Cross the Trump administration on immigration, and you will pay.
That’s the apparent message behind two prosecutions that Trump’s Justice Department has launched against officials in the other co-equal branches of government.
Last month, prosecutors arrested a Wisconsin judge for allegedly helping an undocumented immigrant leave a courthouse. Then, this week, prosecutors charged a New Jersey lawmaker with assault after a scuffle outside an immigration detention center.
It’s no coincidence that both cases target perceived opponents of Trump’s signature issue. The president has pushed all manner of boundaries in his second term, facing off against courts and Congress at every turn. But in seeking to enact his mass deportation plan, he has tested constitutional limits most brazenly.
The criminal charges against Milwaukee County Circuit Judge Hannah Dugan and Democratic Rep. LaMonica McIver are the latest examples of Trump’s provocative constitutional warfare. Judges and lawmakers have broad immunity from criminal charges connected to their official duties, and prosecutors historically have been reluctant to challenge that immunity.
“There’s nothing really to parallel this sort of full-on attack on the coordinate branches,” said Stanley Brand, a former general counsel to the House of Representatives. “They’ve opened another new chapter in interbranch relations.”
Trump’s allies say he has an electoral mandate to implement his immigration crackdown, a personal conviction about the issue and broad legal authority to act. Judges and lawmakers who are impeding that effort are trampling on a core presidential power, they say.
“This is a defensive response by the administration to an assault on the law, on immigration law in particular,” said Mark Krikorian, executive director of the conservative Center for Immigration Studies. He added that he believed the left has coalesced against Trump’s immigration agenda because it is the president’s “marquee issue.”
But Trump critics contend the intensity of the pushback Trump has received from judges and Democratic lawmakers is because so many of his policy moves push the legal envelope — and because his administration has shown signs of defiance in the face of court orders.
And in the clashes with the other branches, the administration’s posture has hardly been solely defensive. In addition to launching charges against Dugan and McIver, the Justice Department has sued Democratic-run cities, counties and states for failing to cooperate with federal immigration authorities. Justice Department spokespeople did not respond to a request for comment on the department’s growing conflicts with the other branches of government.
The attacks have emanated directly from the White House, too. When a federal judge in Washington, D.C., ruled against Trump’s bid to swiftly deport people deemed “alien enemies,” Trump himself called for the judge’s impeachment.
The attitude is perhaps most embodied by Trump’s top domestic policy aide, Stephen Miller, who has lashed out daily against a “judicial coup” when judges have attempted to rein in some of Trump’s most extreme deportation tactics.
An alleged assault at an ICE facility
The newest escalation came this week with the charges against McIver. Alina Habba — the interim U.S. attorney for New Jersey who previously served as Trump’s personal lawyer — brought the case. Habba said the first-term lawmaker “assaulted, impeded and interfered with law enforcement” during a confrontation at a Newark Immigration and Customs Enforcement facility earlier this month.
“No one is above the law — politicians or otherwise,” Habba said in a statement Monday. “It is the job of this office to uphold justice impartially, regardless of who you are.”
In a criminal complaint made public Tuesday, prosecutors alleged that McIver “attempted to thwart the arrest” of Newark Mayor Ras Baraka, whom federal agents had attempted to remove from the facility when they realized he was not a member of McIver’s congressional delegation.
McIver “pushed an ICE officer” and “used each of her forearms to forcibly strike” a uniformed Homeland Security agent, according to the complaint. The statute the congresswoman is charged with violating includes in its definition anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” federal officials.
In a statement, McIver called the single felony charge against her “purely political,” adding that DOJ’s claims “mischaracterize and distort my actions, and are meant to criminalize and deter legislative oversight.”
Members of Congress are permitted by law to inspect immigration facilities.
Democrats rushed to defend McIver while bashing the charge as politically motivated. In a joint statement, House Democratic leadership said the move was “extreme, morally bankrupt and lacks any basis in law or fact” and blasted it as “a blatant attempt by the Trump administration to intimidate Congress and interfere with our ability to serve as a check and balance on an out-of-control executive branch.”
Trump, meanwhile, celebrated the charge. “She was shoving federal agents. She was out of control,” the president told reporters Tuesday. “The days of that crap are over in this country. We’re going to have law and order.”
