By CARLOS SAPIR
In late April, federal agents arrested two judges, Jose Luis Cano of New Mexico and Hannah C. Dugan of Wisconsin, on supposed charges of aiding undocumented immigrants. As is now customary for the federal government, the immigrants in question were accused of having been members of Tren de Aragua, the overseas boogeyman du jour, with zero evidence to back that up.
These arrests come in a context where the courts have been one of the few institutions of U.S. bourgeois democracy to (occasionally) rebuke Trump’s power-grabs and attempt to block (some of) his actions, and such judges have faced harassment and threats from Trump’s supporters. Are Trump’s attacks simple retaliation at his perceived “deep state” enemies in the judiciary? Or is there actually a strategy at play here?
Why attack a judge to go after people aiding immigrants?
Trumpian social media has rushed ahead to declare that Cano and Dugan were providing vital aid to help undocumented immigrants avoid law enforcement. The actual facts of the cases, however, show a different story. In the case of former Judge Cano, the charges appear to stem from social media photos taken by Cano’s daughter with an immigrant tenant of the Canos, Cristhian Ortega-Lopez, posing with guns from the daughter’s collection; former Judge Cano and his wife were arrested on charges of destroying evidence relating to this incident.
While posing Ortega-Lopez with guns would be a federal offense under U.S. law if Ortega-Lopez were undocumented, it is a far cry from anything resembling “abetting illegal immigration.” Meanwhile, Ortega-Lopez and the Canos’ access to guns appears to have nothing to do with the “Tren de Aragua” fantasy, and much more to do with regular old U.S. gun culture.
The case against Judge Dugan is even more absurd: Dugan is charged with helping an undocumented immigrant evade arrest in her courthouse by sneaking him to a back entrance. The actual record of the day, backed up by the court’s own security camera footage, is that Dugan sent the person in question to the public courtroom hallway, directly to the federal agents ostensibly there to arrest him. That the agents failed to do so immediately (but later did so after a few minutes of their own confusion), has absolutely nothing to do with Dugan. Other than the Trump administration’s baseless accusations, there is no evidence that Dugan has ever particularly helped immigrants in her career as a judge.
These charges become all the more ridiculous when we consider what we know as immigrants and immigrant rights activists: there is no shortage of people and groups who actually, proudly, publicly, and correctly provide aid for undocumented immigrants. So why go after judges on frivolous, trumped-up charges? The reason relates to the fact that the goal here isn’t to actually remove these judges on immigration-related charges, or to immediately arrest allies of the immigrant community; the goal is to set up a propaganda narrative about judicial corruption.
Despite FBI Director Kash Patel’s (possibly illegal) social media posts celebrating Judge Dugan being hauled away in handcuffs, the charges against her stand no chance of actually holding up in court. Instead, they serve as alternative facts for the MAGA media ecosystem, confirming for the Trump faithful that not only are there evil, pro-immigrant judges breaking U.S. laws, but that the legal system is powerless to stop their entrenched position. The goal is not to remove Judge Dugan today, but rather to prepare people for a broader attack against the judiciary down the road, having “established” its corrupt nature.
A Turkish playbook
Despite its supposed contempt for all things foreign, this feint at the judiciary has a clear, successful precedent in the attacks that Turkish President Recep Tayyip Erdoğan carried out in his country. In the Turkish case, Erdoğan effectively baited the courts into issuing a constitutionally-accurate, but extremely unpopular, decision, striking down a proposal from Erdoğan’s government that would have allowed women to wear hijab in Turkish universities. The Turkish constitution, adopted under the auspices of liberal modernization in the early 20th century, prizes secularism as a central tenet. But the Turkish population at large is not nearly so enthusiastic about supporting the continuation of hijab bans in public life.
Erdoğan was able to capitalize on this divide between public opinion and the Constitution to campaign for, and eventually win, a constitutional referendum that has primarily served to concentrate the powers of the president. In Erdoğan’s view, “democracy is like a tram, you ride it to your station and then you get off.” Baiting the courts into upholding the unpopular hijab ban punched his democratic ticket nearly all the way to his next stop.
There is a key difference between the confrontation set up by Trump and that of Erdoğan, however. While Erdoğan was ultimately able to find a winning, broadly popular issue with which to bait the courts, Trump’s attacks on courts and immigrants are only appealing to the MAGA faithful. Where around 90% of Turks supported broad freedom of religion and expression (which, contextually, could mean support for permitting the hijab), support for Trump’s immigration policy is below 50%, and support for his most barbaric and illegal methods is presumably even lower.
Whether Trump’s team hopes that they can mold public opinion by pursuing this tack over a longer period of time, or whether they are just high on their own ideological supply, they do not appear to be close to a coup de grace against the judiciary on this question.
What is a judge to a worker?
As longtime participants in labor struggles and the movements for immigrant, Black, Queer, and Indigenous liberation, we know that the judges and the courts are not our friends. Nor are they neutral, or even particularly preoccupied with upholding the law for its own sake, the way that a high school civics textbook might teach it. The courts, like all other elements of government, are an institution of class rule. They are an unfair playing field that privileges the wealthy and connected that can afford the legal teams to defend themselves in court. They are the site of racist distortion on a daily basis, with cops and prosecutors leaning in on stereotypes to lock up and even execute defendants.
But the courts are not blind, and they are not above society, even if they pretend to be. In moments of mass social unrest, they take decisions to try to pacify the masses and maintain the stability of the existing regime. Under pressure from mass movements, they approve reforms to serve as ballast for the teetering ship of bourgeois democracy, as they did with Roe v. Wade and other rulings in the 1970s, even under presidents like Nixon who set out to govern with a conservative platform. And it is for this same reason that, in the absence of a mass movement, they swing back and tighten the regime when they can, such as with Roe v. Wade getting struck down. The courts’ goal is to maintain business as usual by any means available, and whether that takes the form of approving reforms or greenlighting repression is a question of the balance of forces in society more broadly.
We can even see this dynamic at play in their current state of inaction; since the beginning of Trump’s executive order onslaught, the Supreme Court has taken great pains to thread the needle of maintaining the appearance of stability. They have presented extremely meagre checks on Trump’s excesses that are mild enough that Trump will not ignore them outright and make official the constitutional crisis that has been simmering for months, and strong enough that they will mollify people who otherwise might see the courts as having already failed. Although, of course, their success in this second goal is only partial, with many people rightly seeing through their deceptions.
We are not going to sit around and wish for the courts to save us. It is by building a mass, working-class movement that stands up for its own rights that we will secure our freedoms. But even as we recognize that the courts are inherently unfair and ultimately our enemies in the struggle to win socialism and true freedom, it is a demand of utmost importance that the government be held accountable to its own laws, as this is the groundwork of any partial freedom that we hope to exercise today.
We denounce Trump’s attacks on the judiciary not because the judiciary is honest or deserves to be protected, but rather because they set the stage for total impunity when it comes to state repression and corruption. At this moment, we need to understand that these attacks are a propagandistic ploy to both demonize immigrants and expand state repression, and it is on these terms that we must oppose them.
