On Wednesday, Attorney General Todd Blanche, flanked by Homeland Security Secretary Markwayne Mullin and Minnesota U.S. Attorney Daniel Rosen, announced indictments of multiple noncitizens for voting-related crimes.

But the bigger headline came from Blanche’s second announcement: The Department of Justice had filed a complaint of judicial misconduct against former Chief Judge Patrick Schiltz, Judge John Tunheim and several “anonymous judges.” It all stemmed from their participation in a Sept. 17 New York Times article about the effect of Trump’s immigration enforcement agenda on their court, their perception that the administration was not complying with their orders and the importance of the rule of law.

According to the DOJ, the judges’ interviews with the Times violate at least two federal judicial conduct rules, known as canons, that require judges to “act in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and to avoid “public comment on the merits of a matter pending or impending in any court.”

The judges’ remarks, the DOJ continued, not only suggest a bias against the Department of Homeland Security, but were also timed as decisions by Minnesota district judges to release immigrant detainees are undergoing appeal. In particular, the detainee in one case decided by Tunheim is now asking the Supreme Court to review his case.

Federal judicial misconduct complaints, which cannot be anonymous, go to the chief judge of the relevant federal appeals court. After review, the chief judge has options ranging from dismissing the complaint outright to referring it to a special committee for its investigation and a report. And the judge complained about can also seek further review. But while decisions must be made public, the consideration of any complaint — and the underlying submissions — are not. The very existence of a complaint should not be disclosed unless “necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.”

MS NOW does not know whether any of the judges at issue in the DOJ’s recent complaint have responded to its allegations.

There is no indication that the judges who spoke to the Times did so impulsively. On the contrary, Schiltz said Wednesday in a public statement that he consulted recent guidance published by the federal Judicial Conference, the organizing body for federal judges, that allows judges to speak and write “on core judiciary matters such as advocacy for the rule of law and judicial independence.”

Another of the judges, Nancy Brasel, appeared to reference that same guidance in the Times piece at issue: “We are allowed to speak out about judicial independence. And so we should, in order to keep it.”

Brasel, like the current chief judge, Eric Tostrud, who is also quoted by name in the piece, was nominated by a Republican president: Donald Trump.

That six of the seven then-active judges on Minnesota’s federal district court spoke to the Times together also suggests their collective panic about the state of the rule of law and the pressure placed on their relatively small district, where, inundated by new applications from immigrant detainees, the clerk’s staff began working seven days a week, 16 hours a day without overtime pay, according to the article. 

But that does not mean the DOJ will prevail. A judicial misconduct accusation brought by the DOJ itself not only threatens to silence judges who speak out against the department or other agencies’ disregard for court orders and judicial authority, but is troubling on other levels as well.

First, it is part of a growing — and not particularly successful — trend.

Last year, a former DOJ official filed a judicial misconduct complaint against Chief Judge James Boasberg of the District of Columbia, who has provoked the administration’s ire by ruling against it in high-profile immigration matters and by initiating a contempt investigation to determine who within the administration authorized two flights carrying alleged Venezuelan gang members to El Salvador’s notorious CECOT prison. (An appeals court has stayed that investigation for now.)

The complaint itself, however, was predicated on comments Boasberg allegedly made during a Judicial Conference meeting, and was dismissed last year on grounds that the evidence was too thin and that even if true, it reflected that Boasberg aired others’ concerns about future noncompliance by the administration, not his own.

Second, the statements of the judges in the Times article at issue are different in kind and degree from those that other federal appeals courts have found warrant corrective action — and those cases are themselves few and far between.

One of the cases on which the DOJ relies involved a district court judge’s 2024 New York Times essay entitled, “A Federal Judge Wonders: How Could Alito Have Been So Foolish?” The piece itself concerned the flying of two flags — an upside-down American flag and the “Appeal to Heaven” flag — outside Justice Samuel Alito’s homes, an act the district judge characterized as a deviation from “basic ethical behavior” that should be “folded into a judge’s DNA.” Alito, according to the judge, should have understood that those flags could be seen as “a banner of allegiance on partisan issues that are or could be before the court.”

But even after determining that the essay violated two judicial canons, the chief judge of the Fourth Circuit imposed no punishment. Instead, he wrote that the exchange between them convinced him that the judge was “respectful of the judicial complaint process, responsive to the concerns raised by his essay, and reflective in drafting” a public apology, which was corrective action enough for the chief judge.

The DOJ also leans heavily on the retroactive disqualification of the district court judge who presided over a landmark antitrust trial to break up Microsoft.

There, the judge gave secret interviews — in the middle of the trial — to multiple national reporters, on the understanding that they could and would publish his thoughts after a verdict was rendered. But it was both the relationship of his comments to the case, and their real-time concealment from the public, that necessitated his disqualification. As the D.C. Circuit explained, the judge “disclosed his views on the factual and legal matters at the heart of the case,” including “[h]is opinions about the credibility of witnesses, the validity of legal theories, the culpability of the defendant, [and] the choice of remedy.”

By contrast, even if any of the judges interviewed by the Times are found to have commented on pending matters or undermined public confidence in the judiciary, the remedy the DOJ is asking for — recusal “from any matters involving DHS” — is far more dramatic than any of the consequences imposed in the cases they cite.

In fact, even recusing one of six active federal judges in Minnesota, as well as a senior judge, from those matters would further disable that court in the event of any future immigration surge. 

Operation Metro Surge itself overwhelmed the district court in ways from which it is just now recovering. As the Times noted in the subject piece, the District of Minnesota received two new habeas petitions in the first three months of 2025. In the wake of Operation Metro Surge, that number soared to more than 1,100 during the first three months of this year. The district of Minnesota, which only has seven active judicial seats, also has one judicial vacancy at present.

What could happen to a court unable to sufficiently keep pace with its immigration caseload? In months past, we have seen DHS rush immigrants to detention centers outside the states where they live because the federal courts in that jurisdiction have not endorsed DHS’ interpretation of who can be detained without a bond hearing. One can imagine that phenomenon would only be expedited in a universe where one or more judges are barred from overseeing such cases.

And perhaps that is the DOJ’s intent. If judges signal that they will not give the DOJ its way, the department will attempt to push them out of its way. That is a development none of us should welcome.

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