A federal judge once again struggled on Tuesday with the petition of convicted former Mesa County clerk Tina Peters to be released from prison while her case is appealed in state court, which implicates multiple legal and logistical dilemmas.

Before a packed courtroom, a full overflow room and with additional listeners on a public call-in line, Chief U.S. Magistrate Judge Scott T. Varholak cautioned that Peters’ hypothetical release was still far from being adjudicated on the merits.

Further, as a magistrate judge who is neither appointed by the president nor confirmed by the U.S. Senate, Varholak is only empowered to make a recommendation to a district judge about the outcome.

Amid questioning about Peters’ specific grounds for release, Varholak raised big-picture concerns. Namely, has any federal court ever granted release to a prisoner in Peters’ shoes? And what would that even look like?

“Are they under my bond? Are they under a state court bond? Are they supervised by federal pretrial release?” he wondered. “What if petitioner violates that bond? Can state court revoke the bond? Do I revoke the bond? What do we do?

“And these are the questions I have because,” continued Varholak, “I haven’t come across — and I don’t think petitioner has cited — a single case ever, in the history of the United States, where a federal court granted habeas on an appeal bond.”

Mesa County jurors convicted Peters last year for her role in a security breach of her office’s voting equipment when she was the GOP clerk. She is currently serving a nine-year sentence of incarceration. While the state’s Court of Appeals reviews her convictions, 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.

Previously, she asked the Court of Appeals to grant bond, but it denied her request.

The federal proceedings have taken on outsize visibility due to Peters’ status as a prominent supporter of President Donald Trump. In March, 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 Varholak to discard the statement entirely, or at least strike the portion alleging political motivations. The office argued to Varholak in April that 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 on behalf of an ally to the president.

Trump subsequently posted on social media that Peters was a “hostage,” a characterization that Colorado’s Democratic attorney general and secretary of state rejected.

However, Varholak convened the latest hearing to address a far narrower issue: Had Peters adequately presented her arguments for release pending appeal to the Court of Appeals prior to raising those grounds in federal court?

Attorney Peter Ticktin, also an ally of Trump’s, indicated he was inclined to only proceed on the one argument that was more clearly directed to the Court of Appeals — that Peters’ continued imprisonment was unconstitutional to the extent it was based upon her First Amendment-protected speech.

Ticktin added he “didn’t pay any attention” to the issue of how a federal court could logistically grant someone release from prison while their state convictions are mid-appeal. 

“I thought it was basically assumed you can have habeas corpus for the purpose of obtaining bail on appeal,” he said.

“Can you cite me any case in American jurisprudence that’s done this?” reiterated Varholak.

Senior Assistant Attorney General Lisa K. Michaels noted that typical habeas cases involve a defendant whose state appeals have been completed.

“There are sort of two things happening at once,” she said, referring to the federal case and Peters’ state appeal, which is likely months away from being decided at the Court of Appeals.

Michaels also raised a 1971 U.S. Supreme Court decision, Younger v. Harris, which directs federal courts not to intervene in ongoing state criminal proceedings. Peters’ attorneys argued Younger “does not apply in habeas world,” but Varholak was not so certain.

“I think we do need to address that Younger issue,” he said.

Varholak ordered the parties to submit briefs about the implications of the Supreme Court’s precedent. Meanwhile, Ticktin described his client as someone in dire need of release.

“If there’s ever a case where someone should be released on bail, it’s this case. We’re holding someone in jail on a white-collar situation among murderers,” he said. “Half this country believes that she’s a hero.”

“That’s not my intent to drag this out,” said Varholak. “They’re complicated issues and I want to make sure we get them right.”

The case is Peters v. Feyen et al.