Judge Criticized for Releasing MS-13 Murder Suspect in California

James Percival, the general counsel for the Department of Homeland Security, has expressed concerns about what he describes as an “epidemic of judicial activism.” His warning follows a decision by a federal judge in California to release a suspect alleged to be involved in an MS-13 murder case. Percival emphasized that individuals charged with serious crimes like murder should remain in immigration detention while their cases are being processed.

Similarly, the Justice Department is seeking the removal of several federal judges in Minnesota from immigration cases. This action arises from accusations that these judges crossed ethical boundaries by publicly criticizing former President Donald Trump’s immigration policies.

The department contends that these judges made inappropriate comments regarding the Trump administration’s immigration enforcement while relevant cases were still pending, thereby damaging public trust in their fairness.

Attorney General Todd Blanche announced on Wednesday that a formal complaint regarding judicial misconduct was filed with the Eighth Circuit Court of Appeals against seven federal judges in Minnesota. This stems from their participation in a New York Times article published last September.

Blanche stated, “These judges spoke with the media, specifically the New York Times, about ongoing cases in a way that the Department sees as a clear breach of their ethical responsibilities.”

The complaint names Judge Patrick Schiltz and Judge John Tunheim—appointees of President George W. Bush and President Bill Clinton, respectively—along with other unnamed judges who were also involved in the interviews. The Justice Department has requested that the Eighth Circuit’s Judicial Council investigate the situation and consider whether Schiltz and Tunheim should recuse themselves from any immigration cases involving the Department of Homeland Security, arguing their impartiality might justifiably be questioned.

However, the ultimate decision regarding these investigations is not in the Justice Department’s hands. The federal judiciary’s misconduct process means that complaints are managed internally within the judicial system.

The chief judge for the Eighth Circuit, currently Steven Colloton, will first assess whether the complaint should be dismissed or escalated for further inquiry. If a committee gets appointed, it will produce findings for the Judicial Council, which will determine if any corrective measures are warranted. Importantly, the misconduct process does not provide a means for automatically disqualifying a judge from a case or simply to contest a judge’s legal decisions.

The Justice Department’s complaint was triggered by a September 17, 2026, article in the New York Times, in which Judges Schiltz, Tunheim, and six others commented on the significant increase in immigration-related litigation that followed what was referred to as “Operation Metro Surge.” They noted the substantial number of habeas petitions and how the influx affected court operations, alongside expressing reservations about various aspects of the administration’s immigration policies.

In particular, remarks made by Schiltz that deemed the administration’s actions as jeopardizing “the constitutional order” were highlighted in the DOJ complaint, as well as Tunheim’s comments criticizing immigration arrests.

The Justice Department contends that these interviews overstepped ethical boundaries due to their discussion of issues tied to cases still in litigation. They argue that public statements by these judges created an impression that they had already made judgments on issues likely to emerge in future proceedings.

Chad Mizelle, chair of Litigation for the America First Policy Institute, expressed concern over judges allowing personal ideologies to influence their decision-making. He noted that historically, judges have faced removal from cases for engaging with the press in ways that suggested biased viewpoints.

He recalled the instance in 2001 when Judge Thomas Penfield Jackson was removed from a significant case involving Microsoft due to similar issues. Mizelle remarked that the ethical standards remain in place but questioned the current readiness of judges to uphold them.

On a different note, Minnesota Attorney General Keith Ellison characterized the complaint as a political maneuver intended to intimidate judges. He asserted, “This complaint has nothing to do with judicial ethics but is rather a tool for political retribution against judges who have ruled against the federal government during Operation Metro Surge.”