What Happens When The Administration Defies the Courts?

This is taken from a post on social media yesterday that seemed to strike a chord with readers. I’m reprinting and expanding it a bit here for my newsletter subscribers.

I often get asked what would happen if the federal courts held cabinet members or Trump officials in contempt and then sought to jail them for failure to comply with an order. What if they just refused to obey? What then?

This is not an academic question, or at least may not be soon. Yesterday, for example, a federal judge in D.C. issued a temporary restraining order on Trump’s executive order invoking the Alien Enemies Act. To make clear how serious he was, the judge also ordered planes already carrying deported Venezuelans to turn around and come back to the U.S. (We’re not at war with Venezuela, the plaintiffs had argued, so Trump’s order under the wartime Alien “Enemies” Act is illegal. The judge agreed.)

I haven’t been able to determine yet whether those planes did turn around as ordered. The rhetoric coming out of the White House appears to indicate that it disagreed strongly with the judge. The government filed emergency appeals, however, rather than declare open defiance.

The chance that courts will have to resort to contempt proceedings in order to hold the administration to account still grows with each passing day. Officials such as Press Secretary Karoline Leavitt have declared that, despite federal rulings to the contrary, the president has the power to hire and fire anyone within the executive branch at will.

And the chance that those hit with contempt orders, who are thereafter facing fines and jail time, simply ignore the courts is also higher than it’s ever been.

There are two principal concerns that folks often raise.

First, don’t courts depend on the U.S. marshals, who are part of the Justice Department, to enforce contempt orders? And second, couldn’t the president simply pardon anyone who defied a court order and was found in contempt?

Both good questions.

As far as the U.S. marshals are concerned, historically the courts have turned to them to enforce a contempt order, including arresting those who fail to obey it. The problem is, the U.S. marshals answer to the Attorney General. The Justice Department is now captured by the White House and no longer independent. I could easily see Pam Bondi refusing to allow marshals to be used to enforce the jailing of a Trump official.

But the law doesn’t strictly limit courts to using the marshals for enforcement, and the rules at least strongly suggest that courts can turn to other parties to help enforce orders.

When serving papers upon parties, for example, the rules expressly allow them to be “served by a United States marshal or deputy marshal or by a person specially appointed for that purpose.”

When it comes to enforcement, the rules set some geographical limits for where “[a]n order committing a person for civil contempt of a decree or injunction” may be served. But they are silent as to who can be turned to in order to enforce such an order.

Rutgers law professor David Noll, writing for Democracy Docket, points out that the enforcement rules do not change the general rule that process may be served by a marshal, deputy marshal or person specially appointed for that purpose. “Thus, by its plain terms, Rule 4.1 contemplates that the court may appoint individuals other than the marshals to enforce civil contempt orders,” he concludes.

While I think that still takes a small logical leap, Noll is correct that the use of third parties to enforce a contempt order is consistent with how it’s done to enforce civil forfeiture. It can be U.S. marshals, or the court can appoint people to go seize property. There isn’t a good reason courts should be restricted from using third parties to enforce orders when they are not so restricted while serving parties or seizing their property.

And as the Brennan Center notes, “In 2023, the Supreme Court declined to hear a petition by environmental lawyer Steve Donzinger, who claimed his criminal contempt prosecution by an appointed private attorney was unconstitutional.”

As far as Trump pardoning someone in contempt, remember these are primarily civil cases. That means that any contempt proceedings and penalties would be civil, not likely criminal. And here’s the kicker: That in turn means the president’s pardon power isn’t triggered by them. The Supreme Court noted this distinction in the case of Ex Parte Grossman from 1925. “For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it,” the Court wrote.

We aren’t really to the point where a judge may have to look to appointed parties outside of the U.S. marshals to enforce a contempt order. This has never happened before, and we’d be in new territory for sure. But I could see a federal judge in D.C, alarmed by a refusal by the U.S. marshals to carry out a civil contempt enforcement order, appointing the D.C. Chief of Police to oversee enforcement. It’s not disallowed by the rules, and I’ll bet the courts will be quick to protect their authority if AG Bondi won’t do the job.

Wild times indeed. But if we do see open defiance by the Trump administration, the courts are not without some important cards to play.