Nearly a dozen former military lawyers filed a document in federal court Tuesday supporting the removal of an Army attorney who was appointed as the sole prosecutor in a case against a man accused of assaulting federal law enforcement officers in Minnesota. (Stars and Stripes)
Nearly a dozen former military lawyers filed a document in federal court Tuesday supporting the removal of an Army attorney who was appointed as the sole prosecutor in a case against a man accused of assaulting federal law enforcement officers in Minnesota.
The Army lawyer, Capt. Michael Hakes-Rodriguez, is part of a Defense Department program that places some legal officers with federal prosecutors to work cases that involve the military in some way.
However, there is no military connection in this case to which Hakes-Rodriguez was assigned, according to court records.
“By assigning a [Judge Advocate General’s Corps officer] to prosecute a civilian offense completely devoid of a military nexus, the government has crossed a perilous line — a clear line drawn by Congress and memorialized in the Army’s own regulations,” according to the friend-of-the-court document filed by the 11 former military attorneys.
The concern comes amid the increased use of a long-standing partnership between the Defense and Justice departments that offers courtroom experience to military attorneys. In the partnership, JAG officers are appointed as special assistants to U.S. attorneys. Historically, the military lawyers handle military-connected cases, such as traffic violations or other crimes committed by civilians on military property.
However, the Pentagon this year has sent its uniformed lawyers to backfill federal prosecutors in states where President Donald Trump has focused his initiatives to crack down on violent crime and immigration.
Meanwhile, the federal government has seen increased resignations among federal attorneys, including in Minnesota, where federal agents clashed with the community for several months over the tactics used to quell protests and detain people accused of entering the U.S. illegally.
Hakes-Rodriguez was assigned last month as the sole prosecutor in the federal government’s case against Paul E. Johnson, who is charged with assaulting federal law enforcement with pepper spray on Jan. 22 in Minnesota. A civilian federal prosecutor previously assigned to the case was withdrawn.
Kevin Riach, Johnson’s attorney, filed a motion to have Hakes-Rodriguez removed because “U.S. military lawyers are prohibited from performing civilian law enforcement under the Posse Comitatus Act,” according to court documents.
The Posse Comitatus Act, an 1878 law, bars military troops from conducting domestic law enforcement activities.
The 11 former attorneys, who are named in the legal paperwork and come from all service branches, agreed with this argument.
“A JAG prosecuting a civilian exercises direct and active military involvement and influence in civil law enforcement, specifically through the control of criminal investigations, charging decisions, defense negotiations, interviewing witnesses and making sentencing recommendations,” according to the court document.
The Defense Department did not provide an estimate of how many of its uniformed attorneys are now assigned to the Justice Department but said in a statement the department is “proud to stand shoulder to shoulder with our law enforcement and Department of Justice partners.”
“Department JAGs regularly provide crucial legal support nationwide and bring their unique skills and dedication of our America’s service members supporting our interagency partners as they deliver justice, restore order and protect the American people. Beyond this and for anything additional we would refer you to the DOJ,” according to the statement.
The Justice Department late Tuesday shared a legal opinion that cleared the use of military attorneys despite the Posse Comitatus Act. It was written in October by Assistant Attorney General T. Elliot Gaiser of the Justice Department’s Office of Legal Counsel.
“We have generally interpreted the phrase ‘or otherwise to execute the law’ as having a relatively narrow meaning that focuses on the use of coercive physical force in the enforcement of laws,” Gaiser wrote. “In other words, as used by the PCA, the phrase ‘execute the law’ does not encompass the entire scope of law execution performed by the Executive Branch.”
The attorneys must work for the Justice Department on a full-time basis and operate fully under civilian control and supervision, he wrote.
A spokesperson for the Justice Department said the military lawyers are “assisting with DOJ’s mission of keeping Americans safe, including through combating violent crime and illegal immigration.”
The 11 veteran attorneys filed their friend-of-court brief through Protect Democracy. Established in 2016, the organization describes itself as a “nonpartisan nonprofit focused on defeating the authoritarian threat facing the country.”
The attorneys signed to the brief are Eugene R. Fidell, B. Todd Jones, Charles Kovats, Jason Lien, retired Air Force Maj. Gen. Steven J. Lepper, John Marti, retired Army Lt. Col. Daniel Maurer, retired Rear Adm. James E. McPherson, Steven L. Schleicher, Hank Shea and Andrew Winter.
