Last week, a federal judge asked three different entities whether he had the authority to discard the United States’ “statement of interest” in a civil case brought by convicted Mesa County clerk Tina Peters.

This week, he received three different answers.

Mesa County jurors convicted Peters in 2024 for her role in a security breach of her office’s voting equipment. She is currently serving a nine-year prison sentence. While the state’s Court of Appeals reviews her conviction, Peters has filed a federal petition for “habeas corpus,” a legal tool used to challenge one’s confinement. Specifically, Peters is seeking to be released on bond while her appeal moves forward in state court.

However, last month the U.S. Department of Justice unexpectedly inserted itself into the case, filing a statement of interest to claim it was reviewing whether Peters’ prosecution was “oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.”

The Colorado Attorney General’s Office, which is litigating opposite Peters, asked Chief U.S. Magistrate Judge Scott T. Varholak to discard the statement entirely, or at least strike the portion alleging political motivations. The office argued it was unprecedented for the Justice Department to claim an interest in a state criminal defendant’s habeas case, and characterized the filing as an act of intimidation.

Varholak held a hearing on April 22, when he probed the Justice Department’s reasoning for making its presence known in Peters’ case. But he also recognized he was in uncharted waters. Not only was the federal government’s statement highly unusual, but it was not clear whether Varholak even had the power to do what the state wanted — discard the statement — given his status as a magistrate judge who is neither appointed by the president nor confirmed by the U.S. Senate.

Instead, Varholak gave the parties a week to research the question on their own.

In a trio of April 29 filings, the results were inconclusive.

“Tina Peters believes that Magistrate Judge Varholak lacks jurisdiction to grant Respondents’ Motion to Strike the Statement of Interest,” wrote attorneys for Peters.

They elaborated that for magistrate judges to decide dispositive motions — meaning those that can potentially dispose of a party’s claims — they need the consent of all parties to the case. Becuase all parties have not consented to Varholak being the final decider on Peters’ habeas case, Varholak might be deciding a dispositive matter for the federal government if he struck the statement.

Also, Peters’ attorneys added, judges have “no authority” to strike a legally authorized means for the executive branch to express its position on a case.

In contrast, the attorney general’s office argued Varholak is within his authority to decide a “somewhat tangential issue” that ultimately has no bearing on the merits of Peters’ habeas case.

“Striking some of the language instead of the entire filing would undoubtedly be a nondispositive ruling because the Statement of Interest would still be a part of the case,” wrote Solicitor General Shannon Stevenson. But she continued that Varholak should discard the whole document “because the Statement of Interest is unhelpful and sets a troubling precedent.”

Finally, the Justice Department reported it found no cases addressing a magistrate judge’s power to discard statements of interest. Further, federal law lists eight dispositive motions that magistrate judges cannot handle without consent, but a motion to strike a statement of interest is not one of those.

Still, striking its statement would “end the mechanism by which the United States asserted its interests in this matter,” the department wrote. In that instance, Varholak’s order would be “functionally dispositive.”

The case is Peters v. Stancil et al.