How Courts Can Get Trump to Obey the Law

Part II: Criminal Contempt

Public concern continues to grow that Donald Trump will openly defy court orders. And with good reason: His administration has already repeatedly pushed boundaries, requiring courts to consistently order compliance and explore potential sanctions. And Trump’s history of disrespect for courts hardly inspires confidence.

That is why, in the first installment of this series, we discussed in broad strokes the mechanisms courts and the public have used to force Trump and his administration into compliance with court orders. For this second installment, we zoom in on a particularly strong tool in the judicial toolbox, one that a federal court threatened to use just recently against the administration: criminal contempt.

The goal in criminal contempt is to punish parties for wrongdoing. It differs from civil contempt, which is intended not to look back and punish but to compel compliance going forward. This is the sanction Judge James Boasberg of the U.S. District Court for the District of Columbia threatened in JGG.

As a refresher, JGG involved the U.S. government’s transportation without a hearing of Venezuelan migrants to a maximum-security prison in El Salvador. The flights continued even after Judge Boasberg issued a temporary restraining order requiring the government to halt all future flights and recall any flights that had already left. In a ruling a few weeks ago, Judge Boasberg found probable cause for criminal contempt. He then gave the government an ultimatum: either figure out a way to comply with his order, or he would “proceed to identify” the people responsible for violating his order, “and refer the matter for prosecution.” The government is showing no signs of taking the former route, so the latter appears to be the road we are heading down.

What is next? For now, Judge Boasberg’s finding of probable cause is on appeal before the D.C. Circuit. But let’s suppose that the D.C. Circuit upholds the contempt order. What awaits the district court if contempt proceedings progress?

The first hurdle involves finding a prosecutor. In the usual case, the court would refer a criminal contempt matter to the local U.S. Attorney for prosecution. That is unlikely here: the government has already indicated not only that it would not comply with a contempt referral, but that such a request would “unconstitutionally commandeer[] the President’s exclusive and preclusive prosecutorial powers.”

That does not mean the court is out of luck, however. Courts have the power to appoint a special prosecutor to pursue contempt cases when the government refuses. This role can be filled by anyone licensed to practice law in the relevant district. If criminal contempt is to move forward in JGG, it will almost certainly be through this channel.

The next hurdle involves finding a defendant or defendants. A court cannot simply hold “the government” in criminal contempt; it must find individuals responsible for flouting its orders. In this case, that would likely be the official or officials who, with knowledge of the court’s order to halt flights to El Salvador, gave the order to proceed with the flights anyway. Here, reporting has suggested that “White House Deputy Chief of Staff Stephen Miller ‘orchestrated’ the process [of violating the court’s order] in the West Wing in tandem with Homeland Security Secretary Kristy Noem.”

How far down the line of command does one go to extend a contempt finding: Does the court simply hold in contempt the “buck stops here” decision maker? Does it also charge that person’s subordinate? Individual Immigration and Customs Enforcement officers carrying out orders? The answer to these questions lies in the state of mind of each person within the line of command. Criminal contempt is usually understood by courts as a crime of willfulness, so it matters what is in each would-be defendant’s head. In light of this, those who had no knowledge of the court’s order are almost certainly off the hook. Those who knew, however, might find themselves the subject of criminal contempt proceedings.

Finding the evidence to determine the right defendants will be its own challenge. As indicated above, reporting has already identified some individuals who might have played a role in defying the court’s order, but the court will undoubtedly want a more complete record. To do this, the court will need to order the government to turn over documents and answer questions concerning the events that led to the violation of its order. If the government willfully defies those orders, then the court can hold the government in civil contempt. Recall from our last installment that Judge Boasberg was unable to pursue civil contempt against the government because his order was overturned on appeal, so there was no active order that the government was disobeying at the time. A live discovery order changes that. This means we could see civil contempt within a criminal contempt proceeding.

Lurking in the background of these proceedings will be the ultimate “trump” card: the presidential pardon power. The president has the power to pardon crimes against the United States. Criminal contempt falls within that category. To be sure, this would be (even by present standards) an unprecedented use of the pardon power. Some presidents have arguably benefited from pardons they have issued (think George H.W. Bush’s pardon of Caspar Weinberger for the Iran-Contra affair, in which Bush was a key witness). But no president has ever pardoned someone for an alleged crime related to a matter in which he publicly and willfully played a role.

However, if the president does not intervene with a self-serving pardon, the other hurdles are not insurmountable. The court can appoint a special prosecutor, order the government to turn over evidence, and determine who should be held in contempt. Once that happens, it will look like a regular criminal proceeding: The special prosecutor will present evidence, likely to a jury, and a verdict will be reached. If the contempt defendants are found guilty, the court will sentence them to fines, prison time, or both.

For the sake of our nation, let us hope it does not come to that. But if it does, criminal contempt can make sure that justice is done.