A federal judge in Minneapolis is set to decide whether the government may use military attorneys to prosecute civilians. The Justice Department has sent lawyers from the armed services to the Minnesota U.S. Attorney’s office following a wave of resignations there.
Paul E. Johnson, who faces a misdemeanor count of assaulting a Border Patrol agent in January, argues that Special Assistant U.S. Attorney Michael Hakes-Rodriguez has no right to prosecute him or any other civilian because Hakes-Rodriguez is an Army lawyer and his work in a civilian prosecutor’s office violates the Posse Comitatus Act.
In court on Friday, Johnson’s defense attorney Kevin Riach said that the 1878 law, which largely bans the military from performing civilian law enforcement duties, also prohibits military lawyers from prosecuting civilians except with express Congressional authorization, and there’s been none granted.
In March a group of 11 former military attorneys who were part of judge advocate general, or JAG, corps in the Coast Guard, Marines, Army, Navy, and Air Force, signed an amicus brief in support of Johnson.
They argue that for military lawyers to legally prosecute civilians, there must be some sort of military nexus, such as a crime committed on an Army base. The attorneys cite federal regulations that limit the work of military lawyers assigned to civilian duties.
“There’s a reason that JAG officers are being detailed to these cases,” Riach told U.S. Magistrate Judge Shannon Elkins. “It’s because line prosecutors don’t want to handle them.”
Hakes-Rodriguez told Elkins that his appointment falls under an exception to the Posse Comitatus Act that allows the Justice Department to receive details of military lawyers. He points to a part of the U.S. Code that says judge advocates assigned to civilian offices such as the Justice Department may perform duties there as requested.
There is scant case law regarding the Justice Department’s use of military lawyers to prosecute civilians in matters where there’s no military connection, so Elkins questioned Hakes-Rodriguez about the nature of his appointment to the U.S. Attorney’s Office.
“As both a military attorney and an attorney of this court, hypothetically, if you were ordered to do something unethical, could you refuse to act?” Elkins asked.
“Yes,” Hakes-Rodriguez replied.
“Does the chain of command influence your decisionmaking?”
“No,” Hakes-Rodriguez answered.
“I want to make one thing very clear about Army regulations, he added later. “They’re subservient to DOJ instructions. This has the blessing of the [Defense Department.]”
In response to a question about staffing numbers, Hakes-Rodriguez said that there are approximately 25 military attorneys working at the Minnesota U.S. Attorney’s Office. He added that he’s part of an initial group that’s returning to Memphis following the arrival of a new set of military lawyers.
“Who ordered you to Memphis?” Elkins asked.
“I wouldn’t exactly say I’ve been ordered to Memphis,” Hakes-Rodriguez replied. “My orders put me on detail to DOJ, performing duties that any [special assistant U.S. attorney] would perform. I would not face any [Uniform Code of Military Justice] consequences for going back to the Army. That’s within my rights.”
“You’re here voluntarily?” Elkins asked.
“Yes,” Hakes-Rodriguez replied.
The Justice Department requested help from military lawyers after more than a dozen career federal prosecutors quit in protest over the DOJ's response to the killings of Renee Good and later Alex Pretti by federal agents.
Before the start of President Donald Trump’s second term, the office had more than 40 prosecutors on staff. Now there are fewer than half as many, not including the military lawyers.
That lack of capacity led the office to dismiss a case against an alleged drug trafficker and a separate felony gun case against a man with a long criminal history.
Elkins said that she will take time to consider the defense and government arguments before deciding whether to remove Hakes-Rodriguez or another military attorney who succeeds him from the case. Riach is also challenging the use of military prosecutors in a separate case against another protester.
On Jan. 22, Johnson was driving through his north Minneapolis neighborhood when he pulled over to observe agents who were among thousands sent to Minnesota as part of the Trump administration’s purported immigration enforcement effort dubbed “Operation Metro Surge.”
Johnson told MPR News in a February interview that masked men boxed him in, pulled him out of his vehicle, and knocked him unconscious. He suffered a torn rotator cuff and spent five days shackled to a bed at HCMC, where he sneaked a surreptitious phone call to his wife. Johnson said that he awoke to see the agent guarding him take his picture.
On Jan. 28, former U.S. Attorney General Pam Bondi posted Johnson’s name and photo along with several other protesters who’d been arrested and called them “rioters” on social media.
The Minnesota U.S. Attorney’s Office initially charged Johnson with felony assault of a federal officer, but later reduced the charge to a misdemeanor because they never took the case to a grand jury – which must approve any felony charges.
Elkins denied a prosecution request to keep secret the names of the agents who arrested and photographed him after Hakes-Rodriguez raised concerned that the agents would be threatened online.
“Isn’t this the kind of doxxing you describe the same thing that [former] Attorney General Bondi did to Mr. Johnson when she posted his name and photo to X?” the judge asked.
