Democrats and legacy media outlets warned about the perils of the Trump administration’s arrest of state judges last week for obstructing the arrests of illegal immigrants.
Commentators and politicians cast the arrests of former New Mexico state Judge Joel Cano and Wisconsin state Judge Hannah Dugan as an unprecedented attack on an independent judiciary and a slide into a dictatorship.
Cano resigned his seat but hasn’t admitted any guilt in the federal case. He was charged with allegedly harboring an illegal immigrant in his home. His wife, Nancy Cano, was also charged in the case.
The former judge reportedly wrote to the New Mexico Judicial Standards Commission, “I find these allegations to be highly sensationalized and without merit. … There is no way in the world that I would have allowed my grandkids to have any contact with the boys if I sensed danger.”
A statement on behalf of Dugan reportedly said she “will defend herself vigorously and looks forward to being exonerated.”
Here are three claims about the arrests and how they compare with the facts.
1. An Attack on the Judiciary and the Separation of Powers
Numerous Democrats were quick to speak out about the arrest of Dugan on the grounds of a Milwaukee courthouse. They were not as quick to jump on Cano’s arrest, since Cano resigned before he was arrested.
However, as far as the “separation of powers” of the branches of government goes, the judges were not federal judges, and the separation applies to the federal branches of government. Further, it’s not unusual for the federal executive branch to bring criminal charges against judges in the judiciary. For that matter, members of Congress—part of the legislative branch—have also been prosecuted for alleged violations of the law.
Among the Democrats who joined the chorus, Rep. Jamie Raskin, D-Md., the ranking member of the House Judiciary Committee, asserted in a post on X that the arrest of the Wisconsin judge marked a “massive escalation” by President Donald Trump, saying: “Democrats are standing strong for judicial independence. This is an unmistakable descent further into authoritarian chaos.”
Wisconsin’s Democrat Sen. Tammy Baldwin said in a public statement, “Arresting a sitting judge is a gravely serious and drastic move, and it threatens to breach those very separations of power.”
Sen. Cory Booker, D-N.J., made a similar point, posting on X, “The FBI took the extreme and dangerous step arresting a sitting judge.”
“Our nation’s system of separation of powers has stood up to tyrants and despots before, but the grievous threat we face today demands we in our generation act,” Booker’s post continued.
However, neither case is novel.
In 2019, a Massachusetts state judge, Shelley M. Richmond Joseph, was charged by federal prosecutors for helping an illegal immigrant who was in her courtroom avoid being taken into custody by federal agents. She had ordered federal agents out of the courtroom then instructed the bailiff to release the illegal immigrant.
The U.S. Court of Appeals for the 1st Circuit rejected the judge’s claim that she was immune from a federal criminal prosecution since she was acting as a state judge. Prosecutors entered into an agreement to dismiss the charges if the judge submitted to a review by the state commission on judicial conduct.
“It’s almost exactly what happened in Wisconsin,” Hans von Spakovsky, a senior legal fellow with The Heritage Foundation, told The Daily Signal. Von Spakovsky wrote about the 2019 Massachusetts case in a report in February.
Additionally, last year, federal prosecutors charged former Sen. Bob Menendez, D-N.J., and former Rep. George Santos, R-N.Y., with crimes. Both were members of a co-equal branch of the federal government.
Federal law prevails over state law, a matter that was settled in the Civil War, von Spakovsky said. Further, he said, federal law can be enforced against local officials.
“It’s similar to [Good] Samaritan laws. Local officials can stand by and do nothing,” von Spakovsky said. “They cannot be forced to help federal officials enforce federal immigration laws. But if they step over the line of simply standing still and they interfere with, obstruct, hide, transport an illegal alien, then they are engaging in criminal behavior, and they can be prosecuted.”
Presuming that obstructing immigration enforcement is no different from obstructing other laws, in recent years, several state-level judges faced federal prosecutions spanning the first Trump term and through President Joe Biden’s term.
“If a judge, for example, like the one [Cano] in New Mexico, is sheltering an illegal alien in his house, he is breaking federal immigration law,” von Spakovsky said. “If a local judge was taking bribes, do they think the local judge could not be federally indicted and charged with taking bribes?”
Judges can be federally prosecuted for any number of reasons. Last year, a Nevada state judge was indicted for allegedly misusing funds. Trump pardoned her last week. In 2023, federal prosecutors charged an Arkansas state judge with bribery and wire fraud, among other charges. In 2018, a Texas state judge was charged with bribery and obstruction of justice. That same year, a West Virginia Supreme Court justice was indicted on charges that included mail fraud and wire fraud.
2. A Violation of Justice Department Policy
Former federal prosecutor and MSNBC legal analyst Andrew Weissmann asserted that Trump administration officials publicly discussing the Wisconsin arrest is a violation of Justice Department policy. He didn’t outline the policy specifically but suggested that DOJ officials shouldn’t discuss a pending case.
When the Wisconsin judge was arrested, FBI Director Kash Patel posted on X, “No one is above the law.”
Attorney General Pam Bondi provided a play-by-play of the arrest during a Fox News interview.
“The judge learns that ICE was outside [the courtroom] to get the guy because he had been deported in 2013, came back into our country, [was] charged with committing these crimes, and the victim is in court,” she said.
Bondi added: “She comes back into the courtroom. … Takes the defendant and the defense attorney back in her chambers. Takes them out to a private exit and tells them to leave.”
Weissmann said neither Patel nor Bondi should have talked about the arrest.
“So, there has been a violation here that we know for sure, and it is not the judge. That’s something that remains to be proved,” Weissmann said on MSNBC. “The thing that we do know is that the FBI director has violated DOJ policy.”
“This is somebody who’s being charged, and you are supposed to stay mum. And instead, he completely denigrated her, and you don’t do that,” he continued. “The same thing, by the way, Pam Bondi was on Fox News talking about how we’re going to go after judges. That is what they’re doing.”
An arrest is a long way from a conviction. And both judges are presumed innocent.
However, for years, it has been the norm for senior Justice Department officials, including the attorney general, U.S. attorneys, and high-ranking FBI officials to issue public comments about notable arrests.
During 2024, the last full year of Biden’s administration, the Justice Department website shows there were more than 300 press releases about arrests, many of which included comments from U.S. attorneys, and in several cases, Attorney General Merrick Garland.
“Think of it another way. If the FBI showed up in this lady’s courtroom with an arrest warrant for bank robbery, and she helped that local guy, a bank robber, escape arrest by the FBI by sneaking him out of her courtroom, nobody would question that she had done wrong,” von Spakovsky said.
3. Puts a Chill on the Judiciary
PBS NewsHour White House reporter Laura Barron-Lopez reported the arrest could have a “chilling effect” on the judiciary.
She interviewed former FBI Special Agent Asha Rangappa, who was critical of the arrest.
As Barron-Lopez reported on the arrest, she said, “Judge Dugan was arrested on the grounds of a Milwaukee courthouse where she presides, according to the U.S. Marshals Office. … And so, that kind of spectacle, which is what Asha said, may be sending a chilling effect to others across the legal community.”
However, von Spakovsky said: “The only chilling effect is that you can’t obstruct and violate federal immigration law. If you don’t violate federal immigration law, then there is no chilling effect.”
