from the petulant-toddlers dept
First off, there’s a chance my headline (which went through several iterations) undersells what’s actually going on here. What’s detailed below is yet another jaw-dropping act of executive hubris, with the DOJ again deciding it can do whatever the hell it wants when a judge dares to tell it “no.”
A little background: it was discovered at some point that the acting director of the St. Paul ICE field office, David Easterwood, was also a pastor of Cities Church, also located in St. Paul, Minnesota. A protest naturally followed. A bit more unnaturally, protesters entered the church and disrupted the service. CNN’s Don Lemon covered the protest, drawing some fire of his own simply for being a rather persistent critic of the Trump administration and its actions.
Much more naturally, the administration immediately declared it was going to start arresting some people, a list that included CNN’s Don Lemon and his producer.
U.S. Department of Justice Assistant Attorney General Harmeet Dhillon said her agency is investigating federal civil rights violations “by these people desecrating a house of worship and interfering with Christian worshippers.”
“A house of worship is not a public forum for your protest! It is a space protected from exactly such acts by federal criminal and civil laws!” she said on social media.
Attorney General Pam Bondi also weighed in on social media, saying that any violations of federal law would be prosecuted.
You’ll note the qualifier AAG Dhillon used in this exclamation point-riddled X missive: “Christian worshippers.” That sort of thing matters, because it makes it clear (perhaps unintentionally) that this government won’t mind if other protesters disrupt religious services engaged in by members of other religions. (You know exactly what I mean as assuredly as Dhillon knew what she meant when posted that response to the protest.)
Meanwhile, in my home state, Kristi Noem’s successor, Governor Larry Rhoden, announced legislation that would turn the misdemeanor offense of using threats or violent acts to prevent people from practicing their religion into a felony that would double the jail time and fine for those convicted of this offense (bringing it to 2 years in jail and a $4,000 fine).
“If religious liberties fail, any other liberty eventually fails with it,” Rhoden said during a press conference. “If someone decides to target a house of worship, there will be real consequences.”
OK. Well, we’ll see how this gets selectively enforced in the future. I’m pretty sure some religions are more deserving of protection than others, even if the governor does better at keeping the quiet part quiet than Harmeet Dhillon did.
Long story short: the federal magistrate judge rejected five of the eight arrest warrants presented by DOJ prosecutors, including the two targeting Don Lemon and his producer. Rejected arrest warrants are probably even less common than rejected search warrants. But the DOJ continues to fail its way into history under AG Pam Bondi and the second Trump administration.
Like search warrants, those presenting them to judges have options when judges reject their offerings. They can revise them, perhaps sprinkling them with a bit more probable cause or other connective tissue. Or they can decide to buttress apparently bogus charges by talking a grand jury into signing off on an indictment.
But with grand juries brushing off the DOJ repeatedly in recent months and prosecutors desperate to keep winning the battle of headlines, the DOJ went an entirely different direction — a direction so unexpected and unprecedented that the state’s top federal judge felt compelled to write two letters to the Eighth Circuit Appeals Court. Not only did the DOJ ask the Appeals Court to directly review the warrants that had been directed, it did this without notice to the lower court and asked the appeals court to seal its request to keep it from being made public.
That put Chief Judge Patrick Schiltz (a George W. Bush appointee) in the position of having to file an emergency communication of his own with the court, which was followed shortly thereafter by a longer email with more details about the DOJ’s actions. Both letters are detailed in Steve Vladeck’s extremely informative post on this string of events, which includes this chilling description of the DOJ attempted to do:
[C]hief Judge Schiltz is a highly regarded jurist who could not be accused of having an axe to grind against the current administration. And that’s all the more reason why everyone, but especially his colleagues across the federal judiciary, ought to take seriously a pair of letters he filed on Friday in response to an extraordinary (in multiple senses of the word) attempt by the Department of Justice to end-run long-settled understandings of basic criminal procedure in order to bring federal criminal charges against individuals who protested inside a St. Paul church last Sunday.
The Schiltz letters are striking not only because of who wrote them, but because of the deeply unprofessional behavior they describe.
