DOJ says Milwaukee judge accused of helping undocumented immigrant evade arrest not immune from criminal prosecution

Federal prosecutors argued Monday that a court should reject a Wisconsin judge's attempt to have the obstruction case against her dismissed based on judicial immunity.

Milwaukee County Circuit Court Judge Hannah Dugan, 65, was arrested by the FBI on April 25 and is charged with concealing a defendant, Eduardo Flores-Ruiz, to prevent his arrest by immigration authorities.

Prosecutors contend that her motion to dismiss the charges ignores "well-established law that has long permitted judges to be prosecuted for crimes they commit," according to court documents.

"Her state judicial post is not a license to engage in conduct that violates federal criminal law," wrote Richard Frohling, the Acting U.S. Attorney for the Eastern District of Wisconsin.

The government's filing also takes aim at Dugan's claim that federal agents on April 18 disrupted active proceedings in her courtroom when they showed up in the courthouse seeking to arrest Flores-Ruiz on alleged immigration violations, arguing that it was Dugan "who took it upon herself to interfere with the federal agents' performance of their responsibilities," according to the filing.

Prosecutors allege that "Dugan chose to pause an unrelated case, leave her courtroom, disrupt proceedings in a colleague's courtroom to commandeer her assistance, and then confront agents in the public hallway."

The filing goes on to allege that Dugan directed agents through a set of double doors to the chief judge's office even though she knew the chief judge was not in the office. "Dugan quickly returned to her courtroom and, among other things, directed E.F.R.'s attorney to 'take your client out and come back and get a date' and then to go through the jury door and 'down the stairs' before physically escorting E.F.R. and his attorney into a non-public hallway with access to a stairwell that led to a courthouse exit," stated the filing, which refers to Flores-Ruiz by his initials. "She did this all just days after thanking a colleague for providing information which explained that ICE could lawfully make arrests in the courthouse hallway."

The filing is the first time federal prosecutors have alleged that Dugan instructed the man to go "down the stairs," and the first time they have referenced access to a stairwell leading to an exit.

Video from more than two dozen surveillance cameras at the Milwaukee County Circuit Court, obtained by ABC News through a public records request, shows the man and his attorney did not, in fact, take the stairs after the encounter with the judge but exited a private door that led to a public hallway. From there, the video shows the man and his attorney take the elevator down to the court's main floor while being followed by federal agents. The videos obtained by ABC News do not have sound.

Flores-Ruiz, who was due to appear before Dugan that day on a battery charge, was captured outside the court building after a brief foot chase.

"Put simply, nothing in the indictment or the anticipated evidence at trial supports Dugan's assertion that agents 'disrupted' the court's docket; instead, all events arose from Dugan's unilateral, non-judicial, and unofficial actions in obstructing a federal immigration matter over which she, as a Wisconsin state judge, had no authority," prosecutors said in the filing.

In the filing, the prosecution argues that even if judicial immunity applied in this case, it would "not help Dugan" because her actions "went well beyond her official role when she endeavored to prevent federal law enforcement officers from executing a valid arrest…in a public area of the Milwaukee County Courthouse."

Dugan has pleaded not guilty to the charges, and a trial date is set for July 21.

Lawyers for Dugan, in part citing the U.S. Supreme Court's decision in President Donald Trump's immunity case, have argued she has judicial immunity for official acts and that her prosecution is unconstitutional.

"The problems with this prosecution are legion, but most immediately, the government cannot prosecute Judge Dugan because she is entitled to judicial immunity for her official acts," her attorneys wrote in a motion to dismiss filed last month. "Immunity is not a defense to the prosecution to be determined later by a jury or court; it is an absolute bar to the prosecution at the outset. The prosecution against her is barred. The Court should dismiss the indictment."

The Wisconsin Supreme Court suspended Dugan in the wake of her arrest, stating in an order that it found it was "in the public interest that she be temporarily relieved of her official duties."