A QUICK TOUR OF THE WEEK’S LEGAL NEWS—AN ANALYSIS

A QUICK TOUR OF THE WEEK’S LEGAL NEWS—AN ANALYSIS

 

INTRODUCTION

This week saw several issues thrust onto the legal landscape. The Supreme Court ruled on Friday that the Alien Enemies Act deportations are on hold but for a procedural reason that has been misread by the lay media. Universal injunctions were considered in the context of the lower court rulings on the unconstitutionality of President Trump’s birthright citizenship executive order (I’ll treat that in a later blog), Wisconsin judge Hannah Dugan raised a specious “judicial immunity” defense, and finally, former FBI director James Comey showed us all how stupid and mendacious he is all in one batch of seashells. Read on, and I do not apologize for my analysis based on existing law and my training and beliefs. We must remember that political issues do not always translate into a true legal analysis. We are a nation of laws, and they must be objectively applied no matter how much a majority of us may despise the subject of any investigation.

 

SUPREMACY CLAUSE ONE (1)—JUDGE DUGAN ZERO (0)

The facts underlying the well-taken indictments issued against Hannah Dugan can be reviewed along with the criminal complaint in an earlier edition of this blog, and they will not be duplicated here. The indictment simply states that “Whoever harbors or conceals any person for whose arrest a warrant or process has been issued… after notice or knowledge of the fact that such warrant… has been issued for the apprehension of such person… shall be fined… or imprisoned.” 10 U.S.C. 1071.

This week her legal team filed a motion to dismiss, claiming “judicial immunity,” a doctrine that confers judicial immunity on judges for acts within their jurisdiction and taken within their official capacity. It is primarily used to protect judicial independence and is most often raised if their rulings are challenged in state or federal court outside of normal appeals, such as in alleging a civil rights violation as the result of a ruling. This case in no way implicates such immunity. My friend and leading constitutional scholar Ilya Shapiro appeared on Shannon Bream’s Fox show on Sunday and termed the case against her clear-cut and essentially a slam dunk. I agree, and here’s why:

• The Supremacy Clause of the Constitution requires state and local actors to comply with the Executive Branch’s immigration enforcement initiatives;
• Although the Tenth Amendment reserves to state and local officials the prerogative to not cooperate in immigration enforcement, it does not give them leave to obstruct in an overt way such actions;
• The Criminal Complaint against Judge Dugan sets forth in detail that she had actual knowledge that a team of federal officials had a valid administrative warrant to arrest and detain Eduardo Ruiz, a bad actor charged with serious assault charges and who was to appear along with the victims for what is an initial appearance pursuant to Wisconsin law;
• She knew this and should have known that Congress authorizes specially trained ICE agents to issue such warrants pursuant to the authority granted to the Attorney General but insisted they needed a “judicial warrant”—wrong;
• She directed the agents angrily to the chief judge, who confirmed that an arrest may take place in the hallway or any other public place, even though most spaces in any courthouse are undisputably public places;
• She adjourned the hearing, leaving the victims hanging, and didn’t even alert the District Attorney. It is here her so-called “immunity” ends, if it ever existed;
• The agents waited patiently while she led the subject out of a restricted jury assembly area, and he left the courthouse to be apprehended after a foot pursuit on a public street. She endangered the federal agents in doing so.

Checkmate. She was no more than any citizen obstructing lawful federal process. Her jurisdiction ended when she ended the proceeding involving Ruiz, and she was not performing any official act. She claims she was “clearing the courtroom.” She clearly was not, and the state deputies who would have performed such an act and who permitted the federal agents to be there were in the dark. She is guilty and should enjoy no such immunity. She has been relieved of her duties and should be sanctioned and disciplined by the Judicial Commission as well as the Wisconsin Bar. This indictment sends a clear signal to all who do not understand that the federal executive has the authority to arrest and detain those deemed removable and to stay out of the way. Period.

 

JAMES COMEY IS A LIAR AND A FOOL—IT IS UNLIKELY HE WILL BE INDICTED UNLESS HE LIES TO FEDERAL AGENTS

18 U.S.C. 871 was passed with the express purpose of protecting the President, Vice President, and those in succession to the Presidency and imposes a five-year penalty on those who knowingly and willfully make a threat to kill, kidnap, or inflict bodily harm on those covered by the statute. I will discuss below the United States Supreme Court’s view of what such a true threat is in some cases, considering the application of this statute, which is seen as being in tension with the First Amendment, and the frequent vitriol that characterizes political speech in our society.

