Walter Olson
This is a story from Minneapolis, via law professor Steve Vladeck, but it’s not closely tied to the ICE roundups of recent days or the deaths that have resulted. Instead, it offers a timely snapshot of the Trump administration’s ongoing efforts to push around the independent federal judiciary.
After dozens of demonstrators invaded and disrupted services at Cities Church earlier this month, the US Department of Justice sought arrest warrants for eight persons, including six demonstrators, plus journalist Don Lemon, who was there to stream the events as live news, and his producer. A US magistrate judge examined the facts and agreed to issue warrants for the arrest of the leader of the protest group and two others—so far so plausible, since the 1994 Freedom of Access to Clinic Entrances (FACE) Act makes interference with church services a federal offense when done by means of obstruction, force, or threatened force.
However, the magistrate did not see probable cause to issue a warrant for the arrest of the three other demonstrators or of Lemon and his producer, given what was known of their conduct.
There ensued an extraordinary series of events in which the government went to Chief Judge Patrick Schiltz of the Minneapolis federal court, demanding that he override the magistrate. Schiltz said he would want a few days to consult with his colleagues, since the requested action appeared wholly unprecedented, and asked the government to brief its position. Instead, the feds went over his head to the Eighth Circuit Court of Appeals, demanding that they order him to act.
On Friday, the Eighth rejected this request, though without explanation. Schiltz explained in a letter that “the five people whom the government seeks to arrest are accused of entering a church, and the worst behavior alleged about any of them is yelling horrible things at the members of the church. None committed any acts of violence.” That could fall short of satisfying the elements of the FACE offense, which requires obstruction at least where there is not force or threatened force.
Steve Vladeck tells the story in more detail here. I should note that this is among numerous instances in which the current leadership of the US Department of Justice has tried to place extraordinary pressure on judges who have insisted on bringing to bear independent judgment and their best reading of the law instead of jumping to comply with the government’s wishes.
And Schiltz’s two letters, which are masterfully written, are very much worth reading. (“[The government has] argued that I must accept this as true because they said it, and they are the government.”)
Vladeck indicates that prosecutors who feel frustrated at a magistrate’s refusal this way typically have at least two decent options to keep going: they can assemble fuller evidence and take it back to the magistrate, or they can go instead to a grand jury (of which one has been meeting in Minneapolis). One possibility is that DOJ isn’t sure it could get its way from a grand jury, either, in light of recent refusals by grand juries in various parts of the country to play their usual role of blessing charges. Vladeck’s inference—not the most charitable, but I would hesitate to call it wrong—is that DOJ doesn’t want to tolerate even short delays because it is trying to drive headlines as distinct, I suppose, from laying down the most solid basis for a successful prosecution.
Update Jan. 26 late afternoon: the Department of Justice has now withdrawn its request.
[Reposted and expanded from the author’s Substack; subscribing is free.]