WASHINGTON — The Trump administration has been accused of ignoring or flat-out defying recent federal court orders, with two judges now weighing contempt findings against officials.
Washington-based District Judge James Boasberg ratcheted up the pressure Wednesday when he announced there is probable cause to find the government in contempt.
Officials had shown "willful disregard" for his order that planes carrying Venezuelan alleged gang members be returned to the United States before they could be deported to El Salvador, Boasberg wrote.
Separately, the federal judge presiding over the case of Kilmar Abrego Garcia, the man the government wrongly deported to El Salvador, chastised the administration Tuesday for its inaction amid signs she would also consider whether to hold officials in contempt.
Her warning follows a Supreme Court decision that said the government must “facilitate” Abrego Garcia's return to the United States.
“I’ve gotten nothing,” said Judge Paula Xinis of the U.S. District Court for Maryland. “I’ve gotten no real response and no real legal justification for not answering.”
Although the two cases are on different tracks, there will be further court proceedings in both.
First, as Boasberg wrote in his order, the government has the opportunity to "purge" the contempt finding simply by complying with the original order. In the Venezuelan case, that would mean giving the men sent to El Salvador the chance to argue that they should not have been deported.
In the Abrego Garcia case, Xinis has ordered that officials show what efforts they have made to facilitate his return before she decides what to do next. If Abrego Garcia is returned to the United States during that time frame that would presumably resolve the issue.
If the government still does not come into compliance, then both judges can seek to take further action.
Criminal contempt, which is what Boasberg is considering, usually requires charges by the Justice Department, which the president oversees. A president can void criminal contempt by issuing a pardon.
But Boasberg said that if the government refuses to prosecute, he would appoint an attorney himself who could carry out that function, as has happened in other cases.
In one recent example, a judge in New York appointed lawyers to prosecute Steven Donziger, an environmental lawyer who was convicted of contempt in 2021 for defying orders related to a lawsuit he spearheaded over oil pollution in Ecuador.
One complication for Boasberg is that in the Donziger case, the private lawyers were still subject to supervision by the U.S. attorney general.
Another option is a process known as civil contempt. That involves a judge issuing an order holding either the government writ large or an officer of the government in contempt. The judge could impose daily fines or even order someone jailed until the contempt is purged. Civil contempt is not pardonable.
Judges are generally reluctant to hold U.S. government litigants in contempt, but they have done so. During the Obama administration, a judge held the Interior Department in contempt for imposing a moratorium in 2011 on offshore oil drilling after the Deepwater Horizon disaster.
In the 1990s and the early 2000s, both Clinton and Bush administration officials were held in contempt during litigation over the federal government’s mismanagement of funds held in trust for Native Americans.
Neither of those cases involved threats of jail — only fines levied against the U.S. government.
Under long-standing precedent, the president cannot be held in contempt because the president is not bound by court injunctions against the federal government.
Is jail an option?
What if a judge decided that jailing an officer of the government would be the only way to enforce a court order?
The option is complicated by the fact that federal contempt orders are enforced by U.S. marshals. The marshals are part of the executive branch, not the judicial branch, but their mission is to both "enforce federal laws and provide support to virtually all elements of the federal justice system."
The president, who oversees the marshals, could order them not to enforce a contempt order against an executive branch official — although that would violate the law.
“For the president to call off the marshals would flagrantly violate the statute charging the marshals to carry out court orders, as well as a norm unbroken since the 1800s that presidents do not defy federal court orders,” wrote Nicholas Parillo, a professor at Yale Law School who reviewed data on thousands of court filings in an extensive 2018 article on contempt.
David Noll, a professor at Rutgers Law School, noted in a recent Democracy Docket article that federal rules appear to allow judges, if needed, to bypass the marshals and hire other parties to enforce their contempt rulings.
The federal rules of civil procedure, Noll added, specify how certain types of “process” — the legal term for orders that command someone to appear in court — are to be served. The rule states that, as a general matter, process “must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose.”
“To be sure, a court that appointed someone other than the marshals to enforce a civil contempt order would be breaking new ground,” Noll wrote.
“Because of the marshals’ long and honorable history of respecting their legal obligation to enforce federal courts orders, the courts have rarely, if ever, had to turn to other parties to have their orders enforced," he said.
Local police and sheriffs could do the job, he added, and "unlike the marshals, these individuals would be responsible to the court alone.”
The Supreme Court factor
Another question is what appeals courts, and ultimately the Supreme Court, would do with a contempt ruling against the Trump administration.
Parillo’s research found that while district court judges are willing to issue contempt findings, sanctions are rarely upheld on appeal.
“There are no opinions of the Supreme Court on the subject," he wrote. "When the courts of appeals hear a potentially relevant case, they usually dispose of it on narrow, case-specific grounds in a deliberate attempt to avoid the bigger and more portentous issues about whether and when judges can use contempt sanctions against the federal government."
In a 1911 ruling, in Gompers v. Buck’s Stove & Range Co., the Supreme Court described the need for courts to be able to enforce their orders through contempt but do so sparingly.
“The power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law,” the opinion says. “Without it, they are mere boards of arbitration, whose judgments and decrees would only be advisory."
The justices warned that without the power of contempt, the authority of the court would be derided.
"If a party can make himself a judge of the validity of orders which have been issued, and by his own disobedience set them aside," the opinion warns, "then are the courts impotent, and what the Constitution now fittingly calls the ‘judicial power of the United States’ would be a mere mockery.”
