A federal magistrate judge in Minneapolis concluded that federal law permits the appointment of active-duty military lawyers to prosecute civilians, rejecting a legal challenge that argued the practice violated statutory and regulatory limits on military involvement in civilian law enforcement.
The case centers on Paul Johnson, a Minnesota resident charged with assaulting a Customs and Border Protection agent in January. Johnson's challenge targeted a military lawyer assigned to the U.S. Attorney's Office in Minnesota to assist with prosecutions during a period when the Trump administration intensified immigration enforcement in the state.
The Department of Defense had detailed Judge Advocate General officers to support the U.S. Attorney's Office in Minnesota after sending JAG lawyers to assist prosecutions in Washington, D.C., and Tennessee. Johnson's lawyers argued that the use of JAG prosecutors in matters that lack a military connection violated the Posse Comitatus Act, an 1878 statute that generally limits the military's role in civilian law enforcement, as well as Defense Department regulations.
Eleven former JAG officers filed a brief backing Johnson's position, asserting that the government had "crossed a perilous line." The filing drew national attention to the case and to the broader question of when and how military lawyers may participate in civilian prosecutions.
U.S. Magistrate Judge Shannon Elkins disagreed with the defense. In her written decision she found that Congress, through two separate statutes, created exceptions to the Posse Comitatus Act that authorize the attorney general to appoint members of the armed services as special assistant U.S. attorneys to prosecute civilians. "If Congress passes statutes giving the Department of Justice the authority to appoint active military personnel as SAUSAs to prosecute civilians, that is the law," she wrote.
Judge Elkins also addressed Defense Department policy guidance, which she noted describes it as "ill-advised" for JAG officers to prosecute civilians in cases unrelated to the military. She concluded that those regulations do not provide the court with the power to disqualify an assigned military lawyer from Johnson's case.
Kevin Riach, an attorney for Johnson, said he intends to appeal the ruling. Representatives for the U.S. Attorney's Office in Minnesota did not respond to requests for comment.
The ruling resolves the immediate challenge to the military lawyer's participation in this particular prosecution, while leaving open the possibility of further litigation on the issue through the appeals process. The decision highlights a statutory tension between long-standing limits on military engagement in civilian law enforcement and legislative exceptions that Congress has enacted.
Context and implications
- The ruling affirms that statutory exceptions can permit the attorney general to appoint active-duty military lawyers as special assistant U.S. attorneys in civilian cases.
- The case received heightened attention after former JAG officers publicly supported the defendant's challenge.
- The defense has stated an intention to appeal, so the legal question may reach higher courts.