Judge Dugan, Charlie Chaplin, and the Claim of Judicial Immunity From Criminal Prosecution

After the FBI arrested Milwaukee County Circuit Judge Hannah Dugan at the end of April for allegedly assisting a noncitizen to evade federal immigration officials, a grand jury indictment charged her on May 13 with one count of obstruction and one count of concealing a person from arrest. The next day, Dugan’s attorneys moved to dismiss the indictment, claiming that the “problems” with her prosecution were “legion” but that “most immediately” Dugan was entitled to “judicial immunity for her official acts.” Citing the Supreme Court’s decision last summer in Trump v. United States (disclosure: I was one of the attorneys who litigated that case), Dugan claims a judicial immunity from criminal liability that functions as “an absolute bar to the prosecution at the outset.” 

Dugan’s judicial immunity claim finds no support in Trump or any of the other cases cited in her dismissal motion. And for good reason. Whatever one thinks of the merits of Judge Dugan’s prosecution, imagine a case where a judge engaging in unquestionably official judicial acts—adjudicating a pending claim or sentencing a defendant—accepts a bribe to decide the claim or sentence the defendant in a particular way. Surely that judge, if prosecuted, should not be able to turn around and claim that he or she is cloaked in absolute judicial immunity and thus outside the reach of criminal law. Courts have accordingly roundly rejected the argument that judges can invoke immunity from criminal prosecution.

But there is one exception. Dugan’s dismissal motion does not cite it, but there actually is a case from more than 80 years ago holding a city court judge immune from criminal prosecution where he acted “in his judicial capacity and within his jurisdiction.” That case was an alleged criminal conspiracy involving the city court judge and many others—including, amusingly, the legendary actor Charlie Chaplin. The federal district court judge in that case concluded that the city judge was immune from criminal prosecution where the relevant conduct was imposing a sentence and probation on a defendant who had pleaded guilty. That reasoning is unpersuasive and does not survive subsequent jurisprudential developments. But the Chaplin case itself resulted in the actor’s acquittal and the dismissal of charges against all other defendants, and it serves as a cautionary tale of an overzealous federal prosecution gone awry. Even if Dugan’s judicial immunity claim fails, the government’s rushed investigation and hasty decision to prosecute could lead to a similar outcome in her case. 

Judge Dugan’s Immunity Claim

The basic facts underlying the prosecution do not appear to be in dispute, though how to understand what happened and certain nuances will matter if the case moves forward to trial. Federal immigration authorities learned that a noncitizen subject to removal, Eduardo Flores-Ruiz, was scheduled to appear before Judge Dugan on April 18. Federal officers secured a warrant for his arrest on immigration grounds and made plans to execute the arrest in a public area outside of the courtroom—Courtroom 615—where Dugan then presided (she has since been temporarily suspended by the Wisconsin Supreme Court) at the Milwaukee County Courthouse. After being told that the federal officers were stationed outside her courtroom, Dugan and another judge confronted the officers, ultimately directing them to speak with the chief judge. While the officers—except for one, who does not appear to have been identified as a federal officer—were in the chief judge’s chambers, Dugan allegedly directed Flores-Ruiz and his attorney to leave Courtroom 615 through a side door, albeit a door that ultimately put Flores-Ruiz and his attorney back in the public hallway. There they were spotted, and, following a brief pursuit outside the courthouse, the federal authorities detained Flores-Ruiz. 

The indictment on May 13 charged Dugan with violating two statutes. First, she faces the misdemeanor offense of “conceal[ing]” Flores-Ruiz to prevent his “discovery and arrest” while knowing that a warrant for his arrest existed. The second and more serious charge in the indictment is for violating 18 U.S.C. § 1505 by “corruptly endeavor[ing] to influence, obstruct, [or] impede” Flores-Ruiz’s “administrative arrest” by federal authorities. The indictment further alleges that Dugan committed five “affirmative acts to assist [Flores-Ruiz] to evade arrest”:

• Confronting the federal officers and “falsely telling” them that to arrest Flores-Ruiz, they needed a “judicial warrant” instead of the administrative immigration warrant they had obtained;
• Directing the federal officers away from the public hallway outside Courtroom 615, where they planned to make the arrest, and to the chief judge’s chambers;
• Handling Flores-Ruiz’s criminal case “off the record” while the federal officers were in the chief judge’s chambers;
• Directing Flores-Ruiz and his attorney to leave Courtroom 615 “through a non-public jury door”; and
• Permitting Flores-Ruiz to appear by Zoom for his next court appearance.

