Blanche Files Misconduct Complaint Against Seven Minnesota Judges Over Times Interview

Attorney General Todd Blanche said Wednesday that the Justice Department has filed a judicial-misconduct complaint with the Eighth Circuit against seven Minnesota federal judges over their participation in a New York Times interview about the Trump administration’s immigration crackdown.

The complaint names Chief Judge Patrick Schiltz, appointed by President George W. Bush, and Judge John Tunheim, appointed by President Bill Clinton, along with other district judges who took part in the interviews. The department asked the circuit’s Judicial Council to investigate and to order Schiltz and Tunheim to recuse themselves from Department of Homeland Security immigration cases, arguing that their impartiality could reasonably be questioned.

“These judges talked to the media, or at least The New York Times, about cases, some of which are ongoing, in a manner which the Department views as a clear violation of their ethical duties,” Blanche said.

The interview ran on Sept. 17. Schiltz, Tunheim, and six other Minnesota federal judges discussed the surge of habeas petitions that followed Operation Metro Surge. Schiltz sat for a nearly 90-minute interview. The Justice Department’s complaint cites comments attributed to him describing the administration’s actions as threatening “the constitutional order” and “the rule of law,” and remarks from Tunheim criticizing immigration arrests. The department says those statements violated the Code of Conduct for United States Judges by commenting publicly on pending matters and creating the appearance that the judges had prejudged issues likely to come before them.

Whether any judge is removed from a case is not the Justice Department’s decision. Under the judiciary’s misconduct rules, the chief judge of the circuit — Steven Colloton, a Bush appointee, on the Eighth Circuit — first decides whether a complaint is dismissed or sent to a special committee. A committee’s findings go to the circuit Judicial Council. The Administrative Office of the U.S. Courts says the misconduct process cannot be used to obtain automatic disqualification of a judge or to relitigate a ruling.

Chad Mizelle, chair of litigation at the America First Policy Institute, wrote that judges have been taken off cases before for press comments that created an appearance of bias. He pointed to the D.C. Circuit’s removal of Judge Thomas Penfield Jackson from the Microsoft case after embargoed interviews in 2001, which the court called “deliberate, repeated, egregious and flagrant.”

Minnesota Attorney General Keith Ellison rejected that frame. “This complaint has nothing to do with judicial ethics and everything to do with political punishment,” he said. Ellison said Blanche and President Trump are trying to punish judges who ruled against the government during Operation Metro Surge, including findings of noncompliance with court orders, and noted that the court sometimes ruled for the government.

The filing does not itself reassign a single petition. It does put a formal accusation in front of the Eighth Circuit: that judges who are still hearing detention and habeas cases spoke to a newspaper about the enforcement campaign those cases concern, and that two of them should step off the Homeland Security docket.