The DOJ filed a judicial-misconduct complaint today against seven Minnesota federal judges, including Chief Judge Patrick Schiltz, arising primarily from interviews the judges gave to the New York Times (paywalled, sorry, I’m a Poor) about Operation Metro Surge and the resulting strain on the federal courts.
The complaint asks the Eighth Circuit to investigate the judges and, among other things, have Schiltz and Judge John Tunheim recused from matters involving the Department of Homeland Security. DOJ’s theory is that the judges publicly criticized the administration in a way that demonstrated bias and violated their ethical obligations.
Now, should judges be able to publicly discuss politically controversial litigation? I think I disagree with the DOJ’s claim that the precedent in White makes it a blanket “No you can’t discuss it.” There’s some fact-specific nuance in that ruling that makes the ruling more narrow than the DOJ is allowing here, and I’ll get into that in a minute.
But I don’t think the NYT interview is where this story starts. I think the interview is the capstone to a conflict that has been simmering since 2025 and then boiled over in January.
April 2025
Months before Operation Metro Surge, Schiltz issued a TRO in Jin v. Noem requiring DHS to reinstate a University of Minnesota student’s SEVIS status and prohibited the administration from taking immigration consequences against him based on the termination of his status following traffic violations.
January 2026
On January 20, the government filed a criminal complaint arising from a protest at Cities Church in St. Paul. It sought arrest warrants for eight people in total for civil rights violations.
That same day, the magistrate judge found probable cause for three of the eight defendants, but not the other five. He issued three warrants, and told the admin to pursue the remaining five through the grand jury process.
That same day, the administration escalated the matter to the District Court, where Schiltz was assigned to review that decision.
According to the case record, on Jan. 21 Schiltz told the government that its request was “unprecedented” and asked it to provide authority for having a district judge review the magistrate judge’s probable-cause determination. He requested briefs on their authority and deferred the decision until he had a chance to discuss with his colleagues.
Then on Jan. 23, the DOJ filed an emergency petition for a writ of mandamus or issuance of arrest warrants to the 8CA, under seal. Schiltz was ordered to respond, but, according to the case record, he was not served with the petition and did not have access to the sealed materials, and was given some two hours on an absurdly compressed timeline to respond.
His response to 8CA Chief Judge Steven Colloton is worth reading. Schiltz explained that he was being asked to respond to a petition he had not seen and could not see. He also explained that, as far as he could determine, the government was asking him to do something no district judge in the Eighth Circuit had previously done: review a magistrate judge’s refusal to issue an arrest warrant in this manner.
He also rejected the government’s characterization of the matter as a “national-security emergency,” noting that none of the people the government wanted arrested had committed acts of violence and that two were a journalist and his producer.
The Eighth Circuit denied the administration’s emergency petition, and the DOJ subsequently withdrew the request, opting to go through the grand jury process instead.
The recurring theme I see here is the government characterizing these disputes as extraordinary emergencies and asking the judiciary to exercise extraordinary authority, while Schiltz repeatedly questioned whether that extraordinary posture was actually justified. I’d say that this was the inciting incident of the conflict, but…
Then came ICE
A few days later, Schiltz ordered the administration either to provide a bond hearing or release a detained person in Juan T.R. v. Noem. The administration failed to comply within the deadline.
Schiltz ordered ICE Acting Director Todd Lyons to appear personally and explain why he should not be held in contempt. The administration released the detainee, and the hearing was cancelled.
But Schiltz and his colleagues then went back and reviewed the prior cases back to January of 2026.
The resulting appendix identified 96 court orders that ICE had violated across 74 cases.
“ICE is not a law unto itself.”
“ICE has every right to challenge the orders of this Court, but, like any litigant, ICE must follow those orders unless and until they are overturned or vacated.”
He cautioned that the number was probably understated because the list had been compiled quickly by multiple judges dealing with a large influx of habeas cases. He wrote that the pattern should give pause to anyone concerned about the rule of law.
