Indictment of judge invades court independence

In the Boston suburb of Newton not long ago, Judge Shelley Richmond Joseph released a prisoner when it appeared he had been wrongly identified as a fugitive in an out-of-state warrant. Now is it the judge who faces jail time. The prisoner, an undocumented immigrant, was wanted by U.S. Immigration and Customs Enforcement (ICE), part of the federal Department of Homeland Security (DHS), which had sent its agent to the courthouse to arrest him on federal immigration claims if he was released on the state charge. The decision to charge Judge Joseph with obstruction of justice and conspiracy, made by President Trump's U.S. attorney for Massachusetts, is part of a pattern of this administration's attacks on judges, judicial process and the independence of the courts.

According to the indictment of Judge Joseph, her offense was this: after dismissing the charge against the defendant as factually insufficient, she briefly stopped recording the proceedings and allowed him to go to the holding cell to confer with his lawyer; a court officer let him out the back door, rather than the front, as the ICE agent had anticipated.

Massachusetts, like California and other states, has given guidance to its state court personnel: don't cooperate with or hamper ICE in its efforts to apprehend migrants who appear in state court. Although Judge Joseph, on the bench since 2017, may have broken ethical rules of the Massachusetts courts by turning off the tape and allowing the defendant out an unauthorized exit, that was a minor breach in comparison to an indictment on a federal criminal charge that has led to her suspension without pay and possible removal from the bench. And it is a matter for Massachusetts courts to resolve according to their own procedures; they may well be guided by the immigration law policy, which would appear to favor Judge Joseph's action, not the ethical rule that wouldn't.

What is really chilling is that ICE tried to compel the state court judge to do its work. The prisoner had no choice but to appear before Judge Joseph without facing additional criminal charges. ICE sought to take advantage of that state legal mandate in its effort to apprehend aliens it seeks to deport. That practice is called "commandeering," and the Supreme Court in a case called Printz found it violates the zone of sovereignty for the states preserved under the Tenth Amendment to the U.S. Constitution. Printz was reconfirmed last term by the court in a case on a federal statute, the Professional and Amateur Sports Protection Act of 1992 (PAPSA), that prohibits states from authorizing sports betting. In that case, Justice Samuel Alito wrote for the majority that the "anti-commandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution - the decision to withhold from Congress the power to issue orders directly to the states."

That, he continued, is exactly the problem with the provision of PAPSA that "unequivocally dictates what a state legislature may and may not do." "It is as if," he said, "federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals," he said. "A more direct affront to state sovereignty is not easy to imagine."

State courts get the same protections as the political branches: substitute state courtrooms for state legislative chambers in Justice Alito's quote and we're in the Massachusetts courthouse. The anti-commandeering principle says the federal government cannot deputize unwilling state officers to enforce federal law, and the Supreme Court has just repeated that it's still the law of the land. A letter last week, signed by 78 retired Massachusetts judges, protested the threat to the independence of their state courts. And the constitutional issue is not the only problem. Under DHS policy guidance, ICE agents are regularly posted in state courthouses, seeking to apprehend and detain people - including victims of domestic violence who seek protection orders, rape victims and parents trying to sort out custody of their children.

Make no mistake, the right to seek redress in state court is not limited to U.S. citizens. While there are some limits on legal remedies available to them based on immigration status, non-citizens have access to state courts on equal footing to citizens. According to immigration law experts, the ICE policy of staking out courthouses to detain people with questionable immigration status has made them and their family members fearful to appear as litigants or even as witnesses in court. This severely restricts access to justice for wide segments of Central Americans and other recent arrivals to the US.

The court of each state belongs to the state; that is the essence of the dual sovereignty guaranteed under our system of federalism. For the U.S. Department of Justice and DHS to start indicting state judges for doing what is required by state law and state sovereignty sets us up for a dangerous duel.

Meryl Chertoff is executive director of the Aspen Institute Justice and Society Program and an adjunct professor of law at Georgetown University Law Center. Follow on Twitter @AspenInstitute.