The nightmarish problem with trying to make Trump obey court orders

Top officials within the Justice Department, the State Department, and possibly even the White House may be barreling toward a criminal conviction for contempt of court. It is far from clear, however, whether anything will happen to them even if they are convicted. On Wednesday, Chief Judge James Boasberg determined that he has “probable cause” to conclude that the Trump administration officials who defied one of his orders — which required the administration to halt deportations under an illegal order invoking a wartime statute — should be held in contempt of court. (Contempt is a process used to punish people who violate court orders, sometimes with imprisonment.) Boasberg’s order concludes that, unless the government provides due process to the people who were deported by allowing them to challenge their deportation in federal court, he will identify the officials responsible for this defiance and subject them to a criminal trial. Boasberg’s original order halting these deportations was eventually vacated by five of the Supreme Court’s Republican justices, who argued that the plaintiffs in that case brought their lawsuit in the wrong court. But, as the Supreme Court said in United States v. United Mine Workers (1947), “a defendant may be punished for criminal contempt for disobedience of an order later set aside on appeal.” As Boasberg lays out in his Wednesday opinion, the Trump administration defied his original order by flying many individuals to El Salvador and turning them over to Salvadorian officials, who placed them in a notorious prison, even after Boasberg ordered these deportations to be halted and any planes that were still on their way to El Salvador to be turned around. It’s unlikely that Boasberg will be the last judge to consider contempt charges against this administration. Judge Paula Xinis, the judge overseeing the high-profile case about Kilmar Abrego Garcia, who was deported to El Salvador in defiance of a court order, appears to be laying the groundwork for contempt proceedings against Trump officials. But even if Boasberg or Xinis are able to identify who is responsible for the government’s defiance of court orders — an uncertain proposition because the Trump administration is unlikely to cooperate with any investigation into its internal decision-making — it is not at all certain that any Trump official will face any consequences for their actions, at least so long as Trump is president. In a famous essay on the courts, Alexander Hamilton argued that the judiciary “will always be the least dangerous” of the three branches of the federal government, because it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” When someone violates a federal court order, that order is typically enforced by the US Marshals Service, which is a law enforcement agency housed in the Justice Department. Trump could potentially order the DOJ not to enforce any decision handed down by Boasberg or Xinis. Similarly, while federal law provides that federal courts have the “power to punish by fine or imprisonment” anyone who disobeys their orders, fines are collected by executive branch officials and paid to the US Treasury, which is also part of the executive branch. The Federal Bureau of Prisons is part of the Justice Department, which, again, is part of the executive branch. The head of the executive branch of the federal government is Donald Trump. Significantly, Boasberg points to a provision of the Federal Rules of Criminal Procedure, which requires him to “appoint another attorney to prosecute the contempt” if the Trump administration refuses to prosecute its own officials. Even if Trump’s Justice Department tries to sabotage this proceeding by refusing to prosecute, the trial could still happen with a court-appointed lawyer sitting in the prosecutor’s chair. However, any enforcement of a verdict would likely be impossible. Indeed, a federal appeals court just signaled that it is very much aware of the danger that Trump will thwart any attempt by the judiciary to bring his administration into compliance with the law. On Thursday, the United States Court of Appeals for the Fourth Circuit rejected the Trump administration’s request to cut off many of the proceedings in Xinis’s courtroom. “We shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision,” a decision that mostly favored Abrego Garcia, Judge J. Harvie Wilkinson wrote in that opinion. But Wilkinson, a Reagan appointee who Republican President George W. Bush considered appointing to the Supreme Court, also ended his opinion with a warning that the executive and the judiciary “come too close to grinding irrevocably against one another in a conflict that promises to diminish both.” In a battle between the executive and judicial branches, Trump, Wilkinson admitted, “may succeed for a time in weakening the courts.” So what can be done about the Trump administration’s defiance of court orders? Ultimately, if Trump or his subordinates are held accountable for their defiance of court orders, it will be because the courts — or maybe Congress — exercise their authority in ways that Trump cannot stop. The Constitution contemplates a pretty straightforward remedy against a lawless president: impeachment and removal from office. Realistically, however, it takes 67 votes in the Senate to remove Trump, and the Senate wasn’t even able to find 67 votes to disqualify Trump from office after he incited a violent mob to attack the US Capitol in 2021. So the likelihood of a successful impeachment seems vanishingly small. Another possibility is that, if Trump administration officials are convicted of contempt, they may be fined or imprisoned after Trump leaves office. The next president could potentially order law enforcement to carry out court orders that Trump defied, although it remains to be seen whether the possibility of future fines or imprisonment has any impact on Trump officials’ behavior. Additionally, federal courts have full authority over which lawyers are admitted to practice before them. So, to the extent that the lawyers representing the Trump administration in Boasberg or Xinis’s courtrooms were involved in the decisions to defy court orders, they could be disbarred in Boasberg or Xinis’s courts. The judges could also refer them to their state bar, which could strip them of their license to practice law altogether. This sanction has been used effectively against some lawyers who enabled wrongdoing by Trump. A California state bar court, for example, recommended that John Eastman, a former Trump lawyer who assisted Trump’s failed efforts to overturn former President Joe Biden’s victory in the 2020 election, be disbarred. Because of that recommendation, Eastman cannot practice law in California while the state supreme court decides whether to permanently disbar him. That said, it’s not yet clear whether any of the officials responsible for the illegal deportations are lawyers, much less lawyers who have appeared in Boasberg or Xinis’s courtrooms. Some of the lawyers representing the government in these cases, moreover, appear to have acted honorably. In an early proceeding in Abrego Garcia’s case, for example, Xinis asked the government’s lawyer why the government cannot return Abrego Garcia to the United States. The lawyer’s response was, “The first thing I did was ask my clients that very question. I’ve not received, to date, an answer that I find satisfactory.” So, while disbarment might allow the courts to reach some officials who may have played some role in the Trump administration’s defiance of court orders, it’s unlikely to provide a complete remedy. One other chaos factor hanging over Boasberg and Xinis is the Supreme Court itself. This is, after all, the same Supreme Court that recently held that Trump is allowed to use the powers of the presidency to commit crimes. So there’s no guarantee that the justices won’t sabotage any contempt proceedings against Trump administration officials.

What really matters

The nightmarish problem with trying to make Trump obey court orders