 

COMEY POSTS AN INSTAGRAM OF SHELLS ON A BEACH FORMING THE NUMBERS “8647”

This idiot posted this for the world to see and deleted it after he was condemned by officials who saw it as a clear threat uttered in a delicate time wherein the President was already nearly killed in at least two assassination attempts that we know about. Comey immediately backtracked and stated that he “ does not condone violence in any form” while deleting the post. He also clearly lied when he said he didn’t know what it meant and that he came across it on one of his strange sojourns that seem to characterize his retirement in disgrace. “86” has different meanings to different people. The dictionary refers to ejecting someone from a bar or restaurant. Some say it means to kill. It is this ambiguity and the passive nature of the shell array that will probably lead to non-prosecution. He has been questioned, and if he doubles down on lies, he may be indicted for lying to federal agents—the treatment he gave to General Flynn—and certainly will be visited by Secret Service Agents on a periodic basis if Don Bongino has his way. An indictment? Probably not. My hope is that Pam Bondi, as Attorney General, does not repeat the disingenuous lawfare that backfired on the Biden Administration and his lapdog Merrick Garland. Comey will suffer the consequences if he lies further and in the dismal sales of his upcoming “book.”

 

The Criminal Justice Resource Manual utilized by the Department of Justice to guide both attorneys and field agents seems to reflect the difficulties in obtaining convictions in the absence of clear and unambiguous “true threats.”

 

“Several decisions have cast light on the scope of 18 U.S.C. §871 and the requisite intent that must be proved in prosecutions thereunder. Proof that threatening words were uttered in a context such that a reasonable person would interpret them as mere political hyperbole, idle talk, or jest indicates that the words do not constitute a threat within the scope of the statute. However, it is the view of the Department that an actual intent to carry out a threat is not a requisite to violation of the statute.”

 

This results from the Supreme Court precedent outlining the parameters of the statute’s prohibitions when balanced against the First Amendment. The constitutionality of the statute was upheld in Watts v. United States, 394 U.S. 705, a 1969 case heard in the crucible of political protests at the height of the Vietnam War draft. The defendant uttered these words:

 

“They always holler at us to get an education. And now I have already received my draft classification as 1-A, and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is L. B. J. They are not going to make me kill my black brothers.”

 

An Army CID agent heard this and alerted the Secret Service. He was indicted and convicted for a violation of 18 U.S.C. 871, and he appealed. The Supreme Court reversed his conviction and ordered the charge dismissed. Seemed like a threat, right? The Court nonetheless stated:

 

“We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose ‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58 (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was ‘a kind of very crude, offensive method of stating a political opposition to the President.’ Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.”

 

While upholding the constitutionality and clear purpose of the law, the Court went on:

 

“The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H. R. Rep. No. 652, 64th Cong., 1st Session (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.”

 

The Fourth Circuit Court of Appeals also weighed in on the statute in United States v. Patillo, 431 F.2d 293 (1970), and followed the Watts holding, as it is bound to do. In that case, Patillo stated within earshot of federal agents that he wanted to kill Nixon if he had the opportunity. The case heard here in Norfolk considered the following colloquy with federal agents:

 

“Patillo said, ‘I will take care of him personally.’ Cherry asked how Patillo intended to accomplish that. Patillo did not directly respond but stated that ‘he would gladly give up his life doing it.’ Patillo further declared, in response to another question from Cherry, that getting close to the President would present no problem because ‘he (Patillo) did not need to get close to him (the President) to do it’.”

 

The conviction was reversed because the statement established no present intention to harm the President, nor was it communicated to him. The Court reviewed the decision in Watts:

 

“In deciding Watts, the Court recognized two major elements in the offense created by Congress in 18 U.S.C. Section 871(a). The first is that there be proved ‘a true threat,’ and the second is that the threat be made ‘knowingly and willfully,’ 18 U.S.C. Section 871(a).

We hold that where a true threat against the person of the President is uttered without communication to the President intended, the threat can form a basis for conviction under the terms of Section 871(a) only if made with a present intention to do injury to the President. Such intent may take the form of a bad purpose to personally do harm to the President or to incite some other person to do the injury. This is the most reasonable construction of the statute’s plain language viewed in light of Congress’ manifest purpose to protect ‘the safety of [the] Chief Executive.’ There is no danger to the President’s safety from one who utters a threat and has no intent to actually do what he threatens.”

