The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Update from South Dakota: Judge Kornmann Appoints Special Prosecutor To Try U.S. Marshals For Contempt

The brewing separation of powers conflict continues.


Recently, I wrote about a brewing separation of powers conflict in South Dakota. In short, a federal judge sought to hold in contempt employees of the U.S. Marshals Service who refused to disclose whether they are vaccinated. The District Court said if the DOJ would not prosecute the Marshal employees, it would appoint a special prosecutor. You can read all the sordid details here. Since that post, there have been several updates.

Unsurprisingly, the Department of Justice "respectfully decline[d] to accept this matter for prosecution." (I'm sure Merrick Garland was thrilled with this request). At that point, the District Court denied as moot the AUSA's request for pro hac vice admission. (Seems like a petty move). Today, the District Court entered an order appointing a special prosecutor. But there are several twists and turns.

First, we get a meandering story about how the former U.S. Attorney for the District of South Dakota was unable to take up the case.

Following the refusal of the United States Attorney's office and that of the United States Department of Justice to prosecute the three named defendants, I appointed Attorney James E. McMahon, a retired attorney living in Colorado, all as required by Federal Rule of Criminal Procedure 42. Mr. McMahon was always a very talented and hard working attorney. He is a past United States Attorney for the District of South Dakota. He agreed to the appointment with the understanding that, if the charges proceeded to trial, he did not wish to again begin the practice of law with all the stresses involved. He traveled from Colorado to Sioux Falls to imdertake discussions with the other three former United States Attorneys now representing the defendants in the criminal contempt matter. He spent considerable time in negotiations in an attempt to resolve these matters. All were fruitless and accomplished nothing, despite Mr. McMahon's best efforts.

Second, we learn that this case has nothing to do with vaccinations:

The Department of Justice, acting through the Marshals Service, has apparently adopted a public policy to the effect that DOJ policies may trump lawful federal court orders. This cannot be permitted. Despite some public confusion, this case has nothing to do with requiring anyone to be fully vaccinated.

Third, he continues to charge DOJ with dishonesty and illegality:

The defendants and the Department of Justice continue to maintain a position that the only failures here were failures of communications. That is simply not true. The cases of the three defendants involved deliberate and contemptuous removal of defendants in custody pursuant to lawful court scheduling orders, thus preventing timely scheduling as previously ordered. . . . I sincerely regret that the disputes must continue but I cannot ignore what may be a significant conflict between the Federal Judiciary and the Executive branch of our government.

Fourth, the Court appoints Tom Fritz, a Rapid City attorney to prosecute the federal officers. The Court will pay him $300/hour, plus cover an associate attorney and paralegal. What a waste of taxpayer dollars.

It is now necessary to allow Mr. McMahon to withdraw and be compensated. It is now necessary for the Court to appoint a successor special prosecutor and I appoint Attorney Thomas G. Fritz of Rapid City, South Dakota. He has agreed to the appointment and, like Attorney McMahon, his compensation shall be at an hourly rate of $300 plus all necessary and proper expenses, including the appointment and use of an associate attorney or paralegal or both. The compensation shall be paid by the Administrative Office of the United States Courts. After all, they will be facing three very competent and talented criminal defense attorneys.

Fifth, you are not going to believe the kicker: Judge Kornmann recused. And the Chief Judge of the Eighth Circuit will have to appoint another judge to try the case:

I hereby recuse. It is my understanding that the other Article III judges in the District of South Dakota will also recuse and the appointment of another judge will fall to the Chief Judge of the United States Court of Appeals for the Eighth Circuit.

I did not see that twist coming. Recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

Hopefully, the unlucky judge who gets this case can promptly dismiss it.