Court’s decision to the contrary, and it reared its ugly head again when Milwaukee District Court Judge Hannah Dugan was arrested and indicted for her role in interfering with ICE’s seizure of Eduardo Flores-Ruiz.

Judge Dugan moved for dismissal on the basis, inter alia, of judicial immunity. Eastern District of Wisconsin Magistrate Judge Nancy Joseph’s report and recommendation would deny the motion, finding that while immunity for civil liability is clearly established, the same cannot be said for criminal liability.

Putting aside the propriety of Judge Dugan’s conduct, which arguably exceeded the mere non-facilitation of ICE nabbing a defendant in her court, the issue opens a huge can of worms that could potentially be used to undermine the judicial independence of state court judges by making them subject to federal prosecution if they fail to do the executive’s bidding.

The argument proffered by Judge Dugan was not that judges were inherently immune from all prosecution (remember the “Kids for Cash” scandal in Luzerne County, Pennsylvania?), but that exceptions proved the rule.

Guided by this history, Dugan contends that only three exceptions have been made in which judges can be criminally prosecuted, none of which applies to her case. First, she argues that a judge can be prosecuted for her wholly unofficial acts. Second, she argues that a judge can be prosecuted for criminal deprivation of a constitutional right under § 242. And third, she argues that a judge can be prosecuted if she conducts an official act, but the act is coupled with an ordinary crime for the pursuit of self-enrichment or self-gratification.

The Mag was unpersuaded, not because the arguments made and cases cited were invalid so much as they failed to provide sufficient cover for the Mag to feel comfortable ruling otherwise.

In short, I am unconvinced that these cases establish settled law on judicial immunity from criminal prosecutions related to official judicial acts as exists in the context of a civil lawsuit for monetary damages.

The problem, to the extent it is a problem, is that they just don’t arrest and prosecute enough judges to establish clear precedent on the issue, even though the criminal immunity of judges here and there have been at issue. But why, you shrug, should Dugan get a free pass for her wrongful obstruction of ICE’s glorious arrest of a defendant in the hallway outside a state criminal court? It opens the door to a plethora of problems that judges confront in doing their substantive judicial job where the choice will be to accommodate the whims of the president or rule as an independent judge.

Consider a state court judge presented with a motion to dismiss a criminal indictment in furtherance of justice. The argument presented is that the outcome will be unduly onerous as the defendant will not merely suffer the sentence imposed by the court, but that it will trigger immigration consequences that will have a deleterious affect on the defendant, his family, his business and his community. The judge finds this persuasive, and grants the motion to dismiss in part based on the defendant’s removal should he be convicted. Obstruction?

Consider a state court judge about to sentence a defendant, whom she believes should be given a sentence of some period of incarceration. The argument is made that if the defendant is jailed, ICE will file a detainer and, upon completion of the sentence, will be removed. Much as the judge finds incarceration otherwise appropriate, the judge does not find removal from family and life in the United States appropriate, and so imposes a sentence of conditional discharge so the defendant walks away from the courthouse without ICE knowing. Obstruction?

The potential for using prosecution, or the threat of prosecution, to control the exercise of judicial independence by state court judges is obvious. The examples here are limited by the current controversy, but future controversies will raise similar threats of prosecution for the ordinary exercise of judicial fiat. Even if it turns out that judges aren’t routinely arrested and prosecuted for Contempt of Trump, the chilling effect of knowing that they could be is more than sufficient to keep them in line.

But does that mean Judge Hannah Dugan gets away with it? Not necessarily, as she remains subject to the Code of Judicial Conduct and can be penalized from admonishment to removal. If that sounds like weak sauce, then consider where Mag. Judge Joseph found comfort in her recommendation.

This conclusion does not leave judges acting in their official capacities or judicial independence at the mercy of prosecutors. As the Ninth Circuit stated in Claiborne, judges enjoy the “same protections as ordinary citizens from vindictive prosecution.” A prosecutor seeking to charge a judge of a criminal offense, if proceeding by criminal complaint as was the case here, must satisfy the reviewing judge that there is probable cause a federal crime has been committed. Additionally, the prosecutor must then present his case to a grand jury as required by the Fifth Amendment. And ultimately, the prosecutor must prove each of the elements of the charged offense beyond a reasonable doubt to a unanimous jury of twelve citizens.

What could possibly go wrong?