The courts may not have armies, but they have powers.
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In July of 2007, I was the appellate chief in the US Attorney’s Office in North Alabama when Judge William Marsh Acker, may he rest in peace, requested that my office prosecute Dickie Scruggs for criminal contempt.
Scruggs was a well-known Mississippi lawyer with a civil case before Acker, involving allegations of insurance fraud that impacted Hurricane Katrina victims. Acker believed Scruggs had violated the terms of an injunction entered that required Scruggs to turn over documents in his possession.
The then-US Attorney in Birmingham declined to prosecute. That didn’t end the matter, though. And what happened next is instructive for those wondering how Judge James Boasberg might handle a similar situation in the Alien Enemy Act case, where the government seems disinclined to provide factual information regarding contempt allegations the judge is reviewing.
In our situation, Acker did what he was entitled to do under the Federal Rules: He appointed three attorneys in private practice to act as special prosecutors in the case, pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure. He directed them to file charges. The case moved forward in front of Senior Judge Roger Vinson after Scruggs was charged with violating the terms of the injunction.
Although Vinson ultimately dismissed the contempt charges against Scruggs, it wasn’t because of the unusual move by Acker to appoint private lawyers to prosecute the case. In fact, Vinson expressly noted that was proper in footnote 6 to his order:
The Supreme Court has authorized the use of special prosecutors for criminal contempt … Scruggs attempts to get mileage out of the fact that the U.S. Attorney declined to prosecute, but that is exactly what Young and Rule 42 contemplate … (“[A] court ordinarily should first request the appropriate prosecuting authority to prosecute contempt actions, and should appoint a private prosecutor only if that request is denied.”); see also Fed. R. Crim. P. 42(a)(2) (“The court must request that the contempt be prosecuted by an attorney for the government. … If the government declines the request, the court must appoint another attorney to prosecute the contempt.”).
That option would be on the table for Boasberg too, if he were to refer the matter for contempt proceedings, and the Justice Department, as it almost certainly would, declined to play ball.
Is Contempt a Non-Pardonable Offense?
Criminal contempt is designed to “protect the institutions of our government and enforce their mandates.” To prove contempt, prosecutors have to establish that the court entered a reasonably specific and lawful order that was willfully violated by the person being charged.
Boasberg’s oral order (no, they don’t have to be in writing to be enforceable court orders) included a directive to turn planes around if necessary; and if, as it appears is the case, some government functionaries knowingly violated that order, then the judge might want to vindicate the court’s interest in having its orders obeyed with a prosecution.
One caveat: Because this type of contempt is criminal, there is some possibility Donald Trump could use the pardon power to give a pass to anyone charges are brought against. He could even issue a pardon early on, to prevent a full inquiry.
However, in a recent letter to Trump regarding the importance of complying with court orders, Congressman and constitutional law scholar Jamie Raskin (D-MD) noted that “the President may be unable to pardon a federal employee if found in contempt pursuant to the court’s inherent authority because such an offense may not qualify as an ‘offense against the United States’ [under] U.S. Const. art. II. § 2, cl. 1.”
That means that there would at least be litigation over the extent of the pardon power in this unusual situation. And that would mean a full airing of the facts, and exposure of the Trump administration employees involved in pushing for the deportations — which we are now learning included women and people who weren’t gang members, despite the administration’s claim they were all violent criminals.
There is also the prospect of the court imposing civil sanctions, and the Pardon Clause does not apply to such sanctions.
The courts are not entirely paper tigers when it comes to holding the White House and the executive branch of government accountable. They may not have armies, but they do have contempt powers.
As Raskin also noted:
Judges can even impose terms of imprisonment or confinement [on federal employees or officials]. In fact, in a 1997 brief to the D.C. Circuit, the U.S. Attorney’s Office in D.C. acknowledged that imprisonment of agency officials was a viable option to ensure executive branch compliance with the law.
A Test for What’s to Come
This situation feels familiar. It’s more of Trump against the rule of law. The government not only appears to have flouted Boasberg’s temporary restraining order (TRO), it’s also stonewalling him as he tries to get to the truth of that matter.
Of course, this is only an early procedural skirmish. As we have seen frequently with this administration, judges are using TROs, meant to last only a few days or a couple of weeks at most, to prevent the government from doing damage that cannot be undone while the court gets a baseline on the case.
It’s easy to see why that is so necessary — here, there are hundreds of people in an El Salvadoran hell-hole prison who had no due process to ensure they were, in fact, deportable before the government herded them onto planes.
But whatever the outcome here, the case will continue to a decision on the merits. The government is likely to lose. The Alien Enemy Act applies only when the United States is at war, and we are not currently in a declared war with any foreign country, let alone a Venezuelan gang.
This early procedural issue is a test for what’s to come: whether the Trump administration will comply with court orders.
It is truly remarkable that we are asking that question, and a measure of how lawless this administration is. But it is a necessary question.
The Courts and the People
So far, the administration has at least paid lip service to the notion of appealing instead of disobeying. Forcing the administration to comply with judicial review may not seem like a lot, but right now it is everything. The more pushback there is against the view that judicial decisions that run contrary to this administration’s policies are illegitimate, the better.
And there has been far too much talk of impeaching judges — simply because their decisions interfere with Trump’s agenda — than a democracy can tolerate.
Democracy — we are being reminded, as protests crop up across the country — is a participatory exercise. If you want one, you have to work at it.
As some people begin to gear up for early April protest marches, others are attending town halls thrown by their Congress members or others, as well as holding “empty suit” meetings with members who refuse to face their electorate. Still others are calling Congress, creating their own ads to make a point on social media, and continuing to engage in civil discourse with the people around them.
What we are learning is that it has the potential to work, that we can step in for the absent guardrails in the White House and Congress, that we can support federal judges who are under attack, and that we can unite with people who we may not agree with on policy issues to defend democracy itself.
It’s a very uncertain and difficult time. But the outlook is not entirely bleak. We have each other.
Adapted with the author’s permission from Civil Discourse with Joyce Vance.
Joyce Vance is a former United States Attorney, currently a law professor, and a legal analyst for MSNBC and NBC.
