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.
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.
“That appearance is harmful to our civil-military relations because it suggests military-led law enforcement is the catch-all substitute for regular civilian constitutional due process. So too, diverting JAGs to prosecute domestic civilian crimes siphons them away from their critical military duties.”
The group also said that, unlike DOJ attorneys, who can resign, JAG lawyers are obligated to obey lawful orders from their military superiors.
“When civilian prosecutors are instructed by their superiors to pursue legally flawed or ethically suspect cases, they can resign, as they have done in this district,” they said.
“But JAGs do not have this option—they must obey their military superior’s lawful orders upon possible penalty of criminal prosecution under the Uniform Code of Military Justice (UCMJ) or other adverse administrative consequences that would likely be career-detrimental.”
The Epoch Times reached out to the DOJ for comment but did not receive a response by publication time.