美国司法部周三采取了前所未有的措施，对明尼苏达州的两位前联邦法官及现任联邦法官提出了谴责。这两位法官分别是帕特里克·希尔茨（Patrick Schiltz，由乔治·W·布什任命）和约翰·滕海姆（John Tunheim，由比尔·克林顿总统任命）。司法部在投诉书中还要求第八巡回法院的司法委员会对其他向《纽约时报》透露信息的“匿名”法官展开调查。
The Justice Department on Wednesday took the remarkable step of seeking to censure both a former and sitting federal judge in Minnesota after they spoke to The New York Times about the Trump administration's immigration surge in the state. The two judges are Patrick Schiltz, a George W. Bush appointee, and Judge John Tunheim, an appointee of President Bill Clinton. The complaint also asks the Judicial Council of the Eighth Circuit to initiate an investigation into other "anonymous" judges who spoke to the outlet.
不过这一措辞有些模糊，因为报道中确实提到了几位公开接受《纽约时报》采访的法官（其中包括一位由特朗普任命的法官），但他们的评论大多并未直接涉及具体案件。其中，由特朗普任命的南希·布拉塞尔（Nancy Brasel）法官表示：“法官有权就司法独立问题发表意见。”报道称，这些法官对特朗普政府在明尼苏达州实施的移民执法行动提出了批评；在执法过程中，有两名美国公民不幸丧生，这种激进的执法方式引发了两党的一致谴责，迫使国土安全部改变了其执法策略。
The reference is confusing, as the article names several judges on the bench who spoke to the Times on the record, including a Trump appointee. However, many of their comments did not directly touch on cases. One of those comments, from Trump appointed Judge Nancy Brasel, noted judges “are allowed to speak out about judicial independence.”The story noted that judges were critical of how the Trump administration operated as it conducted immigration raids across the Twin Cities. Two U.S. citizens were killed in interactions with immigration agents, and the aggressive enforcement prompted bipartisan criticism, leading the Department of Homeland Security to shift to quieter tactics.
希尔茨此前曾指出，美国移民与海关执法局（ICE）曾无视74位法官发出的96项命令。司法部在投诉书中指出，这两位法官的言论“明显违反了司法行为准则”，属于不当且不道德的行为。司法部强调：“法官在公开场合不得对正在审理中的案件发表评论，也不得就涉及法院审理的案件发表政治或政策性的言论”，这一规定同样适用于媒体采访。
Schiltz had previously noted that U.S. Immigration and Customs Enforcement (ICE) had defied 96 orders from 74 judges. The Justice Department argues in the filing that the two judges “have flagrantly violated the Code of Judicial Conduct with their improper and unethical comments.”“Judges are ethically prohibited from commenting publicly on cases pending in any court and making political or policy statements concerning matters that are or have been before them,” DOJ wrote, adding that the “cannon” applies to media interviews.
司法部认为，应命令这两位法官回避所有与国土安全部有关的案件，因为公众对他们处理移民案件的公正性存在合理质疑。
“These judges should be ordered to recuse from any matters involving DHS because the public reasonably questions their impartiality in cases involving immigration. Moreover, the Eighth Circuit should initiate an investigation by the Judicial Counsel into the improper conduct by judges in the District of Minnesota who ‘covet publicity’ rather than adhering to the rule of law by adjudicating cases or controversies.”
此外，第八巡回上诉法院应要求司法顾问对明尼苏达州那些“渴望出名”而非通过公正审理案件来维护法治的法官的不当行为展开调查。明尼苏达州地方法院的发言人表示，这些法官的行为完全符合道德规范。这位发言人通过电子邮件表示：“正如法律伦理专家所确认的那样，我们的法官在与《纽约时报》交谈时完全遵守了适用于联邦法官的道德准则。事实上，今年2月，行为准则委员会曾发布了一份咨询意见，明确指出联邦法官可以就‘法治’和‘司法独立’等核心司法问题发表意见。”
A spokesperson for the U.S. District Court in Minnesota said judges were well within the bounds of ethics guidelines. "As legal-ethics experts have confirmed, our judges were acting well within the ethical rules that apply to federal judges in speaking to the New York Times. Indeed, in February of this year, the Committee on Codes of Conduct issued an advisory opinion to emphasize that federal judges may 'speak and writ[e] on core judiciary matters such as advocacy for the rule of law and judicial independence.'
施利茨向《纽约时报》表示，根据法院的命令，“大多数（如果不是全部的话）违规行为都是由于法官能力不足造成的”，并强调这种程度的抗命行为“根本不可能发生”。顿海姆也向《纽约时报》简要说明，此次大规模逮捕行动并未针对有犯罪记录的人；他认为：“他们逮捕的并不是那些在街头危害社会安全的罪犯。”美国司法部则指出，顿海姆的言论虽然表达得较为简略，但同样违背了职业道德。
Our judges acted within this capacity," Rebeccah Parks, the spokeswoman, said by email. Schlitz told the Times that on court orders “most, if not all, of the noncompliance was due to incompetence” and also said that level of defiance “just never happens.”Tunheim also made brief remarks to the Times, saying that the widespread arrests did not focus on those with a criminal record. “They weren’t arresting, in my view, people who were dangerous criminals on the street,” said Tunheim. DOJ argued that Tumheim’s remarks “while less verbose is equally unethical.”
“认为政府没有逮捕那些‘危险罪犯’的非法移民，这种说法在事实上是错误的，纯粹是带有政治偏见的评论。”近年来，管理司法系统的法律机构一直认可法官有权发表某些公开言论。司法会议行为准则委员会发布的咨询意见也确认，法官在遵守道德准则的前提下，确实有权为法治发声、捍卫法院的独立性，并呼吁提高司法系统的安全保障和资金支持。
“Opining that the Administration was not arresting illegal aliens who were ‘dangerous criminals’ is factually inaccurate and unvarnished political commentary,” they wrote. Legal boards that govern the judiciary in recent years have affirmed the ability of judges to make some public comments. An advisory opinion from the Judicial Conference’s Committee on Codes of Conduct affirmed that the ethics code abided by judges allows them to advocate for the rule of law and defend the independence of the courts, including to seek increased judicial security and funding.
该意见进一步指出，在某些情况下，法官可能会为他们的同事挺身而出，抵御不公正的攻击。意见中写道：“虽然本评论专门讨论了迫害行为，但委员会认为，《法官行为准则》及其先前的咨询意见至少在某些情况下为法官提供了必要的保护机制，使他们能够合理地抵御那些可能损害司法独立或法治的非法批评与攻击；无论这些攻击是否达到了迫害的程度。”
The opinion goes further to say that, in some circumstances, judges may stand up for their peers against unjust attacks. “Although this Commentary addresses persecution specifically, the Committee believes the Code and its previous advisory opinions leave 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,” the opinion reads.