Arresting a judge who breaks the law does not amount to war on the judiciary

And "don't obstruct justice" is not a "chilling message."

In its rush to exploit the narrative that Trump is attacking the judiciary and thus undermining the rule of law, the Washington Post has seized on the arrest of a Wisconsin judge who interfered with attempts to apprehend an illegal immigrant. A front-page headline in today’s paper edition proclaims: “Judge’s arrest takes war on judiciary to a new level.” The story begins:

The escalating fight between President Donald Trump and the judiciary took a new form Friday.

After weeks of mounting questions about whether Trump was defying court orders, the administration arrested a Wisconsin judge and accused her of helping a Mexican immigrant evade arrest by federal agents.

Officers handcuffed Milwaukee County Judge Hannah Dugan in public. Attorney General Pam Bondi bragged on the Fox News show “America Reports” about the administration’s willingness to go after judges who “think they’re above the law.” FBI Director Kash Patel began the day by announcing Dugan’s arrest on social media and ended it by posting a photo of agents leading her away.

While many Republican supporters of the president cheered the aggressive actions, critics of the administration said the spectacle sent a chilling message.

I get that Democrats and their media allies want to persuade Americans that Trump is waging war on the judiciary. They see this theme as a winner, and for good reason. The vast majority of Americans believes the president should abide by final court rulings, especially those rendered by the Supreme Court. At long last, an 85-15 issue the Democrats can try to hang their hat on.

But to use the arrest of the Wisconsin judge to further their Trump-is-a-lawless-enemy-of-the-judiciary narrative is to mix apples and oranges. Indeed, it’s a deliberate attempt to mislead.

Disregarding final court rulings would be one thing. Arresting lawbreaking judges is something entirely different. The former move would undermine the law. The latter move upholds it.

My memory isn’t what it used to be, but it’s still good enough to remember back to last year when Democrats solemnly informed us that no one is above the law. Surely, that includes judges.

The judge in question here, Hannah Dugan, tried to prevent federal agents from detaining an illegal immigrant who was set to appear for a non-immigration related proceeding. According to the government, Dugan told the agents who were looking for the immigrant to speak to the chief judge. With their attention thus diverted, Dugan escorted the immigrant and his lawyer out of her courtroom through a private exit.

There’s a name for misdirecting law officers to enable a suspect to evade them. It’s called obstruction of justice. Here, the technical names are “obstructing a proceeding before a federal agency” and “concealing an individual to prevent his arrest.”

This is what Dugan has been charged with. The facts alleged by the government fully support the charges. I’ve seen plenty of outrage over the charging, but no refutation of the underlying facts.

If Judge Dugan had been apprehended for drunk driving or for theft, I’m pretty sure no one would object to her being arrested. I can’t think of any reason why she shouldn’t have been arrested for obstructing law officers from doing their job.

The Post doesn’t seem able to think of one either. Thus, it relies on “context,” not law:

Charles Geyh, an Indiana University law professor who studies judicial conduct, said Dugan’s arrest must be viewed in the broader context of [other Trump administration] interactions with the court system.

He called the arrest part of a pattern: “An attempt to bludgeon, an attempt to coerce, an attempt to weaken the one branch of government that stands between the executive — the Trump administration — and it doing whatever it wishes to do.”

“These fall into the category of backing the judiciary up against the wall and saying, ‘Nice court system you have here. I’d hate that you see something happen to it,’” Geyh said.

Arresting one lawbreaking local judge is not “an attempt to weaken” the judiciary. It’s simply an effort to prevent and deter people, including local officials, from obstructing lawful efforts to catch illegal immigrants.

Nor does Dugan’s arrest “back the judiciary up against the wall.” Judges who don’t commit illegal acts have no fear of being backed against a wall.

As for the “chilling message” the Post says the administration has sent, it amounts to this: Don’t obstruct enforcement of the law.

Nothing I’ve written so far in this post speaks to the completely separate question of whether the Trump administration is waging war against the judiciary. The question is a serious one.

As far as I know, Trump has not refused to adhere to any final court judgment. However, he has, in my view, misconstrued court rulings in order to continue legally problematic policies.

The best example is his construction of the term “effectuate” in the case of Abrego Garcia, the Maryland deportee. The administration construes the word to mean “allow” — an untenable position, in my view.

This doesn’t amount to “war” on the judiciary, but I think it’s a mild form of resistance.

At some point, the administration will run out of wiggle room in an adverse court ruling. At that point, the administration will either comply with the adverse ruling or it won’t.

In the meantime, it’s fair to criticize the administration for game-playing. But it’s inaccurate to declare a constitutional crisis.

And it’s manifestly dishonest to conflate the arrest of a judge who, from all that appears, broke the law with an assault on the judiciary or its role in the constitutional structure.