Acting quickly, Dugan filed a motion to dismiss the indictment a day later. (In a typical federal criminal case, it is not unusual for a judge to set a deadline for pretrial motions that is months after the indictment, particularly where, as here, the defendant is not in custody.) Describing her prosecution as “virtually unprecedented and entirely unconstitutional,” Dugan’s dismissal motion advances two central arguments: (a) immunity for official judicial acts precludes her prosecution and (b) principles of “federalism and comity” do not allow federal law to “reach[] directly into a state courthouse.” The discussion that follows focuses on the immunity claim; suffice to say that the second argument is highly unlikely to succeed in a case involving the alleged interference with federal immigration authorities.

Dugan’s dismissal motion articulates a series of unobjectionable premises. Citing Trump v. United States, it correctly describes immunity as protection from having to face a prosecution at all, not a defense on the merits to be considered by a judge or a jury. It asserts that judges have wide discretion to maintain control over their courtrooms. And it cites a string of cases dating back centuries that establish the proposition that judges have absolute judicial immunity from civil liability for judicial acts within their jurisdiction. That’s a sensible rule, as those cases explain, because it prevents litigants who are frustrated or disappointed with judicial action—whether it be a ruling or an order to remove someone from a courtroom or something else—from filing frivolous lawsuits designed to harass the judge.

From those premises, however, Dugan’s dismissal motion leaps to the conclusion that the long history of absolute judicial immunity from civil liability for official acts means she is immune from criminal prosecution as well. The motion then contends that Congress in enacting the criminal statutes with which she is charged did not abrogate the “bedrock immunity” to which she is entitled. But Dugan’s motion neither explains why the understandable judicial immunity from civil suit should apply in the criminal context nor engages with the many judicial decisions (discussed below) that have rejected precisely that argument. And if there’s no “bedrock immunity” from criminal prosecution for judges, then congressionally enacted criminal prohibitions apply to them just as they do to any other individual ... except a former president.

Which brings us back to the Supreme Court’s decision in Trump v. United States last summer. One could argue that Trump v. United States supports Dugan’s proposed transplanting of civil immunity for official acts into the criminal context. Coming into that case, the parties all agreed that, under Nixon v. Fitzgerald, a president was absolutely immune from civil suit for official conduct while in office; the question was whether any official-act immunity similarly shielded a former president from criminal liability. Emphasizing the president’s “unique position in the constitutional scheme” and the “great[] threat of intrusion on the authority and functions of the Executive Branch” posed by a criminal prosecution, the Supreme Court in Trump held that a president is absolutely immune for presidential actions “within his exclusive constitutional power” and presumptively immune for presidential actions “within the outer perimeter of his official responsibility.” In other words, the Court’s rationale for extending civil immunity to the criminal context hinged considerably on its view that “the system of separated power designed by the Framers has always demanded an energetic, independent Executive.” Dugan’s motion offers no account of why a similar rationale should apply to judges.

Judicial Rejection of Judicial Immunity 

Nor could Dugan offer a persuasive argument for judicial immunity from criminal prosecution. The courts that have confronted the issue have with near uniformity rejected the claim, with the Supreme Court explaining the handful of times it has considered the question that the existence of civil immunity for officials such as judges and prosecutors does not insulate those officials from the consequences of unlawful conduct precisely because those officials “are subject to criminal prosecutions as are other citizens.” That reasoning flips Dugan’s argument on its head: The “long line of [the Supreme Court’s] precedents” acknowledging judicial immunity from civil suit on which Dugan relies is permissible precisely because the Supreme Court has “recognized that a judge is not absolutely immune from criminal liability.”

