This is bigger than what happened in Milwaukee, says Andrew P. Napolitano. The White House is assaulting the separation of powers and the concept of federalism.
F.B.I. agents arresting Judge Hannah Dugan in Milwaukee on April 25. (F.B.I./Wikimedia Commons/ Public Domain)
Last week the F.B.I. arrested a Wisconsin state judge as she was walking into the courthouse where she works. The feds had alerted the media — but not the judge — to this event, and they arrived and recorded the arrest.
The standard and preferred practice when arresting a nonviolent person who is a public official with deep roots in the community is to invite the person to surrender with counsel.
Instead, without notice, this judge was stopped on a public street, handcuffed behind her back — a technique reserved for the most dangerous or threatening individuals — and within minutes, the F.B.I. director himself had posted a photo of this event on his X account.
The feds were unhappy at the manner in which a criminal defendant before this judge was permitted to leave her courtroom. By leaving through a nonpublic exit, instead of through the doors where the feds were awaiting him, his departure frustrated the feds who apparently expected the judge to accommodate them.
The technical charge against the judge is obstructing the administration of justice. The true charge was failing to aid the feds. [The Wisconsin Supreme Court suspended Dugan on Tuesday, CNN reports. Her next court appearance is May 15.]
Here is the backstory.
The feds have grown accustomed to commandeering the states to provide assistance when needed — and many states have routinely complied. They did so either out of a sense of common purpose or because the feds had bailed them out financially.
Two Supreme Court cases, with largely compatible results, tested this relationship. The first, South Dakota v. Dole (1987), addressed the strings attached to the grants of federal funds to the states. Congress wanted to lower speed limits on highways and decided to bribe the states in order to achieve that goal. It offered huge amounts of cash for paving state and federal highways in return for reducing speed limits to 55 miles per hour.
When South Dakota told the feds that it would take the cash but not the lower speed limits, the Supreme Court ruled that so long as the strings attached to the financial grants are rationally related to the purpose of the grants, the strings are lawful and enforceable. So, South Dakota then took the cash and reluctantly lowered its speed limits. [The National Maximum Speed Law was repealed in 1995 and the state’s speed limit has since been raised.]
Ten years later, Congress enacted gun regulations and ordered the states to enforce them. In a case called Printz v. United States (1997), the late Justice Antonin Scalia wrote for the Supreme Court that the states are still sovereign, they can reject federal cash and federal strings, and the feds cannot commandeer their officials.
The federal government, the court held, is one of limited constitutional powers, and the power to commandeer state officials is not among them.
Only Judges Issue Arrest Warrants
Kash Patel sworn into office as director of the F.B.I, by Attorney General Pamela Bondi in Washington, D.C., on Feb. 21. (White House)
Both of these rulings unambiguously recognized the sovereignty of the states. The South Dakota case led to vastly more congressional bribery — the states today simply do not refuse federal cash. The Printz case led to federal frustration.
That frustration boiled over outside a Wisconsin courthouse last week when the feds did what was surely unthinkable to Justice Scalia — arresting a sitting state judge who refused to be commandeered by the feds.
Judge Hannah Dugan was presiding over an arraignment for a non-incarcerated defendant when her court officers told her that the feds were in the courthouse hallway seeking to arrest the defendant in her courtroom, and the feds were growing impatient.
When she asked to see their arrest warrant, they had none. Instead of an arrest warrant issued by a judge, as the Fourth Amendment requires, they presented an administrative warrant in which one federal agent authorizes another to arrest a person in a public place.
Judge Dugan shares the view of your author that the Fourth Amendment means what it says and thus administrative warrants are blatantly unconstitutional, and she would not recognize it.
The purpose of the amendment is to ensure that only judges order arrests. When her business with the defendant in her courtroom was completed, she asked him to leave through the exit used by jurors, which was not accessible to the feds.
She did not inform the defendant that the feds were looking for him, but he apparently sensed that something was up; and when he left the courthouse and was met by feds who were waiting for him, he ran. A brief chase ensued, but the six feds captured the one defendant.
A week later, Judge Dugan was arrested for obstruction of justice.
Her arrest implicates not only the Supreme Court cases above — Wisconsin never agreed to have its officials assist the feds in immigration enforcement in return for federal cash, and the feds cannot commandeer state officials, judges or police, to assist them — as well as the recent Supreme Court decision on immunity.
Though that case addresses presidential immunity, it is instructive on the nature of government in America. It teaches that government officials cannot be criminally prosecuted for the exercise of their core functions.
So, if the secretary of defense directs Air Force jets to attack a structure in a foreign country he mistakenly identifies as military but which turns out to be civilian, he cannot be prosecuted for homicide. If F.B.I. agents raid and destroy the wrong house, they cannot be arrested for breaking and entering.
And if a judge tells a defendant to leave her courtroom from door A and not door B, because behind B are folks with a phony warrant, she cannot be prosecuted.
This is bigger than Judge Dugan. We are witnessing an unprecedented assault on the separation of powers and the concept of federalism by a White House impatient with the constitutional process and largely indifferent to the role and function of the judiciary.
