Do military lawyers working as federal prosecutors violate Posse Comitatus Act?

 Following the mass exodus of federal prosecutors in Minnesota, the Justice Department has enlisted lawyers from the armed services to fill the gaps, according to Courthouse News Service.

Now, a federal judge is set to decide the legality of using military judge advocate general lawyers to prosecute civilians.

Paul E. Johnson, a Minnesota resident facing a count of assaulting a federal agent in January, claims Special Assistant U.S. Attorney Michael Hakes-Rodriguez is unlawfully prosecuting him in violation of the Posse Comitatus Act.

The act bars federal military troops from participating in civilian law enforcement except when expressly authorized by law — most commonly used to prosecute offenses committed by civilians on military intallations.

The Justice Department contends judge advocates may be detailed to “represent the United States in civil and criminal cases” — asserting Hakes-Rodriguez and others have fully satisfied the necessary requirement to practice in Minnesota federal courts.

“The only connection to the military is their membership, which is not part of their enforcement of civilian law," the government said in a reply brief.

Hakes-Rodriguez told Magistrate Judge Shannon Elkins on Friday his appointment falls under an exception to the Posse Comitatus Act allowing judge advocates assigned to civilian offices to perform duties as requested.

But former judge advocates say military regulations never allowed for the general assignment of military lawyers in civilian matters.

“It is so wrong, and it’s inappropriate, and it’s going to undermine the relationship between civil and military authority for a long time going forward,” said attorney John Marti, a former judge advocate and federal prosecutor in Minnesota.

“If it’s OK for the attorney general to designate military attorneys as special assistants to prosecute civilians in civilian courts for civilian offenses with no nexus to military authority, there is no limitation on the attorney general doing that with all U.S. attorney’s offices,” he added.

A group of 11 former U.S. military attorneys, including Marti, submitted an amicus brief in Johnson’s case, urging the government to revert back to the tradition of limiting military attorney participation in civilian matters.

The group said the government typically details military attorneys on occasion to prosecute offenses committed by civilians on military installations, and in other cases where the military has a “clear and defined interest.”

“The government recently expanded this practice far beyond its historical and statutory bounds,” the group said in the March 10 brief — citing the dozens of military attorneys assigned to U.S. attorney’s offices in Minnesota, Washington, D.C. and Tennessee.

“During these temporary duty assignments, JAGs are not prosecuting cases with a nexus to the U.S. Military,” the former military attorneys said in the brief. “Instead, they are prosecuting civilians for the kind of general, domestic federal offense that civilian DOJ prosecutors would normally handle.”

The group said the government’s use of military attorneys is harming civil-military relations by suggesting military-led law enforcement is the “catch-all” substitute for regular civilian constitutional due process.

Military attorneys also have no choice, according to the group, unlike typical federal prosecutors.

“When civilian prosecutors are instructed by their superiors to pursue legally flawed or ethically suspect cases, they can resign, as they have done in this district,” the group said. “But JAGs do not have this option — they must obey their military superior’s lawful orders upon possible penalty of criminal prosecution.”

Reports say as many as 25 military attorneys could work at the depleted Minnesota U.S. Attorney’s Office in an attempt to keep it afloat after mass resignations during Operation Metro Surge due to ethical conflicts.

Before the start of President Donald Trump’s second term, the office had reportedly more than 40 prosecutors on staff.

With that number now cut in half — not including enlisted military attorneys — it’s unclear how a judicial ruling against the use of military attorneys would impact the office, but Marti said the option to pull lawyers from other government departments — like DHS and ICE — has always existed.

“The question you ask yourself is why do you need military attorneys when all these other agencies have attorneys as well — why not detail them?” Marti said. “I think in part because it’s easier to direct military attorneys to go do a mission.”

Since Operation Metro Surge began, federal prosecutors have faced a reputational downfall through a myriad of court orders threatening contempt over misrepresentations of fact and law, and flouting of judicial instruction. Now, military attorneys sent in to ease the burden face similar challenges.

Hakes-Rodriquez was removed as the prosecutor on Johnson’s case Monday — only to be replaced with fellow military attorney William Richards.

The Justice Department did not respond to a request for comment Tuesday.

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