A similarly long line of judicial prosecutions confirms that the judicial immunity from criminal prosecution that Dugan posits doesn’t exist. In the 1930s, federal prosecutors secured a conviction of Martin Manton, then a federal judge in New York who accepted “sums of money in return for corrupt judicial action ... favorable to the interests of those who paid.” In the 1980s, Alcee Hastings, at the time a district court judge in Florida, accepted a bribe to reduce a defendant’s sentence and to revoke an order forfeiting some of the defendant’s property. Around the same time, Harry Claiborne, then a district court judge in Nevada, accepted a bribe from a Las Vegas brothel owner in exchange for a favorable ruling. Later in the same decade, Robert Collins, while a district court judge in Louisiana, accepted a bribe to impose a more lenient sentence. Other examples exist. And every time a prosecuted judge raised an immunity claim, the courts rejected it. (Dugan’s motion doesn’t cite any of these cases.) 

Rather than swing for the fences by seeking absolute judicial immunity from criminal prosecution, Dugan might have considered a more nuanced argument that one federal appellate judge has endorsed. An appellate court overturned the criminal contempt conviction of a superior court judge in the Virgin Islands on the grounds either that the First Amendment protected his conduct (publishing an opinion criticizing the Virgin Islands Supreme Court) or that the evidence was insufficient to establish contempt (in connection with a judicial recusal). In a concurrence, Judge Jane Roth articulated her view that “absent bribery or corruption, the importance of judicial independence warrants application of the doctrine of absolute judicial immunity to criminal liability for judicial acts performed within a judge’s jurisdiction.” Under that approach, which as the view of a single judge on a multimember appellate panel is not precedential, the cases described above involving judges accepting bribes or otherwise undermining the judicial system while nonetheless engaged in official acts would not warrant immunity, but official judicial conduct free from bribery or corruption would. Dugan could emphasize, as her motion does in part, that the official judicial conduct for which the federal government seeks to prosecute her involves not accepting bribes but instead simply policing who can be in and near her courtroom.

That narrower argument, however, would likely not help Dugan in this case. As has been widely reported, the conduct giving rise to Dugan’s case bears many similarities to the prosecution of Shelley Joseph, a Massachusetts state judge. In 2018, Joseph allegedly enabled a noncitizen that an Immigration and Customs Enforcement (ICE) officer was attempting to arrest on an immigration warrant to leave through the back door of her courtroom rather than through the main exit where the ICE officer was waiting. Less widely reported is that Joseph, like Dugan, argued that judicial immunity shielded her alleged conduct from criminal prosecution. The judge presiding over Joseph’s case rejected that argument in a paragraph, noting that although the government and Joseph “hotly contest[ed] whether judicial immunity insulates against criminal liability or is restricted to civil lawsuits,” he did not need to resolve that question because even if any such immunity from criminal prosecution existed, it would not aid Joseph. Referring to Judge Roth’s view that no immunity would reach “corruption or bribery,” the judge in Joseph’s case noted that the indictment charged her with “corruptly” obstructing the immigration proceedings. Dugan, whose indictment likewise alleges that she “corruptly” obstructed federal immigration proceedings, faces the same hurdle. (The misdemeanor offense for concealing Flores-Ruiz from arrest does not statutorily require proof of corrupt conduct, so if Lynn Adelman, the judge presiding over Dugan’s case, adopts Roth’s view, he could in theory find that judicial immunity precludes prosecution on that count.)

The upshot is that Dugan’s dismissal motion fails to address multiple cases rejecting her claim that judicial immunity applies in the criminal context or cite even a single case that has recognized such an immunity. But she is not totally out of luck. There is, indeed, a single federal case recognizing judicial immunity from criminal prosecution.

Charlie Chaplin to the Rescue? 

Enter Charlie Chaplin. The pathbreaking silent film actor and creator of the “Little Tramp” went on trial in the 1940s in what a recent book by Diane Kiesel, a retired New York state judge, has described as a “trial of the century” on par with the Lindbergh baby kidnapping or the O.J. Simpson case. The central charge against Chaplin was that he violated the Mann Act by traveling between California and New York to have sex with an aspiring actress, Joan Berry. Chaplin was also charged with “conspiring with cronies to convince a Beverly Hills judge to run [Berry] out of town when she wouldn’t stop her harassment campaign against him.”

