Top DOJ official asks judges to step aside from immigration cases

Washington — A top official at the Justice Department is attempting to disqualify two Minnesota federal judges from a pair of cases, claiming comments they made to the New York Times about the Trump administration's handling of immigration cases in the state call their impartiality into question.

The motions, filed against Judges Patrick Schiltz and John Tunheim, are an escalation of the Justice Department's ongoing campaign against judges who it claims have treated the Trump administration unfairly. Both of the requests were made by Associate Attorney General Stanley Woodward, the third-highest-ranking official at the Justice Department.

Woodward also moved over the weekend to disqualify U.S. District Judge Ana Reyes, who sits on the trial court in Washington, D.C.,  from overseeing a case involving President Trump's efforts to overhaul a historic public golf course in the nation's capital. Reyes rejected the Justice Department's effort Sunday and accused the Justice Department of weaponizing "selective quotations to bring a baseless recusal motion."

The requests seeking the recusals of Schiltz and Tunheim came in two separate immigration cases and were each filed by Woodward on Tuesday. In the case overseen by Schiltz, the Trump administration is seeking to strip a Minnesota man of his U.S. citizenship. In the second case, assigned to Tunheim, a South African national faces two charges of illegally voting in the 2024 election. She has pleaded not guilty.

Schiltz has scheduled a hearing on the motion against him for Nov. 23. Under ethics rules, judges cannot publicly discuss cases pending before them.

At the center of both requests are comments Tunheim and Schiltz made to the New York Times for an article published last month. The judges each raised concerns about the Trump administration's handling of cases stemming from its immigration crackdown in Minnesota earlier this year, called Operation Metro Surge.

Woodward claimed in each of the filings that the judges' comments raised questions about their ability to remain impartial in the cases. 

"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: pursuing the largest denaturalization effort in Department history to restore trust and integrity in U.S. citizenship," he wrote in the motion to disqualify Schiltz. "Absent recusal, the American people will reasonably question whether Judge Schiltz can be impartial regarding this important matter defending the integrity of American citizenship."

Woodward separately claimed that Tunheim's remarks to the Times suggest that he may view the charges against the South African national as unwarranted. 

"To Judge Tunheim, the 'rule of law' apparently means ignoring the law when it comes to illegal aliens who have broken the law," he wrote.

The associate attorney general said Schiltz and Tunheim's statements and participation in the Times article "give rise to the appearance of bias in immigration-related cases," warranting their recusals. Woodward is the only government lawyer who signed the motions.

What comes next

Experts on judicial ethics expect the Trump administration will likely fail in its efforts to sideline Schiltz and Tunheim from the cases. Still, these motions to disqualify are rare, and yet even more rare when they are made by the government.

"They're looking to essentially antagonize the judges and to square off against them in some manner," said Charles Geyh, a law professor at Indiana University Bloomington who focuses on ethics and judicial conduct.

In the rare instances where the Justice Department believes a judge should step aside from a case, government lawyers might write to the judge privately and lay out the reasons why they think recusal is warranted, said Stephen Gillers, a law professor at New York University who has written on judicial ethics. 

But with the efforts involving Schiltz and Tunheim, not only did the Justice Department file their motions on the public dockets, it also promoted them on social media.

"It's obvious DOJ has decided that its game plan is to challenge the fairness of the judges as a way of undermining judicial authority in the eyes of the public," Gillers said.

He called the filings "performative" and said the Justice Department "wants to publicize them to discourage public confidence in what the courts are doing when they rule against the administration."

The disqualification motions are the latest in a line of actions taken by the Trump administration that target judges who have ruled against it. The Justice Department filed a judicial misconduct complaint against all but one of the federal judges in Minnesota, including Schiltz and Tunheim, last month because of the Times article. It also submitted ethics complaints against Reyes and U.S. District Judge James Boasberg, the latter of which was dismissed.

The Justice Department sued all 15 of the federal judges in Maryland over a standing order that temporarily blocks the immediate removal of immigrants challenging their deportations. A judge in Virginia dismissed the lawsuit, and the Justice Department has appealed that decision. 

Mr. Trump and senior members of his administration have also publicly insulted judges, including Supreme Court justices, by name and called for their impeachments.

"This is just a perpetuation of the project," Geyh said. "It's part of the network of efforts to delegitimize the judges involved, make them look partisan, make them look biased as a way to quiet them and diminish the check from the judiciary."

Amid rising tensions between the federal judiciary and Trump administration, Schiltz and Tunheim are not the only federal judges who have raised concerns about what they say is the government's disregard of court orders. Others have pushed back against the harsh rhetoric from the president and top administration officials.

The Judicial Conference, the policy-making body for the federal courts, issued an advisory opinion in February stating that ethics principles "permit judges to speak or write about the independence of the judiciary, or advocate for the rule of law in general, including why both values are crucial to our system of government."

Additionally, the Judicial Conference said its Committee on Codes of Conduct believes there is "room, in at least some circumstances, for the measured defense of judicial colleagues from illegitimate forms of criticism and attacks that risk undermining judicial independence or the rule of law, whether or not they rise to the level of persecution."

"If you're talking generally about the concerns with the rule of law as a consequence of the general pattern of conduct the Department of Justice is exhibiting, it's the opposite of bias," Geyh said. "It is them really doing what they need to do to protect the rule of law."