DOJ Seeks to Remove Two Federal Judges from Immigration Cases over Their Remarks to the Media

The US Department of Justice is seeking to remove two Minnesota federal judges who publicly criticised the immigration crackdown in the media from immigration-related cases. The department has filed two separate motions questioning the judges' impartiality.

The two judges are Patrick Schiltz and John Tunheim. They had criticised the Trump administration's immigration operation, Operation Metro Surge, in a report published by the New York Times.

Schiltz is overseeing the Justice Department's effort to strip US citizenship from Salah Osman Ahmed, a Somali-born man who pleaded guilty in 2009 to providing material support to terrorists after joining al-Shabaab.

Tunheim is presiding over the prosecution of a South African national accused of falsely claiming US citizenship and illegally voting in the 2024 election.

In the separate motions, the Justice Department argued that the judges' participation in the New York Times report criticising Operation Metro Surge has raised questions about whether they can fairly preside over the cases.

In a statement posted to X this week, the Justice Department said impartiality is imperative to ensuring public trust in the nation's judiciary. It said Judge Schiltz's and Judge Tunheim's on-the-record participation in the report, along with Schiltz's subsequent public comments, unquestionably called into doubt whether they could be impartial in these cases.

Schiltz and Tunheim were among seven Minnesota federal judges who spoke with the Times in September about Operation Metro Surge. Schiltz sat for a roughly 90-minute interview in which he described the administration's handling of the operation as a 'grave threat to the rule of law', while Tunheim suggested agents carrying out the crackdown were not primarily apprehending dangerous criminals.

Last month, the DOJ filed a judicial misconduct complaint against Schiltz, Tunheim and the other Minnesota judges who participated in the Times report, accusing them of violating judicial ethics rules and asking the Eighth Circuit to investigate. Attorney General Todd Blanche said their conduct had undermined public confidence in an impartial judiciary in Minnesota.

The Times report revealed that the Minnesota judges handling the flood of cases regularly met, communicated through running email threads and used an informal spreadsheet created by court clerks to identify judges to consult about recurring legal questions. Chief Judge Eric Tostrud, however, said the judges nevertheless independently decided every case assigned to them.

Associate Attorney General Stanley Woodward wrote that a judge who has publicly taken sides on the political issue of immigration enforcement cannot preside over a case concerning one of the department's key initiatives — pursuing the largest denaturalisation effort in its history to restore trust and integrity in US citizenship.

Schiltz declined to comment on the new disqualification effort. But in September he argued there was no basis for him to step aside, saying he had not commented on the merits of any particular case anywhere; instead, he had spoken in defence of the rule of law, a component of which is compliance with court orders, and that was not a cause for recusal. Tunheim did not respond to a request for comment.

Charles 'Cully' Stimson, a senior legal fellow at the Heritage Foundation, said judges ordinarily avoid publicly commenting on matters that could intersect with cases before them, and called the judges' decision to talk to a newspaper 'extraordinarily imprudent'. But he cautioned that recusal motions put judges in the unusual position of judging their own impartiality, and that it would be inappropriate to predict the outcome without the complete record.

If either judge denies the request, the government could seek review from the Eighth Circuit, where a three-judge panel would determine whether the legal standard for recusal has been met. The DOJ declined to comment further on Thursday beyond its public statement and did not answer whether it would appeal a denial. It remains to be seen whether the two judges step aside themselves or the fight moves to the appeals court.