The aggressive U.S. attorney handling the case, Charles H. Carr, also charged the Beverly Hills judge, Charles Griffin. Based on the account in Kiesel’s book, Griffin’s inclusion in the conspiracy is hard to understand. Berry appeared before him in January 1943 after she had been arrested on vagrancy charges. When one of Chaplin’s retinue asked through an intermediary that Griffin declare Berry a vagrant and order that she leave California, Griffin reportedly said that he “would not allow Chaplin to run his courtroom.” When Berry, who was not represented by counsel, pleaded guilty, Griffin required as part of her sentence that she remain outside of Beverly Hills for two years and pay several outstanding hotel bills. Griffin later cooperated with Carr’s investigation and testified for several hours before a federal grand jury. Yet he found himself, along with Chaplin and several others, charged with conspiracy.

Carr proceeded to trial first against Chaplin alone on the Mann Act count. As Kiesel recounts, the trial was a splashy and publicity-fueled affair that ultimately resulted in Chaplin’s acquittal. It also surfaced several problems with the prosecution. Berry proved an inconsistent and largely unreliable witness. The prosecution appeared part of a larger effort by the federal government to target Chaplin for his perceived sympathy with communism. Following the jury verdict, several high-level Justice Department officials—including the notoriously hard-charging FBI director J. Edgar Hoover, who was no fan of Chaplin’s—urged Carr to drop the remaining counts charging a conspiracy to drive Berry out of Beverly Hills.

It was in this context—after the verdict on the Mann Act charge but before the conspiracy case moved to trial—that Judge J.F.T. O’Connor, presiding over the criminal trials, issued his ruling that Griffin was immune from criminal prosecution. Writing in 1944, O’Connor had not found “any decision directly” addressing judicial immunity for criminal prosecution but was “assisted” by decisions “where judges have been sued by disappointed litigants in their courts” and been found to be immune. After canvassing several civil cases upholding judicial immunity, O’Connor briefly acknowledged a different rule in the criminal context: “where a judge violates a criminal statute, he is held to the same responsibility as any citizen.” Yet rather than apply that straightforward principle to the criminal case before him, Judge O’Connor made clear what concerned him about the Chaplin prosecution: “A decision in favor of the Government in the instant criminal actions would place the official action of every justice of the peace, municipal or city court judges, Superior Court judges, Appellate Court judges and Supreme Court judges in our country at the mercy of a United States Attorney.” And in language that surely resonates with those critical of Judge Dugan’s prosecution, O’Connor worried that ruling for the government in the Chaplin case “would be to destroy the independence of the judiciary and mark the beginning of the end of an independent and fearless judiciary.”

Evaluating Judge O’Connor’s decision more than 80 years later, Kiesel—again, herself a retired judge—properly notes that his analogy was not “apt.” Unlike where a “disgruntled litigant, unhappy with a decision, filed suit against a judge, which if entertained would have a chilling effect on judicial independence,” the prosecution of Griffin in the Chaplin case involved a judge indicted “for the crime of violating the legal rights of a defendant as a favor to a Beverly Hills celebrity.” Nonetheless, at the time, Carr and the Justice Department officials closely following the Chaplin prosecution back in Washington, D.C., got the message: The government moved to dismiss the remaining charges against the remaining defendants. The case went away.

The reasoning behind Judge O’Connor’s conclusion that judicial immunity shielded Griffin from criminal prosecution didn’t hold water at the time, as subsequent decisions from the Supreme Court and other courts confirm. In that respect, the Chaplin case should not be understood as meaningfully supporting Judge Dugan’s similar claim that she too should be immune from criminal prosecution for judicial acts. Indeed, a finding that Dugan benefits from judicial immunity in her criminal case risks not only placing her above the law but also setting a pernicious precedent that could shield judicial misconduct moving forward.

But the failed Chaplin prosecution offers another lesson, one that could prove relevant for Dugan’s case. A rushed investigation by an aggressive prosecutor more interested in making a headline than in doing justice is a recipe for a failed prosecution. It is too early to tell if that dynamic, which ultimately torpedoed the case against Chaplin, Griffin, and others, is at play in Dugan’s case. But some early signs are concerning. Even if the government prevails on Dugan’s judicial immunity claim, securing a conviction is far from assured.