DOJ Recusal Motion Targets Minnesota Judges Over ICE Remarks

A DOJ recusal motion filed Oct. 20 asks U.S. District Judge John R. Tunheim of Minnesota to step aside from a noncitizen voting prosecution because of what he told The New York Times about ICE arrests in the Twin Cities. The Justice Department is pressing a parallel request against Senior U.S. District Judge Patrick J. Schiltz in a case seeking to revoke a Somali American man’s citizenship, MPR News and Law&Crime reported, and the two motions test whether a judge’s public criticism of immigration enforcement can disqualify him from other immigration-linked cases.

The stakes reach beyond two dockets. Minnesota’s federal court is handling a run of immigration-linked prosecutions, including the 10 voting indictments announced last month, and a ruling that a judge’s comments about enforcement taint his neutrality across “immigration-related cases,” the phrase the government uses, would give prosecutors a tool to reshape which judges hear them.

What the DOJ recusal motion says

The filing in United States v. Weihmann, No. 26-cr-175, is signed by Associate Attorney General Stanley E. Woodward Jr., the department’s third-ranking official, rather than by the local U.S. attorney’s office. It relies on 28 U.S.C. 455(a), which requires a federal judge to step aside “in any proceeding in which his impartiality might reasonably be questioned.” Citing Eighth Circuit precedent, the motion argues that “the existence of actual bias is irrelevant.”

The remark at the center of the motion appeared in a Sept. 17 Times article on the federal enforcement operation in Minneapolis. Judge Tunheim criticized a federal immigration sweep, saying agents “weren’t arresting… dangerous criminals on the street.” In response, I think, the government is of the opinion that an individual does not need to be a dangerous criminal to be lawfully arrested, making the judge’s claim incorrect under the law. So the government concludes that his public expression of this legally incorrect view proves he is biased against immigration enforcement and must be disqualified from the illegal voting case.

The defendant, Hester Sophia Weihmann, 69, is a lawful permanent resident from South Africa. She has pleaded not guilty to falsely claiming citizenship to vote and voting as a noncitizen in the Nov. 5, 2024, election. She is one of 10 foreign nationals indicted on Sept. 24, according to the U.S. Attorney’s Office for Minnesota, which lists maximum penalties of five years in prison for the false-claim charge and one year for the misdemeanor voting charge.

The Schiltz motion was filed in United States v. Ahmed, where the government seeks to revoke the naturalization of Salah Osman Ahmed, who pleaded guilty to a terrorism charge in 2009 and received a three-year sentence, MPR reported. Schiltz, who was the district’s chief judge during the surge, told the Times, according to MPR, that without the rule of law “you have either anarchy or you have authoritarianism. You have Russia or you have China or you have North Korea.” Ahmed’s lawyer, Daniel Gerdts, told MPR the government’s arguments are “contrived and baseless.”

How strong the recusal arguments are

The government’s weakest point is the gap between the remarks and the cases. Tunheim’s comment concerned whom immigration agents were arresting on the streets of Minneapolis. The Weihmann case asks whether a green card holder lied about citizenship to vote in 2024. The Ahmed case turns on a 2009 conviction and a naturalization file. The best-known disqualification over press comments, in the Microsoft antitrust litigation the motion cites, involved a trial judge who gave interviews about that very case. Disqualifying a judge from any case with an immigration element over general criticism of an enforcement campaign would stretch the statute well past that use.

The bench has a defense ready. After the Justice Department filed misconduct complaints against Schiltz, Tunheim and five other Minnesota judges over the Times interviews, Schiltz said on Sept. 30 that he had acted “well within the ethical rules,” pointing to a February opinion of the judiciary’s Committee on Codes of Conduct that allows judges to speak on “core judiciary matters such as advocacy for the rule of law and judicial independence.” Tunheim’s comment about who agents arrested fits that description less neatly than Schiltz’s remarks about the rule of law, which gives the government its better argument in the Weihmann case.

Under the federal code of conduct, judges are strictly prohibited from commenting on active or upcoming cases, but they are generally allowed to give interviews to discuss broad legal philosophies, court procedures, or the rule of law. Because of this, neither Judge Tunheim nor Chief Judge Schiltz commented on the specific, active cases pending before them—the illegal voting case and the denaturalization case against Salah Osman Ahmed. Instead, staying within permissible boundaries, they spoke broadly about a past immigration sweep, with Schiltz offering a general, philosophical warning that losing the rule of law leads to “anarchy or… authoritarianism.” However, the government is forcing a connection between these separate matters by weaponizing their permissible, general remarks to claim both judges harbor a systemic bias. By taking broad criticisms of a past operation and applying them to entirely separate courtrooms, the government argues that neither judge can remain impartial toward federal enforcement altogether—a strategy that Ahmed’s lawyer, Daniel Gerdts, dismissed as “contrived and baseless.”

Procedure favors the judges. Each decides his own motion in the first instance. If they refuse, the government’s options are limited; Greg Sisk, a University of St. Thomas law professor, told MPR the law makes it hard to get an appeals court to force a judge off a case, and suggested the filings are meant “in large part to send a message to every other federal judge.” The practical effect may show up less in these two cases than in how freely other judges talk about enforcement.

The filings land as officials say thousands of possible noncitizen voting cases are under review, as counties question the government’s voter lists, and after a Minneapolis magistrate judge apologized over an ICE memo naming a public defender. Citizenship cases are multiplying too, including a criminal denaturalization trial in Alaska.

No hearing date or response deadline has been reported. A recusal by either judge would hand prosecutors a template for other districts where judges have spoken publicly; a refusal would leave the issue for any appeal after judgment.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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