Judge decides DOJ can use a military lawyer to prosecute civilians in landmark ruling

A federal judge in Minnesota has ruled that military lawyers can prosecute civilians for offenses unrelated to the military, determining that such assignments do not violate federal law and cannot be prevented by a court.

The decision came on Friday from U.S. Magistrate Judge Shannon Elkins in Minneapolis, in a closely watched case challenging the legality of a military lawyer prosecuting a civilian.

The case centered on Paul Johnson, a Minnesota resident charged with assaulting a Customs and Border Protection agent.

This incident occurred in January during the Trump administration's aggressive immigration enforcement surge in the state.

During this period, the Defense Department assigned lawyers from the Judge Advocate General's Corps (JAGs) to assist the U.S. Attorney's Office in Minnesota, following similar deployments to Washington, D.C., and Tennessee.

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Lawyers for Johnson contended that using JAG attorneys to prosecute civilians in cases without a military connection violated the Posse Comitatus Act, an 1878 law generally prohibiting military involvement in civilian law enforcement, as well as Department of Defense regulations.

Johnson sought to remove the military lawyer from his case, gaining national attention and support from 11 former JAG lawyers who argued "the government has crossed a perilous line."

However, Judge Elkins sided with the government, finding that Congress had created exceptions to the Posse Comitatus Act through two other laws.

These exceptions grant the U.S. attorney general authority to appoint JAG lawyers as special assistant U.S. attorneys (SAUSAs) 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.

While Elkins agreed with the defense that the appointment of a JAG lawyer in Johnson's case violated binding regulations, which state such attorneys should only prosecute cases "in which the Army has an interest," she concluded these regulations did not empower her to disqualify the military lawyer.

Kevin Riach, Johnson's lawyer, announced plans to appeal the ruling. The U.S. Attorney's Office in Minnesota did not respond to requests for comment.

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