Constitutional scholar weighs in on 'weak argument' as Milwaukee County Judge Hannah Dugan files motion to dismiss obstruction charges

MILWAUKEE COUNTY, Wis. (CBS 58) -- Milwaukee County Judge Hannah Dugan, indicted by a federal grand jury, has filed a motion to dismiss the charges against her. 

The motion to dismiss claims Dugan is entitled to "judicial immunity" for her official acts.

The FBI claims Judge Dugan helped an undocumented immigrant, Eduardo Flores-Ruiz, try to escape immigration agents at the county courthouse. 

Judge Dugan is indicted on two counts -- one for "knowingly concealing" Flores-Ruiz, who had a warrant for his arrest. 

The other count accuses her of trying to influence, obstruct, or impede the arrest of Flores-Ruiz, and mentioned her alleged actions of telling agents they need a judicial warrant, telling agents to leave the hallway where the arrest was planned, and leading Flores-Ruiz and his lawyer through a non-public doorway.

But a constitutional scholar said he does not think the motion stands up.

Dr. Howard Schweber, a professor emeritus at UW Madison, told us, "I do not think this is a strong argument, and I don't expect it to succeed."

Schweber reviewed the seven page motion to dismiss. In it, Dugan's attorneys say, "This is no ordinary criminal case, and Dugan is no ordinary criminal defendant."

They argue prosecuting Dugan is "entirely unconstitutional" as the federal government alleges she helped an undocumented immigrant elude federal authorities.

The attorneys say Dugan is covered by judicial immunity, which protects judges from civil lawsuits for actions taken in their official capacity.

But Schweber says that's a weak argument. "There is no question, and there has never been any question, that state officials can be charged with federal criminal offenses."

Plus, he says, moving a defendant is likely not an official judicial action, like issuing a ruling. "It's terribly, terribly clear that where judges act in an administrative, or what's called a ministerial way, they do not have immunity from criminal prosecution."

Dugan's attorneys conspicuously cite the immunity case against President Trump. In 2024, the Court ruled in Trump's favor, granting sweeping immunity to the Office of the President.

But Schweber says citing that case is a political appeal, not a legal argument.

Schweber said Dugan's attorneys are essentially saying, "'Shouldn't you, Judge, equally view immunity in a sweeping way, following the lead and guidance of the U.S. Supreme Court?'"

But even in the Trump ruling, Chief Justice John Roberts's opinion made a distinction between official conduct and other actions.

Ultimately, Schweber expects the federal judge to deny Dugan's motion to dismiss her case. "I have a great deal of trouble seeing the arguments that Dugan is trying to make in this motion."

Judge Dugan's attorney sent us a statement saying, "Judge Dugan asserts her innocence and looks forward to being vindicated in court."

She is expected to enter a not guilty plea at her arraignment hearing Thursday, May 15.