The first letter opens with this:
I am working from home today, as the program that my mentally disabled adult son attends each day is closed because of the extreme cold At 11:34 am, I received an email regarding Case No. 26-1135, entitled “In re: United States of America.” The order in its entirety read:
The motion of the United States to seal is granted. The Chief Judge of the United States District Court for the District of Minnesota is invited to file a response, at his discretion, to the petition for writ of mandamus. Any response is due by 2:00 p.m. Friday, January 23.
This is the first that I have heard of any petition for a writ of mandamus. The United States did not have the courtesy to tell me that they would be filing such a petition, nor did the United States serve the petition on me. I am unable to access any documents in Case No. 26-1135 because, at the request of the United States, the case is sealed-apparently even from me. So I have been given about two-and-one-half hours to respond to a mandamus petition that I have not read and cannot read.
Apparently I am supposed to guess what the petition is about and guess what the mandamus petition says and then respond.
On the evening of Tuesday, January 20, five of the eight arrest warrants were rejected by the magistrate judge. Within “minutes,” the DOJ prosecutor was demanding an immediate review of the magistrates’ rejections. The review was assigned to Judge Schiltz, who told the DOJ that because what it was demanding was “unprecedented,” he would hold a bench meeting with the other district judges to decide how to proceed.
Somewhat ironically, that meeting was postponed due to “security concerns” related to the arrival of both J.D. Vance and AG Pam Bondi in Minneapolis, along with protests at the courthouse where two church protesters were scheduled to make their initial appearances. The meeting was postponed to January 27th.
That wasn’t good enough for the DOJ, which had headlines it wanted to keep making. So, it went directly to the Appeals Court, said some extremely disingenuous stuff about “national security” and the ongoing danger of church disruptions if it wasn’t able to arrest three more protesters immediately. (It appears to have given up on locking up Don Lemon.)
Judge Schiltz’s follow-up email shreds the government’s justifications for immediate judicial review of its rejected arrest warrant:
The government’s arguments about the urgency of its request makes no sense. As the government says, “dozens” of protestors invaded Cities Church on Sunday. The leaders of that group have been arrested, and everyone knows that they have been arrested. The government says that there are plans to disrupt Cities Church again on Sunday. Of course, the best way to protect Cities Church is to protect Cities Church; we have thousands of law-enforcement officers in town, and presumably a few of them could be stationed outside of Cities Church on Sunday. The government does not explain why the arrests of five more people – one of whom is a journalist and the other his producer – would make Cities Church any safer, especially because that would still leave “dozens” of those who invaded the church on Sunday free to do it again.
Judge Shiltz should be commended for making sure all of this ends up the permanent record. The government tried to bury its attempt to bypass the normal chain of judicial command, but that has only led to it being further exposed as the thugs they are and definitely intend to be. The DOJ is supposed to hold the law in utmost esteem. But this version continues to act as though the law is whatever it says it is.
For now, the DOJ will still need to wait for a review of its deficient warrants by the lower court. The Appeals Court has rejected its end-around effort, albeit without saying anything more than it might be a little premature. But what was actually said by a judge concurring with the rejection of the writ of mandamus isn’t exactly heartening:
“The Complaint and Affidavit clearly establish probable cause for all five arrest warrants, and while there is no discretion to refuse to issue an arrest warrant once probable cause for its issuance has been shown … the government has failed to establish that it has no other adequate means of obtaining the requested relief,” Grasz wrote.
Hey, Judge Grasz, if you’re concurring with the rejection of an “emergency” review of the merits of rejected search warrants, maybe you should keep your views on the merits to yourself. Unless, of course, you’re just signalling the Trump Administration that it should speed run the alternatives so the warrants can receive your thumbs up once they return to the appellate level.
For now, the warrants are dead. Unfortunately, the DOJ will have probably moved on to some new horrific thing before these get a second pass by the district court.
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Filed Under: 1st amendment, 8th circuit, doj, ice, kristi noem, mass deportation, minnesota, patrick schlitz, trump administration, vindictive prosecution
