While Congress’s unwillingness to counteract Donald Trump’s escalating authoritarianism has prompted much public handwringing, the past few months have brought out some public frustration with the judiciary’s efforts to rein in Trump. Recently, a Reuters analysis of court records revealed that federal judges around the country found that the Trump administration had unlawfully detained immigrants a staggering 4,400 times, with the administration consistently deploying the same legal arguments that have been slapped down a hundred times already.
In one representative example of frustration, Minnesota District Judge Michael J. Davis wrote that “there has been an undeniable move by the Government in the past month to defy court orders or at least to stretch the legal process to the breaking point in an attempt to deny noncitizens their due process rights,” in an order granting release to one petitioner. Before Border Patrol commander Greg Bovino was unceremoniously dumped following public backlash to the killings of Renee Good and Alex Pretti in Minneapolis, a federal judge in Chicago had ordered him to appear for daily briefings to explain what seemed like continuous violations of a court directive to limit use of force.
On a handful of occasions, federal judges have broached the natural conclusion of this executive defiance, the only real tool that judges have at their disposal to move past the mere issuing of an order to actually enforcing it: contempt. Maryland Judge Paula Xinis raised the prospect of contempt over the Justice Department’s recalcitrance in providing information in the case of the wrongfully deported Kilmar Ábrego García. Minnesota Judge Patrick Schiltz threatened acting ICE Director Todd Lyons with it over the failure to release one particular detainee. Then there is D.C. Judge James Boasberg, who is looking into whether administration officials could be held in contempt over a failure to heed his order for Homeland Security to turn around planes that were removing people under the Alien Enemies Act—a case more than a year old.
This week, a judge in Minnesota finally took the leap and issued a contempt order against the government attorney in a case in which the government had failed to release a petitioner with all his documents despite a court order (this attorney also happens to be a military judge advocate general detailed to the Justice Department, which is a whole separate issue). Matthew Isihara is ordered to pay a $500 fine daily for every day the petitioner goes without the return of his documents.
Yet in the face of all this flagrant disregard of federal court directives—a mix of the malicious and the incompetent—this has been the only formal contempt finding against a public functionary or official, amounting to a somewhat limited fine. Why? Some of it has been Trump-appointed judges running cover for the ailing president, but also, unlike Congress’s refusal to use clear tools at its disposal to preserve its own authority, the courts’ relative inability to constrain and punish executive misconduct and noncompliance is a bit more practical.
In the context of an administration unafraid of reputational damage that might traditionally give pause to government officials, it may be that the only way to force compliance is acute individual consequences for high-level officials who oversee unlawful and often unconstitutional acts. The obvious avenue for that is criminal contempt, which would serve as both acknowledgment and punishment for the fact that, it seems pretty evident, the officials involved are aware that they are and have chosen to be in flagrant violation of court requirements.
One small problem with that: Criminal contempt of federal court is a federal crime, like any other, and who prosecutes federal crimes? It’s certainly not the judges themselves; if one of these processes got far enough along for a judge to make a formal referral to the Justice Department, a DOJ prosecutor would have to pick it up, which in practice would mean that one of the DOJ attorneys who hasn’t already quit over administration overreach would have to bring a case against another executive branch official. A judge could, in theory, appoint an outside attorney as a sort of special prosecutor to take on the case, but that opens up some novel questions about separation of powers given that the prosecution of crimes is generally understood as an executive prerogative. In any case, as a federal crime, this would be something the president could pardon, a power Trump has not at all been restrained about.
The courts have a bit more control over what are known as civil contempt sanctions. These do not require a court to pursue a full-fledged prosecution but instead are intended to force agencies or officials into compliance through means like fines—such as the one Judge Provinzino has levied against Isihara—and potentially detention pending compliance. This avenue gives judges some flexibility to sidestep the constraints of criminal contempt, but it still presents questions around enforcement. It’s unclear exactly how the administration will formally respond to Provinzino’s order. The U.S. attorney for the District of Minnesota, Daniel Rosen, already called it “a lawless abuse of judicial power.” Noncompliance with this contempt order would constitute further contempt and involve additional officials if these directed Isihara not to comply.
Here too, the efforts would likely have to be individualized, identifying and holding accountable the officials making the decision to defy the courts. As Rutgers legal scholar David Noll recently wrote in a paper examining civil contempt against federal executive officers, judges can potentially strip federal officials of immunities and issue fines and professional repercussions like disbarment, though that will itself likely be subject to litigation. The most significant sanction is civil detention, when a court could order an official imprisoned pending compliance.
