The FBI arrest of Wisconsin Judge Hannah Dugan conducted in a way designed to publicly humiliate her represents unconstitutional overreach, both with respect to the separation of powers among the three branches of government, and the U.S. federal system, Andrew Napolitano argues.
She was charged with obstructing the administration of justice for allowing a defendant to leave her courtroom through a nonpublic exit, in order to prevent a federal attempt to apprehend him using a warrant that was administrative, not judicial. Judge Dugan considered the arrest warrant invalid, and Napolitano agrees that under the Fourth Amendment, only judges can order arrests.
Napolitano, himself a former state judge, argues that under the precedent of Printz v. United States, the federal government does not have the power to give orders to state officials. Not all government power inheres in the federal government.
Additionally, in the United States, government officials are generally immune to criminal prosecution for exercising their core functions. If the secretary of defense orders an attack on what turns out to be a civilian structure, he cannot be charged with murder. If the police mistakenly raid the wrong house, they cannot be charged with breaking and entering. “And if a judge tells a defendant to leave her courtroom from door A and not door B, because behind B are folks with a phony warrant, she cannot be prosecuted,” he says.
This assault on the separation of powers and the concept of federalism is only beginning, if recent remarks by border czar Tom Homan represent a policy intention.
In Wisconsin, the governor sent a memo to state employees on what they should do if confronted by federal immigration agents. It counsels the employees to “stay calm,” contact an attorney, and decline to answer questions or provide documentation without a lawyer present. “State employees may not grant … access … absent authorization from their legal counsel pursuant to a valid judicial warrant.”
One state representative posted an AI image of the governor in handcuffs, with a scowling Trump in a police uniform behind him.
On May 1, Homan implied that more arrests are coming. “Wait until you see what’s coming,” he said repeatedly, suggesting that more surprises are in store.
