DOJ Seeks Recusal of 2 Minnesota Judges Over Times Interview

What happened

The Justice Department is asking two veteran federal judges in Minnesota to remove themselves from cases tied to immigration, arguing that what they told a newspaper makes them look biased. Associate Attorney General Stanley Woodward filed the recusal motions on Tuesday, Oct. 20, and was the only government lawyer to sign them, CBS News reported.

The targets are Senior U.S. District Judge Patrick Schiltz, who was the court’s chief judge during last winter’s immigration crackdown in the Twin Cities, and Judge John Tunheim. Both gave on-the-record comments for a Sept. 17 New York Times article on how that operation, known as Operation Metro Surge, strained the federal courts, according to MPR News.

Each motion covers one case. Neither judge has ruled. The motions are the second step in a campaign that began with a judicial misconduct complaint against Minnesota judges on Sept. 30.

The two cases

• Schiltz’s case is a civil lawsuit in which the government wants to take away a Somali American man’s U.S. citizenship. He admitted a terrorism-related charge in 2009 and was sentenced to three years in prison, MPR reports. Fox News describes it as part of what the department calls its largest denaturalization effort ever.
• Tunheim’s case is a criminal prosecution of a South African lawful permanent resident accused of falsely claiming citizenship to vote in the 2024 election. She has pleaded not guilty to two charges, CBS reports. By MPR’s count, the state has seen at least 11 noncitizen voting prosecutions.

Neither case is one of the detention lawsuits that flooded the court during the surge. Uptick is not naming the defendants, who are not public figures.

What the judges said

Schiltz, a George W. Bush appointee and former clerk to Justice Antonin Scalia, gave the Times a roughly 90-minute interview, according to Fox News and the Justice Department. He said immigration agents’ violations of court orders created “a grave threat to the rule of law,” AP reported. Back in January, AP notes, he had accused the government of failing to follow nearly 100 court orders.

Tunheim, a Bill Clinton appointee, told the Times that in his view agents were not mainly arresting dangerous criminals, FOX 9 reported. Seven Minnesota federal judges spoke to the paper, according to Fox News and AP. The judges were nominated by presidents of both parties; the later misconduct complaint also names Trump appointee Nancy Brasel, The Washington Post reported.

The Schiltz motion also cites remarks he made Oct. 2 at a University of St. Thomas law school symposium, where he described ruling quickly on hundreds of detainee lawsuits.

Who says what

The Justice Department says the judges joined a “highly partisan” article and can’t be seen as neutral, according to Newsmax. In a statement quoted by Fox News, the department said impartiality is essential to public trust in the courts. Woodward argued that a judge who has taken sides on immigration enforcement can’t preside over these cases.

The judges have pointed to a February advisory opinion from the federal judiciary’s Committee on Codes of Conduct. It allows judges to speak publicly in defense of judicial independence and the rule of law. “That is exactly what I did,” Schiltz said in September, MPR reports. He has also said he never discussed the merits of any particular case. He declined to comment on the new motion, and Tunheim didn’t respond to Fox News.

Outside voices split. Charles “Cully” Stimson of the Heritage Foundation called the interviews “extraordinarily imprudent,” though he cautioned against predicting the outcome without the full record, Fox News reported. Law professors Charles Geyh of Indiana University and Stephen Gillers of New York University told CBS the filings look designed to antagonize the judges, and CBS reported that experts expect them to fail. The citizenship defendant’s attorney, Daniel Gerdts, called the department’s arguments “contrived and baseless,” according to MPR.

How recusal works

Federal judges have to step aside when their impartiality “might reasonably be questioned,” the standard the motions invoke, as Newsmax describes it. The test is about appearances: whether a reasonable outsider would doubt the judge’s neutrality, not whether the judge actually is biased.

That is the core of the dispute. The department says criticizing the administration’s immigration operation is taking a side in a political fight. The judges and their defenders say defending court orders is part of a judge’s job, and that none of their comments touched these two cases.

The unusual part is who decides. Under the usual practice, the challenged judge rules first on his own recusal, St. Thomas law professor Greg Sisk told MPR. If a judge refuses, Stimson said the government could ask a three-judge panel of the 8th U.S. Circuit Court of Appeals to review it. Sisk said it’s hard to force a judge off a case that way.

How we got here

The Sept. 30 complaint, sent to 8th Circuit Chief Judge Steven Colloton, reaches every active federal judge in Minnesota except one and asks that they be kept off every case involving the Department of Homeland Security, the Post reported. Attorney General Todd Blanche said their conduct “undermined public confidence in an impartial judiciary.” Misconduct proceedings are confidential, so Schiltz can’t discuss that complaint, MPR notes.

What happens next

Schiltz has scheduled a hearing on the motion against him for Nov. 23, according to CBS and Newsmax. Tunheim had not acted as of Thursday, FOX 9 reported. The Justice Department wouldn’t say whether it would appeal a denial, according to Fox News.

The Minnesota fight is part of a broader pattern. CBS reports that U.S. District Judge Ana Reyes in Washington rejected a similar recusal motion from Woodward on Sunday, Oct. 18, that an earlier complaint against federal Judge Boasberg was dismissed, and that a department lawsuit against Maryland’s federal judges was thrown out and is on appeal.

Quick answers

Why does the DOJ want the Minnesota judges removed?

The department argues that the judges’ comments to The New York Times about the Twin Cities immigration crackdown show they have taken a side, so they can’t appear impartial in immigration-related cases.

Who decides whether the judges step aside?

Each judge rules first on the motion against him. If he refuses, the government could seek review from the 8th Circuit, which legal experts say rarely forces a judge off a case.

Is this the same as the misconduct complaint?

No. The Sept. 30 misconduct complaint is a separate, confidential process before the 8th Circuit’s chief judge. The recusal motions are filed in two specific cases.