Yeah? Who’s Gonna Stop Us?

A federal judge has found the government in violation of his order and is proceeding toward criminal contempt. It’s a dicey situation.

The government violated a direct court order… once again.

This time it was a clear prior ruling from U.S. District Court Judge Brian Murphy of Boston. He had instructed the federal government back in April to stop putting migrant detainees on flights to third countries—in that case, Libya—without first providing them adequate notice and allowing them a chance to contest their rendition on grounds they faced a reasonable fear of persecution or harm.

This week, the government disobeyed his order. On Tuesday, it moved aggressively to expand its migrant rendition program, this time to include the war-torn nation of South Sudan. On Tuesday, with just 12 hours notice and no ability for the detainees to contact lawyers, the government took migrants from a facility in Texas and put seven of them on a plane, telling them they were headed to South Sudan.

Judge Murphy found that this action violated his court order. Because, well, it did. And he has indicated he will decide what remedy there should be for violation of that order. He’ll do this after the immediate question of what to do about the seven detainees, who are now apparently being held at a facility in the country of Djibouti.

That remedy for violating his order, he indicated, could include criminal sanctions.

Now, I know what everyone is thinking, because I thought it, too. Could include? Why not will? Criminal sanctions? Come on, we’ve heard that before, and nothing has come of it.

In fact, we know that the government violated direct court orders twice before: once by refusing to turn a plane around as ordered by Judge James Boasberg, and later by refusing to facilitate the return of Kilmar Abrego García, as ordered by Judge Paula Xinis. And that order was backed up by the Supreme Court!

And yet, to date, no one has been punished, and Abrego García remains in custody in El Salvador.

Why is this so hard? Why can’t they just hold the government in criminal contempt, arrest and jail the offenders, and reassert the damn rule of law here? If any of us violated a court order, we’d find ourselves facing fines or jail time pretty quickly.

I’m not here to defend a judicial system that doesn’t allow for quick and efficient enforcement of court orders against administration officials. Rather, today I want to explain why the judicial system, acting alone, likely can’t fully take on a White House determined to undermine the courts’ authority. Things are escalating painstakingly and deliberately because this has become a political test, not just a legal one.

So, deep breath. Things are likely to continue to move slowly, to our inevitable frustration and perhaps to the benefit of the wrongdoers. Our system has glaring deficiencies that the current administration is actively exploiting, just as Trump did successfully for years while himself under criminal investigation and indictment. Three fine judges are trying their best to get to the truth and achieve accountability, but as you’ll see below, they are also trying to avoid deepening an already dangerous constitutional crisis, with the White House coming up even further on top.

Inventing ambiguities

The judges exploring sanctions against the Trump administration for directly disobeying orders must feel a bit like parents with willfully disobedient children.

“Charlie, don’t hit your little brother!” says the parent.

Later, little brother comes to complain. “Charlie slapped me!”

“I told you not to do that!” exclaims the parent.

“You said not to *hit* him,” Charlie says with a smirk. “You didn’t say I couldn’t *slap* him.”

In this case, Judge Murphy ruled back in April that migrants couldn’t be sent to a third country without “meaningful” notice, but the government claims this was satisfied by giving the migrants “roughly 24 hours” notice before removal.

The exact number of hours is in dispute, as the plaintiffs say it was closer to 12, but in any event on Wednesday the government went before Judge Murphy saying it believed notice 24 hours was sufficient and that any “misunderstanding” was the result of Murphy’s order.

That’s right, they blamed the judge for them violating his order. Look what you made us do, all because you weren’t clear enough.

Judge Murphy acknowledged that while his April order did not specify the exact amount of notice required, 24 hours was still never going to cut it. And in this case, there was an important ruling to back this up.

The Supreme Court said last week that the government had violated the due process rights of Venezuelan migrants it sought to render to El Salvador by not giving them adequate time to challenge their removal. “Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster,” the High Court said Friday.

The government had this order in hand when someone decided that 24 hours was still enough notice for migrants from the same Texas facility to be put on a plane to a different third country, in this case South Sudan.

To impose criminal sanctions that can withstand aggressive appeals, judges need to make their orders completely airtight, even against the most absurd arguments. To prove this point, Judge Murphy has already had to clarify his ruling that his order not to remove migrants to third countries extended to the entire government, not just the Department of Homeland Security.

Why? Because following his earlier order directed against DHS, the government transferred detainees to the authority of the Defense Department, and then that department sent those detainees on to El Salvador.

“Oh, you told us only DHS couldn’t transfer the migrants. You didn’t say anything about the Defense Department!”

I can just imagine the fury this would provoke in any judge. It’s a never-ending shell game, being played in bad faith by the government itself. If a private party played games in a remotely similar way to violate the spirit of a court order, it would very quickly find itself in hot water.

So why not the federal government?

Who would prosecute

Judges can make all the rulings they want. They can order criminal referrals for those in contempt and seek fines and jail time. But there is an initial hurdle: Who would conduct the prosecution?

Let me first be clear that we are talking about a criminal contempt referral, at least in Judge Murphy’s case. That is to say, the court would be seeking to impose criminal sanctions upon certain persons for violating its past order. This should be distinguished from a civil contempt order, which is intended to force future compliance with a court order.

For criminal contempt, the process is spelled out in Rule 42 of the Federal Rules of Criminal Procedure.

Two things to note. Part (a) says that someone can be punished for contempt “after prosecution,” and part (a)(2) allows for the appointment of a third party prosecutor. Any request that a contempt be prosecuted must first go to an attorney for the government “unless the interest of justice requires the appointment of another attorney.” If the government declines the request, the court must appoint another attorney to prosecute the contempt.

