Air Force judge advocates and paralegals receive courtroom training at Maxwell Air Force Base in Alabama. A federal magistrate judge in Minnesota ruled last week that military lawyers have the legal authority to prosecute civilians for crimes unrelated to the armed forces. (Donna Burnett/U.S. Air Force)
Using military lawyers in federal prosecutions of civilians is legal even in cases without a connection to the armed forces, a U.S. district court in Minnesota decided.
Despite Pentagon regulations discouraging the practice, Magistrate Judge Shannon Elkins ruled last week that the guidance does not give the court authority to stop it, Reuters reported.
The Justice Department has used uniformed lawyers to backfill federal prosecutors in states where President Donald Trump has cracked down on violent crime and immigration, a need compounded by resignations and firings during his second term.
The case was brought on behalf of Paul Johnson, a Minnesota resident who was charged with assaulting federal law enforcement officers with pepper spray in January during an immigration crackdown that drew widespread protests.
The plaintiff had sought to remove Army lawyer Capt. Michael Hakes-Rodriguez, who was appointed as the sole prosecutor in the case.
A long-standing partnership between the Defense and Justice departments has in the past placed military lawyers with federal prosecutors to work together in cases that involve the military in some way. Eleven military veteran attorneys who agreed with Johnson’s argument filed a friend-of-the-court brief in March through Protect Democracy supporting the removal of the Army attorney.
They argued that using a JAG in a case unrelated to the military violates the 1878 law Posse Comitatus Act, which bars service members from conducting law enforcement activities within the United States.
Elkins agreed that under Pentagon regulations, lawyers from the armed forces should be involved only in cases related to the military, according to Reuters.
But in siding with the government, she said two overriding laws passed by Congress prevented her from disqualifying a JAG from a civilian case.
One of the attorneys who joined the amici curiae in United States v. Johnson expressed his personal disappointment in the decision.
Defense Department instructions “are regulations, not mere suggestions,” said Eugene Fidell, a visiting lecturer at Yale Law School and former U.S. Coast Guard member. Whether the law permits JAGS to serve as special assistant U.S. attorneys “in cases that have nothing to do with the military, it could not be clearer that such assignments violate binding military regulations,” he said on Monday, adding that “all courts have inherent power to regulate who may appear in a case.”
Kevin Riach, a lawyer for Johnson, said he plans to appeal, Reuters reported Friday.
Rose Thayer contributed to this story.