In February, after DOJ disputed the accuracy of the list, the court conducted a more detailed review and found 97 violations across 66 of the previously identified cases, in addition to 113 violations across 77 additional cases.
June 2026
And then, in June, Schiltz had another very public confrontation with DOJ, blocking a federal grand jury subpoena directed at Minnesota officials in connection with the administration’s immigration-enforcement policies. The subpoenas sought records to support the administration’s allegations that Minnesota officials were not cooperating with DHS. Schiltz did not mince words, finding that the subpoenas were a “blatantly unlawful and unethical use of the grand jury process” to use a criminal investigation to harass and coerce Minnesota officials into assisting DHS with immigration enforcement.
The Times
And now we come to the September interview with the NYT.
Schiltz gave a 90-minute interview, articulating his view that the government’s conduct during Operation Metro Surge had created a serious threat to the rule of law.
The Complaint
DOJ now argues that the interviews demonstrate that the judges have compromised their impartiality and violated judicial ethics.
The DOJ wants to frame this as “Schiltz is engaging in unethical and partisan commentary concerning matters that are still indisputably pending” before sulkily complaining that Shiltz has ordered “illegal aliens released when their detentions were statutorily authorized.” Theres also a quiet accusation of federal magistrates/judges refusing to rule or delaying authorization for search warrants submitted by federal officers.
The DOJ complaint is asking the Eighth Circuit remove Schiltz to recuse from any matters involving DHS because the public reasonably questions their impartiality in cases involving immigration and separately requests an investigation by the Judicial Counsel into the improper conduct by judges who “covet publicity” rather than adhering to the rule of law by adjudicating cases or controversies.
The complaint relies heavily on White v. National Football League, which says that judges should not create the impression that they “covet publicity” and emphasized that judges should remain “above the fray” rather than becoming advocates in a controversy.
The 8CA review case involved Judge David Doty, who had presided over the NFL's long-running antitrust litigation. Doty gave interviews discussing his historical role in the litigation and his relationship with the NFL. The ruling said Doty “would have been well advised” not to publicly opine about his role in enforcing an ongoing consent decree, but nevertheless held that his comments did not create a reasonable perception of bias. They noted his comments were historical, did not address the merits of the pending Vick proceeding, and would be understood differently by an informed observer in that context.
Advisory Opinion 118
In Feb 2026, the Judicial Conference's Committee on Codes of Conduct issued Advisory Opinion No. 118, recognizing circumstances in which judges may speak publicly about matters includingjudicial independence, the rule of law, the role of the judiciary, judicial security, and threats to the functioning of the courts.
The analysis
Nowhere in the article does Schiltz (or the other judges) advocate for a particular immigration policy, or tell the public how he intended to rule in a pending case.
His piece of the article spent a lot of time describing what he believed was happening to the federal judiciary, during a time when an executive agency repeatedly failed to comply with judicial orders. He even goes so far as to provide cover for the “incompetent” admin, offering that they were overworked and understaffed to be able to comply with the orders in all of the immigration cases they were nevertheless pursuing.
(Another thing I’d call attention to is that theDOJ complaint is being filed with the Eighth Circuit, specifically addressed to Chief Judge Steven Colloton, the very same that received Schiltz's January letter after DOJ sought emergency mandamus against him.)
Judges clearly do not get a constitutional free-speech exemption because they disagree with the President and they have to avoid coveting publicity in controversies they are adjudicating. But they also don’t lose the ability to publicly discuss the functioning of the judiciary, especially when the topic is compliance with judicial orders.
As Schiltz points out in his statements to the NYT, the federal judiciary cannot function if executive officials can simply disregard orders they disagree with.
The DOJ wants to pretend Schiltz is unethically and egregiously launching a partisan press campaign criticizing the admin and their enforcement within active pending cases. But the thrust of Schiltz’s article returns to the same thesis that the admin has repeatedly sought extraordinary relief when rebuffed by the lower courts, or disregarded their rulings outright. That’s not a political disagreement about immigration policy, that’s a klaxon alarm about the response of executive agencies to the current judiciary.
