Here in Boston, a federal grand jury has just indicted Judge Shelley Joseph, a judge in the Newton District Court, for conspiracy to obstruct justice, obstruction of justice, and obstruction of a federal proceeding. The claim is that during an arraignment in her courtroom for Jose Medina-Perez, who was charged with being a fugitive from justice and narcotics possession, a federal immigration enforcement agent was present to take Medina-Perez into custody under a “warrant of removal,” on the grounds that he had already been found subject to removal from the United States. The judge learned that the agent was present, and she ordered him out of the courtroom and told the clerk to turn off the electronic recording system. She arranged with a court officer to take Medina-Perez out a back way so that he could leave the courthouse without being detained by the agent.

Immigration enforcement in the Massachusetts courts is a hot-button issue now. Several months ago I had some involvement in an aspect of the issue when immigrants’ rights advocates petitioned a single justice of the Massachusetts Supreme Judicial Court to issue a writ of protection to prevent federal immigration agents from entering courthouses to detain aliens in deportation proceedings (the petition was denied). Without really describing my involvement, I can say that I came to hold the view that the single justice lacked the power to issue such a writ, because a state court cannot enjoin a federal officer performing his duties under federal law. The immigrant advocates ought instead to have brought an action for an injunction in the federal court (they preferred not to do so, likely for strategic reasons). This seemed like a relatively easy federalism question to me, but I also thought it was right not just in a technical sense but in a larger moral and political sense. I recalled that during the Civil Rights movement segregationists sought to have the state courts in southern states enjoin federal officers from enforcing the civil rights laws, and that those efforts were unsuccessful because of the supremacy of federal law.

The policy of the Massachusetts Trial Court (of which the District Court is a part) is that the courtrooms of the Commonwealth are open to the public, that federal officers can enter courthouses in order to perform their duties, and that court officers must permit officers to enter the holding cell and take custody of aliens after they have been released from state custody if an immigration detainer or warrant is pending. On the other hand, calling the officer’s warrant a “warrant” can be deceptive. It was not issued by any court but is instead an administrative document issued by the immigration authorities. If the officer had gone to Medina-Perez’s home rather than a public place like a courthouse, the warrant would not have authorized the officer to enter the home without consent. That’s probably why officers go to courthouses to make these arrests. And Massachusetts court officers are not allowed to detain people on detainers or warrants issued by the administrative authorities in immigration matters.

Much of the reaction to the indictment has been highly critical. Our attorney general, Maura Healey, said it was a “radical and politically motivated attack on our state and the independence of our courts.” The Boston Bar Association’s statement read:

In the absence of allegations of corruption or graft, a federal indictment of a state court judge based on her judicial actions is an unprecedented overreach into state authority, and poses a serious threat to the judicial independence that we all depend upon to protect our rights under the law.

Maura Healey and the BBA are excellent. My own view on this issue, though, is a little less straightforward. We have to separate the legal question from the political, moral, and practical question. My best understanding of the law is that the immigration agent had the right to seek to detain Medina-Perez in the courtroom and that the judge probably shouldn’t have put obstacles (or perhaps “obstructions”) in his way, though I do not want to offer an opinion about whether the judge’s conduct satisfies the elements of the criminal statutes without studying them. Again, we want to think back to another era and the contexts in which states sought to thwart federal law enforcement, and not make a legal rule based just on the sympathies of the moment. But that said, I also think it’s a terrible idea to send immigration agents to courthouses in the first place to arrest people, because it discourages people from attending court and is contrary to efforts to increase access to justice. And I find it hard to see why the federal government thinks the answer is to charge the judge criminally rather than for the Massachusetts court to exercise self-governance.

In short, the law should be the beginning, not the end, of the discussion about this issue.