A judge is expected to hear arguments soon over whether military attorneys may prosecute civilians in federal court.
Military attorneys usually handle cases involving fellow service members, but in Minnesota they’re helping to fill a staffing shortage after a mass resignation of federal prosecutors.
Paul E. Johnson is one of the many people who documented and protested the immigration agents who descended on Minnesota this winter. On Jan. 22, he spotted federal agents in his north Minneapolis neighborhood. After pulling into a parking lot to observe them, Johnson said that masked men boxed him in and pulled him from his vehicle.
“The last thing I remember was, like, two or three guys inside the cab of my vehicle pounding on my head and face,” Johnson said in an interview with MPR News. “I was all black and blue behind my ears.”
Johnson, 47, said the agents beat him unconscious. The self-employed remodeling contractor also suffered a torn rotator cuff, which put him out of work. Johnson said that he spent five days shackled to a hospital bed at HCMC and had to sneak a phone call to his wife when the agent guarding him stepped away.
After his release from the hospital, prosecutors charged Johnson with felony assault of federal agents. Homeland Security Investigations Special Agent Richard Berger signed a sworn affidavit accusing Johnson of threatening the Border Patrol officers with a baseball bat and blasting their vehicle with pepper spray.
On Jan. 28, U.S. Attorney General Pam Bondi posted photos of Johnson and other protesters to social media, where she called them “rioters.” But the government appears to be backing away from this narrative.
Special Assistant U.S. Attorney Michael Hakes-Rodriguez later re-charged Johnson with a less serious misdemeanor. The government has not charged any of the other protesters listed in Bondi’s post with felonies, and prosecutors dropped misdemeanor charges entirely against one of the arrestees whom Bondi named publicly.
Kevin Riach, Johnson’s defense attorney, said the government’s case against his client is invalid for many reasons, including the fact that Hakes-Rodriguez is an Army lawyer. Riach argues that military attorneys have no business prosecuting civilians, and said that the federal government has expanded its militarization of law enforcement from the streets into the courtroom.
“It’s been taken to the next level by actually bringing in active duty military to handle civilian law enforcement,” Riach said. “The Posse Comitatus Act forbids that, and for good reason. There’s supposed to be a boundary between the two.”
The 1878 law largely bans the military from handling civilian law enforcement duties. Eleven ex-military lawyers — known as judge advocates — are backing Riach’s argument in an amicus brief, something rare in a misdemeanor case.
Minneapolis lawyer John Marti is among its signatories, as is former Minnesota U.S. Attorney and ATF Director B. Todd Jones. Marti served in the Marine Corps as a judge advocate before spending 18 years as an assistant U.S. attorney.
In the Marines, Marti said that he occasionally prosecuted civilians for offenses such as fraud, domestic violence, and distribution of child sex abuse materials. In a phone interview with MPR News, Marti said that federal law allows military lawyers to prosecute civilians, but only if the alleged crimes happened on a military base or had some other connection to the military.
“I disagree with the practice of assigning military prosecutors to prosecute civilians in civilian court when there’s no nexus to a military purpose,” Marti said.
Because the case against Johnson has no military connection, Marti argues that the Justice Department is violating the Posse Comitatus Act by having Hakes-Rodriguez prosecute it.
Marti said that the Trump Administration is using the military to intimidate its political opponents. He also noted that Army prosecutors are not allowed to resign from their jobs, as many of their civilian counterparts did in protest over the Justice Department’s response to the killings by immigration agents of Renee Macklin Good and Alex Pretti.
“They ran out of lawyers in the Department of Justice, so they reached over to the Department of Defense and grabbed a bunch of younger and inexperienced attorneys, and they’re throwing them into the line,” Marti said.
In a separate case, a federal judge in February found another Army prosecutor in contempt of court and threatened to fine him after the Department of Homeland Security missed deadlines to return the belongings of a former immigration detainee.
Hakes-Rodriguez argues in his own court filing that his appointment to the U.S. Attorney’s Office is legal under an exception to the Posse Comitatus Act that allows the Justice Department to “receive details of military lawyers.”
Hakes-Rodriguez said that he’s not subjecting any citizen to military power, and that his authority as a prosecutor comes from the Justice Department, not the Army.
Magistrate Judge Shannon Elkins has set arguments in the case for April 3.
