A federal magistrate judge in Minneapolis has concluded that federal statutes authorize the Department of Justice to use active-duty military lawyers to prosecute civilians, and therefore a court cannot bar those assignments on the ground that they violate the Posse Comitatus Act.
U.S. Magistrate Judge Shannon Elkins reached the ruling in a case brought by a Minnesota defendant who objected to being prosecuted by a member of the armed services. The defendant, Paul Johnson, was charged in January with assaulting a Customs and Border Protection agent during a period when the Trump administration increased immigration enforcement activity in the state.
During that enforcement surge, the Department of Defense assigned attorneys from the Judge Advocate General’s Corps to assist the U.S. Attorney’s Office in Minnesota, following earlier deployments of JAG personnel to assist prosecutions in Washington, D.C., and Tennessee.
Johnson’s legal team argued that using JAG attorneys to pursue civilian prosecutions that lack any military connection ran afoul of the Posse Comitatus Act, an 1878 statute that generally restricts military participation in civilian law enforcement. They also relied on Department of Defense regulations that, the defense said, limit JAG prosecutions to matters in which the military has an interest. The defense asked the court to remove the military attorney from the case. The challenge attracted broader attention after 11 former JAG lawyers filed a supporting brief, warning that the government had "crossed a perilous line."
Judge Elkins disagreed with the defendant’s contention that the practice violated federal law. She found that Congress, through two other statutes, had created exceptions to the Posse Comitatus Act that permit the attorney general to appoint active military personnel as special assistant U.S. attorneys (SAUSAs) to prosecute civilians. In her written ruling she stated: "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."
At the same time, Elkins acknowledged an element of the defense’s position. She agreed that the appointment at issue in Johnson’s case ran afoul of binding Defense Department regulations, which confine JAG attorneys to prosecutions "in which the Army has an interest." The judge noted that those regulations describe it as "ill-advised" for JAG lawyers to pursue civilian prosecutions that lack a military nexus.
Despite finding a regulatory inconsistency, the magistrate concluded that the court lacked authority to disqualify the military lawyer assigned to Johnson’s prosecution on that basis. The ruling leaves open the statutory authorization that the judge determined supersedes the regulatory limitation in this context.
Kevin Riach, counsel for the defendant, said he plans to appeal the decision. Requests for comment sent to representatives of the U.S. Attorney’s Office in Minnesota were not returned.
Case background and legal posture
The dispute centers on the tension between a long-standing statutory prohibition on military participation in civilian law enforcement and congressional statutes that the judge interpreted as exceptions permitting DOJ appointments of active-duty military lawyers as SAUSAs. The defense emphasized statutory and regulatory constraints while the government relied on the authority conferred by Congress.
Current status
The magistrate’s decision allows the use of the JAG attorney to continue in the prosecution of Paul Johnson. The defense has signaled it will pursue appellate review of Elkins’s ruling.