The DoJ could, and probably would, decline to prosecute someone referred by a court for criminal contempt. No problem, though, right? Under Rule 42, the judge can appoint a prosecutor if the DoJ declines to prosecute. And that’s precisely what Judge Boasberg is contemplating doing in his case, where the government disobeyed his order to turn a plane bearing migrants to El Salvador around.

Problem solved, right? Well, maybe, maybe not. This may make your head spin a little, but bear with me.

Some legal scholars, such as Prof. Steve Vladeck of Georgetown, have seriously questioned whether allowing courts to effectively conduct their own prosecutions would pass constitutional muster under separation of powers. He wrote back in April,

There’s just one small problem: Insofar as it authorizes such an appointment, Rule 42(a)(2) is almost certainly unconstitutional under the Supreme Court’s current separation-of-powers jurisprudence. And current doctrine aside, I think that it’s also inconsistent with more fundamental separation-of-powers principles.

That’s because such prosecutors wield executive rather than judicial power. And in recent years, the Supreme Court has held that enforcement of federal laws is exclusively the purview of the executive, and courts shouldn’t be allowed to appoint people with executive powers.

On the other hand, the Supreme Court did encounter one such case before, back in 2023, but it didn’t rule directly. Rather it simply declined to hear a petition by a party who had claimed his criminal contempt prosecution by an appointed private attorney was unconstitutional.

SCOTUS passed on dealing with the issue then, but the stakes here are far higher. OIt would be facing a criminal contempt referral of a Trump administration official that the DoJ refuses to prosecute, but for which a federal judge wants a private attorney to press the charges. We could easily see the whole thing being stopped in its tracks by the conservatives on the High Court.

The judges no doubt have this in mind as they seek to navigate how to proceed.

Who would perform the arrest

There’s a related question to who would prosecute. Who would physically arrest someone charged with criminal contempt? Normally that would fall to the U.S. Marshals Service. But as I wrote back in March in the context of civil contempt sanctions,

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.

I’m afraid to say that if a judge does not have the power under our Constitution to appoint a third party prosecutor, despite what Rule 42(a)(2) says, then they probably can’t constitutionally appoint someone to go arrest someone for criminal contempt. It’s either the U.S. marshals or no one.

And just imagine the chaos that would ensue if the Justice Department not only refuses to provide U.S. marshals, but uses them to actively defend the official from arrest. How far does the court’s power go then?

These are all matters the three courts considering contempt proceedings are contemplating—as it slowly sinks in that they have very little power in a system ready to disregard their orders.

On the other hand, the Trump administration still needs the courts to carry out other parts of its agenda, including the prosecution of its political opponents, its impoundment of congressionally appropriated funds, its efforts to reshape the federal bureaucracy, and its gross violations of the Emoluments Clause, just to name a few.

In short, each side is now inching up to the edge of a full confrontation to see which side backs down and how. Judges want their contempt sanctions to be as appellate-proof as possible, and they don’t want to force a showdown over the marshals or the Department of Justice that would wind up humiliating the judiciary. For its part, the White House wants to show it is obeying the letter if not the spirit of the law so that it can continue to use the courts when it needs to.

Forcing courts to defend the bad guys

We need to add one last wrinkle to all this. Up till now, courts have been able to hold the higher moral ground because many of the people illegally rendered to El Salvador had no criminal background or were sent there as a result of “administrative error.” The White House has had to respond by attempting to paint those people as criminals after the fact, which is how we get to absurd photoshopped MS-13 tattoos on Abrego García’s knuckles.

But the White House, under the watchful eye of Stephen Miller, is getting smarter. The people that it is putting on planes to third countries today are actual criminals, at least according to their publicly available backgrounds. That puts judges in the more difficult position of defending the due process rights of convicted murderers, rapists and child predators.

The White House is betting there will be less public appetite for defending such people in the name of preserving due process rights for all. To the press, its spokespersons will be able to blast “activist” and “liberal” judges for trying to stop Trump from doing what he was elected to do, i.e., keep the country safe from dangerous migrant criminals.

The judges know and understand that they are being set up, and so they want to be extra careful not to bend too far. Everyone is entitled to due process, but what that means for convicted criminals is different than those who are merely here on expired visas, for example.

So when judges take their time in these cases, I am grateful, even while feeling extremely frustrated. In a properly functioning democracy, after all, any executive official who defied a direct court order would be fired on the spot, and if not, the whole lot would be impeached by Congress.

That’s of course not going to happen with today’s craven and captive GOP. But the threat of impeachment and removal was the guardrail our founders thought would prove enough. That it now falls to our judges to try and rein in the executive branch on their own is worrying in the extreme.

In my eyes they deserve our understanding and patience for the heroic and daunting challenge this presents, rather than our derision for not taking far bolder, more immediate action.

And to those who respond to news of the courts’ threats of criminal sanctions with, “Who cares? It won’t matter!” let me express this: I get it. I do. And it’s frustrating.

But we must continue to care, and all this work in search of truth and in support of the rule of law must continue to matter. We cannot allow ourselves to give in to cynicism and defeatism, doing the work of the fascists for them.

Whenever federal judges take the bold step of threatening criminal sanctions upon Trump administration officials, even while knowing that they could be ignored, humiliated and targeted for it, we must celebrate their courage and uplift their actions. They must know they have our full support so others will take heart in their actions and spread courage as a contagion more powerful than fear.