The role of the judiciary is to be anti-democratic — to protect lives, liberties and properties from the other two branches.
If the feds succeed in intimidating judges and bending them to the presidential will, our liberties will have no protection.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
The arresting of people in front of the media (especially those that are holding an office or are influential in some way) is a technique perfected in Romania during the 2000s (with the supervision of the U.S. Embassy).
The Romanian Security Apparatus have learned that to humiliate an adversary and destroy their credibility is easily and quickly done by parading them in handcuffs in front of the press, regardless of whether they were innocent or guilty (they were mostly innocent).
As such, the press was announced prior to the event that an arrest was to be made.
This type of public humiliation is a remnant of the Communist times (especially in the 50s) where the Chiaburs (wealthy peasants) received a trial by public and paraded as corrupt.
It’s called a “perp walk,” and it become prominent in New York City in the 1980s under Mayor Rudy Giuliani, a former prosecutor.
hxxps://en.wikipedia.org/wiki/Perp_walk
So America is now officially a communist state.
I hope state and local judges, etc., around the US all refuse to co-operate with the FBI.
Frantz Fanon:
“They realize at last that
change does not mean reform, that
change does not mean improvement.”
“The role of the judiciary is to be anti-democratic — to protect lives, liberties and properties from the other two branches.”
This is the viewpoint of greedy CONservatives: property uber alles.
The role of the judiciary, and the other two “branches” of government,
is to protect oligarchs from the wrath of common people,
outraged by the results of oligarch stupidity.
Supreme Court Justice Louis Brandeis, 1933:
“We must make our choice.
We may have democracy,
or we may have wealth concentrated in the hands of a few,
but we can’t have both.”
In reality the anti-democratic function of judges is to defend the powerful against the unwashed masses.
No. This judge allegedly broke the law. Not only should he be arrested, if convicted, he should lose his office for not upholding his oath, and, he should be disbarred. Cops, lawyers, and judges have long been spoiled by qualified immunity and since it is only precedence and not law, I’m glad to see them finally having to pay for these blatant acts of misconduct. Rules for me AND thee.
I live in Wisconsin. It’s significantly more complicated than that-the feds can’t arrest people inside the court room and legally speaking, people are entitled to due process-finally, handcuffing a judge ./ an administrative warrant does not require an arrest, and a criminal warrant requires a grand jury indictment prior to arrest. Also, it’s a she not as he.
I think a competent reading of the situation shows no violation of the law by the woman judge, but rather the upholding of the law in her jurisdiction. She would have violated law only had there been a valid warrant which there was not. The origin of this sort of jurisprudence goes all the way back to Runnymede.
I disagree. Your obvious inattention to one aspect of this story illustrates how a significant portion of Americans are blindly following a Mussolini style demagogue who is commandeering the judicial system to exert his dictatorial authority. If you had bothered to read the article in any detail you would have noticed that the judge in question was a woman…not a man.
The MAGA Americans that elected Trump and his co-conspirators of Republican Congresspersons are now fully responsible for our nation’s final flush down the toilet. To be fair, I would add that the Democrats who stand and applaud Netanyahu…and then vote to fund America’s foolish proxy wars, are in the own self righteous way, equally to blame.
The fine edge between States Rights and Federal Authority is a legal maze that confuses my comprehension…but the purpose of our Constitutional mandate to “balance the power” of our Republic does not! This is what Trump seeks to disassemble. If our Judicial System can be bent to his will… we will lose the great experiment called Democracy.
This is not a time to blindly ignore the details of what you read. Be critical if necessary….but think for yourself…and for the future generations, who like yourself, may also benefit from our Constitutional balance of power…if it still exists.
Why don’t you actually read the article before commenting?
Either America destroys ignorance or ignorance will destroy America.
“…Before a dictator is ousted or dies a natural death, the oppressed people can wait for years, with champagne chilling in the fridge to celebrate when the dictator dies. Years of internalizing the change and quietly preparing for when the moment comes…”
Pedro Almodovar 2024 translated by Frank Wynne , The Last Dream, p.31.
Today we can celebrate the 80th Anniversary of Adolf Hitler having to put a bullet into his own brain.
Hip, Hip, Hooorraaayyyy!
“When I despair, I remember that all through history the way of truth and love have always won. There have been tyrants and murderers, and for a time, they can seem invincible, but in the end, they always fall. Think of it–always.”
Mahatma Gandhi
@white roses:
maybe, just maybe there would be reason to
“hip hip hooray!” if hitler, by taking his own life,
had taken fascism and [self] hatred with him.
he did not. very much to my dismay …
as to gandhi’s optimism:
if truth and love were victorious, they never were for
long. a tyrant fell and made way for the next tyrant …
gandhi fell (1948), as did JFK (’63), malcolm X (’65),
martin l. king (’68), archbishop romero (1980) and
countless other activists for peace around the globe.
while arms makers know: “peace does not pay!” and
make a killing – and more – selling their wares.
given that extreme right [s]wingers are also at work
in europe and elsewhere, their wrecking balls will
dismantle what were – supposed to become – viable
democracies in NO TIME, if we don’t find the courage
for massive resistance NOW.