Feds: find us that probable cause, and make it snappy
Judges not giving you the go-ahead to arrest someone? Turn the screws on them.
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 efforts to push around the independent federal judiciary.
After dozens of demonstrators invaded and disrupted services at Cities Church last Sunday, the U.S. 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 videographer. A U.S. magistrate judge examined the facts and agreed to issue warrants for the arrest of the ringleader of the group and two others -- so far so plausible, since a 1994 federal law specifically makes interference with or obstruction of church services a federal offense. 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 aide, given what was known of their conduct.
There ensued an extraordinary series of events in which the government went to chief judge (and double Scalia clerk) Patrick Schiltz of the Minneapolis federal court, demanding he override the magistrate. Schiltz said he would want a few days to consult with his colleagues and asked the government to brief its position, since overriding a magistrate’s finding in these circumstances appeared wholly novel. 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.
This is one of many instances in which Pam Bondi’s crew have 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. Steve Vladeck tells the story in more detail here. And Schiltz’s two letters, which are masterfully written, are very much worth reading.
Vladeck argues 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 a fuller file of evidence and legal analysis and take it back to the magistrate, or they can go instead to a grand jury (of which one is meeting this week in Minneapolis). One possibility is that DOJ isn't sure it could get its way from a grand jury either -- this in the light of refusals by grand juries in many parts of the country to play their usual role of blessing charges. Vladeck’s inference -- not charitable, but I would hesitate to call it wrong -- is that it 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.
