Judge Hannah Dugan’s invocation of Trump v. United States — the landmark presidential immunity case — in a motion to dismiss criminal charges could end up hoisting President Trump on his own petard. 

The Milwaukee judge was arrested last month and arraigned on Thursday for, as the FBI director, Kash Patel, put it on X, “intentionally misdirecting federal agents away” from an illegal immigrant who had appeared in her courtroom on a misdemeanor charge. The man, Eduardo Flores Ruiz, was arrested outside of the courthouse. Now Judge Dugan is herself in federal court — as a defendant.

Judge Dugan was indicted on two counts for “corruptly” endeavoring to “influence, obstruct, and impede the due and proper administration of the law under which a ponding proceeding was being had before a department and agency of the United States,” meaning the effort to deport Mr. Flores Ruiz. 

The motion to dismiss contends that the defects with the indictment handed up at Milwaukee are “legion” but that “most immediately, the government cannot prosecute Judge Dugan because she is entitled to judicial immunity for her official acts.” Judge Dugan maintains that “Immunity is not a defense to the prosecution to be determined later by a jury or court; it is an absolute bar to the prosecution at the outset.”

Judge Dugan insists that “judges are empowered to maintain control over their courtrooms specifically and the courthouse generally,” and cites that responsibility as covering her directing of Mr. Flores-Ruiz to leave her courtroom through a side jury door. That’s when “federal law enforcement saw him, followed him to the elevator … and then arrested him after a foot chase.”

The motion to dismiss sketches a long history of judicial immunity, claiming, “Since at least the early 17th century in England, and carried on through common law in the United States, judges of record have been entitled to absolute immunity for official acts.” A newer precedent, though, also informs Judge Dugan’s argument that “any further proceedings in this case, other than immediate dismissal, are barred by official acts immunity and judicial immunity” — Trump v. United States. 

Judge Dugan turns to Trump, which was decided by a 6-to-3 vote and written by Chief Justice Roberts, to bolster her argument for immunity. Trump reversed both a district court judge, Tanya Chutkan, and the the District of Columbia Circuit of the United States Court of Appeals to hold that official presidential acts are presumptively immune from prosecution, while unofficial acts are bereft of any such protection. 

The high court in Trump also held a smaller subset of presidential acts — ones within the “conclusive and preclusive” authority of the presidency — are entitled to “absolute” immunity. The Supreme Court determined that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives” because “such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.” 

Judge Dugan’s motion to dismiss cites that bar on inquiring into motives to claim that her “subjective motivations are irrelevant to immunity” — meaning that the government cannot probe into whether she intended to facilitate Mr. Flores-Ruiz’s escape from federal immigration agents when she urged him to slip out the door. It is not clear, though, whether the Nine intended the ruling of Trump to extend to a state judge’s actions. 

There is precedent, though, from the 11th United States Appeals Circuit that “judges are entitled to absolute immunity for their judicial acts, without regard to the motive with which those acts are allegedly performed.” Judge Dugan contends that the immunity owed to jurists amounts to not only protection from conviction, but also an immunity from suits altogether. 

Judges, though, are different from the president in that no single jurist is vested with all of the judicial power, as the president is vested with the entirety of the authority of the executive. The president is also charged to “take care that the laws be faithfully executed,” a responsibility that could be impossible to uphold if every action could prompt criminal charges. Or so the Roberts Court reasoned. 

The Constitution names only one species of immunity from prosecution — that enjoyed not by judges or presidents but by lawmakers. The Speech or Debate Clause ordains that legislators “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Congress has in the past acted to limit the protection enjoyed by federal judges — and other federal officials — in the performance of their duties. Most notable is the statute that forbids “deprivation of rights under the color of law,” which was passed under authority of Section 5 of the Fourteenth Amendment, which ordains that “Congress shall have power to enforce, by appropriate legislation, the provisions of” the rest of the amendment. 

That statue descends from the civil rights laws enacted during Reconstruction, when federal and state officers would conspire to block newly freed slaves from exercising their rights. Mr. Smith, in his election interference case, charged Mr. Trump under its terms. The case was dismissed — on account of immunity — after Mr. Trump won re-election.