The DOJ’s Recusal Motion Against Two Minnesota Judges: Why the Judges Themselves Decide
A February ethics opinion says judges may defend the rule of law in public. Woodward says these two crossed the line. The machinery that settles it starts with the judges judging themselves.
“Headline-chasing jurist.” That is what Associate Attorney General Stanley Woodward calls Judge John Tunheim in the motion he filed Tuesday asking Tunheim to step aside from a criminal case: the prosecution of Hester Sophia Weihmann, a 69-year-old South African national accused of voting illegally in Minnesota in 2024. The label is built to travel. The motion is where the real story sits, because of who gets to decide it.
Federal law says a judge must step aside from any case where his impartiality “might reasonably be questioned.” The motion invoking that rule is decided first by the judge it names. Charles “Cully” Stimson, a former federal prosecutor and military judge now at the Heritage Foundation, told Fox News Digital that recusal motions put judges “in the unusual position of effectively judging their own impartiality.” Judge Patrick Schiltz, Woodward’s other target, has set a Nov. 23 hearing on the motion against him. So Schiltz will preside over arguments about whether Schiltz can be fair.
The two cases are US v. Ahmed, No. 26-cv-02536, and US v. Weihmann, 26-cr-175. In the first, the government is trying to revoke the citizenship of Salah Osman Ahmed, who pleaded guilty in 2009 to providing material support to terrorists and served three years in federal prison; the civil denaturalization case was filed May 7. In the second, a grand jury indicted Weihmann on Sept. 24 on charges of falsely claiming U.S. citizenship to vote and voting as a noncitizen on Nov. 5, 2024. She pleaded not guilty on Sept. 29.
Both motions trace to a Sept. 17 New York Times article about Operation Metro Surge, the immigration crackdown that flooded Minnesota’s federal courts last winter with hundreds of arrests and roughly a thousand habeas cases. Schiltz, who was chief judge during the surge, had already put the government on notice in January: his order found immigration authorities had violated nearly 100 court orders. He told the Times the episode “created a grave threat to the rule of law,” said the breakdown came down largely to incompetence and staffing shortages, and declined to discuss pending cases. Woodward’s filing also cites remarks Schiltz made at an Oct. 2 law-school symposium. Tunheim’s contribution was the line about enforcement targets: “They weren’t arresting, in my view, people who were dangerous criminals on the street.”
The judges’ camp says none of this crosses a line that was drawn only eight months ago. On Feb. 12, the Judicial Conference’s Committee on Codes of Conduct issued Advisory Opinion No. 118, which says federal judges may publicly defend judicial independence and the rule of law as long as they avoid partisan politics and preserve impartiality. Court spokesperson Rebecca Parks told Reuters the judges acted “well within the ethical rules” in speaking to the Times. The opinion is not the blank check it sounds like: it also warns that even accurate statements can violate the appearance-of-bias rule if they sound one-sided, and it reads the ban on public comment about pending cases strictly. The ABA’s write-up says the opinion was issued to address “the increased criticism and attacks on the federal judiciary.”
Tunheim’s “dangerous criminals” remark was about whom immigration agents arrested during the surge. The case he wants Tunheim off is a voting prosecution. Nobody was arrested on any street. Woodward bridges the gap with the reasonable-observer test: a reasonable observer, he argues, could question whether a judge who saw Weihmann as an ordinary, non-dangerous person would regard the prosecution as warranted at all. He adds a smaller jab, that Tunheim spoke on the record by name while other judges stayed anonymous, which the filing reads as “his desire for favorable media attention.”
Woodward tried this theory once already, three days earlier, and lost. Over the weekend he asked Judge Ana Reyes of the D.C. federal court to step aside from a case about the Trump administration’s overhaul of a historic Washington golf course. Reyes denied it Sunday, writing that “it is easy to weaponize selective quotations to bring a baseless recusal motion” but “much harder to meet the demanding legal standard against a full record.” The Minnesota motions are the same theory’s second outing: same mover, same “appearance of bias” standard, now aimed at the judges’ own words to a newspaper instead of a courtroom exchange.
Daniel Gerdts, the lawyer for the man whose citizenship the government wants to revoke, told MPR News he has never questioned Schiltz’s impartiality, despite sometimes disagreeing with his rulings. The Justice Department sees it differently. Its post on X announcing the motions said Schiltz’s and Tunheim’s “on-the-record participation in a recent highly partisan New York Times Article” left the problem beyond doubt. “Impartiality,” it said, “is imperative for public trust in our Nation’s judiciary.”
Reyes’s “full record” is bigger than the interview. Schiltz’s January order documented nearly 100 violated court orders: findings entered on a docket, not lines given to a reporter. A reasonable observer weighing bias now has to weigh that order too, since “grave threat to the rule of law” was said in its context. If that context doesn’t settle the question, then any judge who describes what happened in his own courtroom risks a recusal motion for the description.
PunchUp’s review of court records found at least 50 active cases involving the Department of Homeland Security across six of the judges that could be affected; the department did not answer its questions about the count. Woodward is the only government lawyer who signed either motion.
