DOJ Moves to Boot Two Minnesota Judges From Immigration Cases After They Bashed ICE to NYT

The Justice Department wants two Minnesota federal judges off immigration cases, and it is citing the judges' own words. In motions filed Tuesday, Associate Attorney General Stanley E. Woodward Jr. asked Judges John Tunheim and Patrick Schiltz to recuse themselves. His argument: by sitting for on-the-record interviews with The New York Times about last winter's ICE surge in Minneapolis, they gave up any appearance of neutrality, CBS News reported.

"A judge who has publicly taken sides on the political issue of immigration enforcement cannot then preside over a case concerning one of the Justice Department's key immigration initiatives," Woodward wrote in the Schiltz motion. Eric Daugherty flagged the move on X Thursday with a clip of the department's earlier announcement, and it drew more than 140,000 views.

What the judges told the Times

The Sept. 17 article, "Trump's Minnesota Surge Threatened Democracy, Judge Warns," was built on interviews with seven judges of the District of Minnesota about Operation Metro Surge. The DOJ says that included six of the seven judges who were on active status last winter.

Schiltz, the district's chief judge during the surge, sat for a 90-minute interview. He accused the administration of a "disregard for court orders" and said ICE's violations of hundreds of orders threatened the rule of law. "If you don't have it, you have either anarchy or you have authoritarianism. You have Russia or you have China or you have North Korea," he told the paper, per MPR News.

Tunheim was blunter about the people being picked up. "They weren't arresting, in my view, people who were dangerous criminals on the street," he told the Times. The article also paraphrased the district's judges as saying most detainees on their dockets "seemed to be ordinary people with homes and jobs."

The two cases

Tunheim's case is a voter-fraud prosecution. Hester Sophia Weihmann, a legal permanent resident from South Africa, is charged with a false claim of citizenship in order to vote (18 U.S.C. § 611) and voting by an alien (18 U.S.C. § 1015(f)) in the Nov. 5, 2024, election, according to the DOJ motion. A grand jury indicted her on Sept. 24, one week after the Times story ran. She pleaded not guilty on Sept. 29. MPR reports she is among at least 11 people charged in Minnesota with voting as noncitizens.

Schiltz's case is civil: the government wants to revoke the citizenship of Salah Osman Ahmed, a Somali American man who pleaded guilty to a terrorism charge in 2009 and served a three-year sentence, MPR reported. The DOJ calls the case part of "the largest denaturalization effort in Department history."

The legal hook

The motions rest on 28 U.S.C. § 455(a), which says a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The test is whether "the average person on the street who knows all the relevant facts" would doubt the judge's impartiality. Actual bias doesn't have to be proven.

The government also leans on judiciary ethics opinions warning judges to stay "above the fray" and to avoid "sensationalism." Its Sept. 30 misconduct complaint said judges are "ethically prohibited from commenting publicly on cases pending in any court" (DOJ). That tracks Canon 3A(6) of the Code of Conduct for U.S. Judges: "A judge should not make public comment on the merits of a matter pending or impending in any court."

The Tunheim motion doesn't hold back. "To Judge Tunheim, the 'rule of law' apparently means ignoring the law when it comes to illegal aliens who have broken the law," Woodward wrote. It also says Tunheim's "not dangerous criminals" line is "factually inaccurate" and "an unvarnished political opinion" with no legal relevance (motion).

The judges' defense

The court is not backing down. In a Sept. 30 statement, Schiltz said he acted "well within the ethical rules," citing a February advisory opinion that lets judges speak on "core judiciary matters such as advocacy for the rule of law and judicial independence." "That is exactly what I did," he said, per MPR. A court spokesperson issued a similar statement for the whole bench, FOX 9 reported.

Ahmed's lawyer, Daniel Gerdts, called the motion "contrived and baseless." Ethics professors interviewed by CBS News called the filings "performative" and predicted they would fail. CBS also noted that a judge in Washington, D.C., Ana Reyes, rejected a similar Woodward recusal motion on Sunday.

Why it matters

Talking about "the rule of law" in general is one thing. Telling a national newspaper that the people your court is processing aren't dangerous, and comparing the administration to North Korea, is another. The judges then sit in judgment of those same enforcement cases. Whatever one thinks of the surge, a defendant charged with illegal voting and a government seeking to denaturalize a convicted terrorist deserve a judge who hasn't already given his opinion of the policy to the Times.

What's next: Schiltz has set a hearing on the motion against him for Nov. 23, CBS reported. Tunheim had not acted on his as of Thursday, FOX 9 reported. The judges decide the motions themselves first, St. Thomas law professor Greg Sisk told MPR, and the law makes it hard to get an appeals court to force a judge off. Separately, the DOJ's misconduct complaint against seven judges is still pending before the Eighth Circuit, where proceedings are confidential.