• Milwaukee County Circuit Court Judge Hannah Dugan was arrested by federal agents last week.
• The authors argue this arrest is an abuse of power by the Trump administration, echoing the Fugitive Slave Act case of Joshua Glover.
• The authors believe the case against Judge Dugan is weak, suggesting it’s an attempt to intimidate judges who oppose the administration’s immigration policies.

The federal government arrested and criminally charged Milwaukee County Circuit Court Judge Hannah Dugan last week. The arrest of Judge Dugan, in a state courthouse, is an unfounded power play — an effort to intimidate — by the Trump administration. It raises profound policy questions and threatens the fair administration of justice. It also stirs deep echoes from Wisconsin history — ones unflattering to the administration.

More than 170 years ago, in Wisconsin’s first years as a state, another dispute about the extent of federal power played out in Milwaukee. Congress had passed a law, the Fugitive Slave Act, requiring states that did not recognize slavery (like Wisconsin) to help facilitate the return of escaped slaves.

Joshua Glover had escaped enslavement on a Missouri plantation. He was living and working in Racine. Nearly two years after Glover’s escape, in the spring of 1854, the plantation owner learned that Glover was in Racine. He had federal marshals sent to arrest Glover and return him to servitude. 

Glover never returned to Missouri. Upon his arrest, he was transferred to a Milwaukee jail to await a hearing. (Even at one of our country’s lowest points, due process was recognized as essential to the rule of law.) An abolitionist newspaper editor, Sherman Booth, rallied a crowd, which broke Glover out of jail and helped him set sail for Canada, where he lived the remainder of his life in freedom. 

Glover case shows how federal power can be abused

The federal government arrested Booth on charges of assisting Glover’s escape in violation of the Fugitive Slave Act. Booth’s lawyer challenged the arrest, both because it was executed based on an administrative warrant rather than one issued by a court (a matter of significant discussion again today) and because Booth deemed the Fugitive Slave Act unconstitutional. A single justice of the Wisconsin Supreme Court heard the case in the first instance. He ruled for Booth. The full Wisconsin Supreme Court reviewed the ruling and affirmed it. 

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That began a showdown about states’ rights and the limits of federal power. A federal grand jury was convened and returned new charges against Booth and the individual who had actually broken down the jailhouse door to free Glover from custody. After both men were convicted, the Wisconsin Supreme Court ordered them released.

The U.S. Supreme Court reversed both Wisconsin rulings, and a long and complex tug-of-war ensued with Wisconsin’s legislature and courts resisting the federal position. The matter was finally resolved, on the eve of Abraham Lincoln’s inauguration, when President James Buchanan pardoned Booth. 

Today, the facts are different, but the instinct to abuse federal power is the same — as is Wisconsin’s instinct to resist. Wisconsin has a deep history that favors both demanding due process and protecting individual liberty. The nineteenth century Wisconsinites who stood firm in the face of federal pressure were ultimately vindicated. Judge Dugan now finds herself in that lineage.

Federal case against Judge Dugan factually and legally flimsy

Based on the limited information publicly available, the government’s case against Judge Dugan appears factually and legally flimsy. According to the complaint, Judge Dugan directed federal agents to clear their warrant and activities with the Chief Judge of the Milwaukee County Circuit Court. And she directed the object of the warrant into a public hallway where federal agents were waiting. If the agents had wanted to arrest him immediately, they could have; instead, after a bit of bumbling, they arrested their target outside of the courthouse. 

At most, Judge Dugan may have caused the administration’s agents a minor inconvenience and a slight detour. This inconvenience does not become obstruction of justice — no matter how much the Trump administration pounds the table. Like Samuel Booth generations earlier, Judge Dugan stood up for liberty and due process, and federal efforts to prosecute her are drawing public condemnation. 

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Why would the Trump administration charge the case at all on these facts? To create public theater and promote intimidation. The administration, handed one loss after another by federal judges across the country on its draconian and unconstitutional approach to immigration enforcement, has found a flimsy excuse to lash out at a different judge. Attorney General Pam Bondi made this abundantly clear in her remarks about the case, labeling judges opposing Trump as “deranged” and characterizing Judge Dugan’s arrest as “sending a very strong message.” 

Like the effort to return Joshua Glover to slavery, this is a bad case, built on bad law, pursued for bad reasons. We don’t yet know every detail about the decision to target Judge Dugan. But we know enough. Her lawyer, who was President George W. Bush’s appointed U.S. Attorney for Wisconsin’s Eastern District, said Friday that Judge Dugan will “defend herself vigorously and looks forward to being exonerated.” He also noted that she “has committed herself to the rule of law and the principles of due process for her entire career as a lawyer and a judge.” In that, she is squarely aligned with a storied Wisconsin tradition.

Wisconsin has been here before. Our state didn’t fold then. We shouldn’t now.

Jeffrey A. Mandell is President & General Counsel of Law Forward. Norman Eisen is Co-founder and a Board member of State Democracy Defenders Fund.