The ruling stems from the case of Paul Johnson, a Minnesota resident charged with assaulting CBP officers in January.
A Minnesota judge ruled on May 1 that the government’s use of military lawyers to assist the Department of Justice (DOJ) in prosecuting civilians in Minnesota is lawful under federal law.
The ruling by U.S. Magistrate Judge Shannon G. Elkins stemmed from the case of Paul Johnson, a Minnesota resident who was charged in January with assaulting Customs and Border Protection (CBP) officers during immigration enforcement in the state.
Johnson’s lawyers argued that assigning a Judge Advocate General Corps (JAG) military lawyer to prosecute civilians in cases unrelated to the military violated the Posse Comitatus Act of 1878, which is a federal law that restricts the use of military personnel in civilian law enforcement, and Department of War regulations.
In her ruling, Elkins said that Congress has two other laws that provide exceptions to the Posse Comitatus Act, authorizing the attorney general to appoint military lawyers as special U.S. attorneys to prosecute civilians.
“If Congress passes statutes giving the Department of Justice the authority to appoint active military personnel as [special U.S. attorneys] to prosecute civilians, that is the law,” Elkins wrote.
“And even though the Department of Defense regulations recognize that having military lawyers prosecute civilians in cases that lack a military nexus would be ill-advised, these regulations do not authorize this court to strike the appearance of a [special U.S. attorney] that the DOJ appointed.”
Johnson’s lawyer said the defense team intends to appeal the decision.
In March, a group of 11 former JAG lawyers submitted an amicus brief supporting Johnson, saying the government “crossed a perilous line” when it assigned a military lawyer to prosecute civilians in a case that was “completely devoid of a military nexus,” as they noted that Johnson’s alleged offense did not implicate a military base or safety.
“To civilians, it may appear the government is deploying the military to prosecute the cases that career Department of Justice attorneys would or could not,” the group wrote in the brief.