 

It is against the backdrop of cases like this that formed the Resource Manual cited earlier and why Comey is not likely to face criminal indictment unless he lies to the interviewing agents and they can prove it. Yes, I despise the man too, but the requirements of criminalizing speech are strict in a nation that scrupulously protects political speech. What this bunch of seashells means is unlikely to lead to the courthouse and will be met with skeptical courts if it does.

 

ON FRIDAY, THE SUPREME COURT FURTHER STAYED ALIEN ENEMIES ACT DEPORTATIONS BUT ON PROCEDURAL GROUNDS

I have already opined that in a modern era of terrorist acts and irregular warfare that takes myriad forms, the Alien Enemies Act is proper as utilized by the Trump Administration as a vehicle to remove those who are the subject of a Presidential Proclamation “declaring the event” as set forth in the statute. The judiciary has no place in second-guessing the intelligence assessments of any President. This is a political act. Such a Proclamation removes the subjects of any Proclamation from the category of alienage and places them in the category of enemy actors. They have habeas rights but are not subject to immigration rules unless the Administration chooses to remove them under those statutes. Last week, United States District Judge Stephanie Haines in the Western District of Pennsylvania sustained the use of the Act and held that a “predatory incursion” by Tren de Aragua was within the Act’s prohibitions. There is now a split in the District Courts on the issue, and a ruling by the Supreme Court is inevitable. In the meantime, the cases that led to the removal to El Salvador in April remain unreviewed by the Fifth Circuit Court of Appeals. Because the District Court in that case did not have an opportunity to act on an injunction before the ACLU precipitated an appeal to the Fifth Circuit, the Fifth Circuit dismissed the appeals, stating that it lacked jurisdiction. The Supreme Court on Friday said they did and directed the Fifth Circuit to expeditiously review both the use of the Act and the manner of notice that is required even for Alien Enemies Act deportations. They doubled down on due process, and they seem anxious to get a shot at this line of cases to rule once and for all after the Fifth Circuit is done. They stated:

 

“[T]he Fifth Amendment entitles aliens to due process of law in the context of removal proceedings.” Trump v. J. G. G., 604 U. S. ___, ___ (2025) (per curiam). ‘Procedural due process rules are meant to protect’ against ‘the mistaken or unjustified deprivation of life, liberty, or property.’ Carey v. Piphus, 435 U. S. 247, 259 (1978). We have long held that ‘no person shall be’ removed from the United States ‘without opportunity, at some time, to be heard.’ The Japanese Immigrant Case, 189 U.S. 86, 101 (1903). Due process requires notice that is ‘reasonably calculated, under all the circumstances, to apprise interested parties’ and that ‘afford[s] a reasonable time… to make [an] appearance.’ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Accordingly, in J. G. G., this Court explained—with all nine Justices agreeing—that ‘AEA detainees must receive notice… that they are subject to removal under the Act… within a reasonable time and in such a manner as will allow them to actually seek habeas relief’ before removal. In order to ‘actually seek habeas relief,’ a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.”

 

Remember that on April 7th they halted Judge Boasberg’s jurisdiction in DC; the cases were then heard in Texas in the District of detention, and the Court stated that notice was required for the detainees so they could realistically make a habeas challenge. The Alien Enemies Act was still in play and will be until the Court finally rules. They further stated on Friday, May 16th:

 

“To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated. We did not in April…and do not now—address the underlying merits of the parties’ claims regarding the legality of removals under the AEA. We recognize the significance of the Government’s national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution. In light of the foregoing, lower courts should address AEA cases expeditiously.”

 

More to follow. This avenue of removal is not the easiest and is certainly controversial; however, I applaud this Administration for its expansive use of its Article II authority to resolve the unlawful mess that Biden, Harris, and Mayorkas made to the peace and prosperity of this nation.

 

CONCLUSION

Truly a busy week. District Courts are all over the place. The Administration is rightfully frustrated in advancing the political goals of the President, who ran on these issues and won. What process is due to criminal terrorists? Does Judge Dugan think we are idiots? James Comey doubles down on his mendacity and treason. Whatever the outcome, he will have a very uncomfortable year.

 

Mike Imprevento
May 19th, 2025