The case against McIver resembles the one that the Justice Department brought in April against Dugan. She, too, is accused of impeding immigration agents — though not through a physical altercation. Prosecutors say the Milwaukee judge directed an undocumented immigrant through a side exit in her courtroom when she learned that ICE agents were in a nearby hallway seeking to arrest him. Dugan, who is charged with concealing an individual to prevent arrest and obstruction, has pleaded not guilty and is fighting to dismiss the charges.
“No one — regardless of their job title — can be allowed to assault ICE agents or harbor illegal aliens and get away with it,” White House spokesperson Abigail Jackson said in a statement to POLITICO. “President Trump is committed to removing illegal aliens from the country and defending our brave law enforcement officers. To those who plan to break the law to defend criminals and assault law enforcement agents: you will be held accountable.”
A pressure campaign against co-equal branches
Legal experts said the charges against McIver and Dugan — and the bellicose rhetoric the White House has hurled toward federal judges — seem intended to pressure other members of the judicial and legislative branches to stop resisting Trump’s agenda.
“I think they’re all part of the same pattern,” said former House and Senate lawyer Michael Stern, although he added that he remains unsure whether the moves are driven by a long-term desire to expand executive power or just to please Trump. “Maybe there’s some more thought-out plot to expand executive power so the only source of law is the president’s word. That seems to be the effect. I don’t know how thoughtful they’re being about it because the courts are not going to, I think, take kindly to this.”
Stern also said some of Trump’s claims are so aggressive that they undercut a central argument by the Justice Department that Trump is the victim, not the perpetrator, of breaches of the separation of powers. It is actually judges and state officials, the argument goes, who are overstepping their authority by meddling in national immigration policy.
“You can’t have separated power if any one branch is completely disregarding the interests of the others. That will not work,” Stern said. “And this administration considers its own prerogatives to be untouchable and has no regard whatsoever for any of the prerogatives of any of the other branches, including the states.”
But Trump and many of his supporters frame the question as a simple issue of law and order, not an abstract problem about divided constitutional powers. Nor do they see a danger that the recent criminal prosecutions will have a chilling effect on other judges or lawmakers.
“I don’t know what the issue of chilling is that we’re supposed to be worried about,” said Tom Fitton, the president of the conservative activist group Judicial Watch. “You can object to prosecutorial priorities by the Trump administration and arresting people and detaining them for deportation, as the law allows. But you can’t break the law.”
Of course, the Justice Department has often prosecuted lawmakers and judges at both the federal and state level over alleged corruption. And there have long been complaints that decision-making in those cases was tinged with politics.
But Stern sees the current prosecutions differently. “There’s clearly a campaign of intimidation, generally, that’s going on. It looks like that to me,” he said, adding that McIver “would never have been prosecuted in a million years except for the political ramifications.”
McIver is expected to make arguments that the prosecution intrudes on her rights as a legislator to conduct congressional business — rights protected by the Constitution’s “speech or debate” clause. But Stern noted that she may face challenges wielding that immunity against a charge that she committed a crime of violence.
“If she came in there and shot the officer, I’m not sure I’d be willing to say it’s covered by speech-or-debate. So, I’m not sure legally there’s a distinction,” Stern said. “That’s what makes it a little tough from a defense point of view.”
The charges filed against Dugan last month aren’t an entirely new foray for the Trump administration. During Trump’s first term, the Justice Department filed a similar criminal case against Massachusetts District Court Judge Shelley Joseph and a court deputy for allegedly helping an undocumented immigrant elude immigration authorities as he exited a courthouse.
Joseph fought the criminal charges, which were dropped during the Biden administration as part of an arrangement that effectively handed off the case to a state judicial disciplinary commission. That board has accused her of being dishonest with colleagues about the episode. A formal public hearing is set for next month.
A former federal judge who helped defend Joseph in the criminal case, Nancy Gertner, said the Trump administration’s aggressive posture is, at a certain point, likely to provoke reactions from both Congress and the courts.
“The question is: What’s the moment of overreach?” Gertner asked, noting that at the moment the House is pushing legislation that would actually expand the administration’s ability to defy the courts. “When will they take action to cabin what the DOJ is doing with respect to other congressional representatives and judges? I don’t know. What’s the bridge too far?”
Read the full article here