The problem here is that this also runs through executive branch compliance, specifically the U.S. Marshals. If a federal judge actually orders that a DOJ supervisor or even a high public official like Homeland Security Secretary Kristi Noem or Attorney General Pam Bondi be held until DHS stops refusing to release certain detainees, or the DOJ complies with the law mandating the full release of the Epstein files, would the Marshals comply? They are under statutory requirement to enforce court orders but are ultimately also an agency under the DOJ. Are they going to move forward even if their own leadership orders them to stand down? Noll argues that judges could deputize others, potentially state or local police officers, sheriffs, or retired law enforcement, to carry out arrests, which may be true legally but is difficult to imagine in practice (particularly given Trump officials’ insistence on large security details).
If we’re in a slow-rolling constitutional crisis now, then the aggressive pursuit of contempt charges along one of these lines will likely put us at an acute inflection point from which there will, I think, be a clear before and after. Either the courts possess the power to constrain the executive or they don’t, and if they don’t, then people like Stephen Miller might take it as a sign that they can move forward unconstrained with their authoritarian, white nationalist designs. Still, I don’t think this means a victory for the bad guys; this is the exact kind of situation that would probably break through to the normie voting public and kneecap Trump apologists’ arguments that he’s just another president working with the other branches. Given the fact that a recent YouGov poll found that near majorities of respondents are increasingly willing to use words like “corrupt” and “cruel” to define the Trump administration, this is a pretty favorable environment for the stoking of normie anger.
These are not exactly new questions, but they are unresolved in part because they’ve never really been pushed to the breaking point. The most famous showdown between a federal court and executive branch officials came in 1861, as the Civil War was ramping up. President Abraham Lincoln suspended habeas corpus and was challenged by Supreme Court Chief Justice Roger Taney (writing for a circuit court), in a decision known as Ex Parte Merryman, which ruled that only Congress could suspend the writ in this way.
Federal troops refused to honor the order to release the case’s namesake, John Merryman, and refused to transmit an order of contempt to their commanding officer, General George Cadwalader. Lincoln himself eventually dismissed Taney’s decision, and the whole thing was rendered moot when Congress itself authorized the suspension in 1863. You could say that in this instance the executive officials “won” the confrontation with court power, but this was in the context of an unfolding war on U.S. territory and at an earlier time in the history of the courts and their relationship to executive power.
Part of Trumpworld’s strategy here seems to be to disregard the courts strategically, which is to say, not all the time. While high-profile violations of court orders garner headlines, the administration has also been complying with plenty of directives. It has released withheld federal funds, not interfered with Federal Reserve Governor Lisa Cook’s duties, not taken steps to unconstitutionally end birthright citizenship as that case winds toward SCOTUS, and withdrawn the National Guard from cities, among other things. Even in some of the cases where it initially flashily resisted courts, it has ended up complying; after a good amount of scorn and saber-rattling under intense public scrutiny, officials did bring Ábrego García back, even as they tried immediately to gin up reasons to imprison him.
The calculus, it seems, is to avoid crossing some diffuse line that would represent a full-blown repudiation of the courts’ authority and the consequences that would result in public opinion and within the government itself. The DOJ is already facing a widespread staff exodus, driven in part by the White House’s overt political pressure and a sense of loss of mission. Trump is in polling freefall, and organized, committed community resistance has become the norm in jurisdictions where Noem and Miller have sent their paramilitary blob of federal agents, to the point that the residents of the Twin Cities, at great cost, seem to be on the verge of successfully pushing them out.
So instead of going to war with the federal courts, the administration is judging that it can defy them mostly around the key priority of the nationwide crackdown on immigration and speech, where it can use a mix of procedural tricks and outright noncompliance against what are often already heavily disenfranchised people stuck in a system that is heavily controlled by the executive. These are largely oceans of individual habeas cases that are too numerous and particularized to break through the noise, making them easier to ignore, at least until a judge actually moves forward with a real contempt effort, as Provinzino has now done.
The pursuit of judicial contempt charges might ultimately be necessary to break the administration’s facade of unrestrained power. Even if there are a good number of procedural and practical obstacles to an effective contempt sanction, civil or criminal, it will further shunt Trump and his henchmen into having to publicly embrace authoritarianism, which it turns out is an increasingly losing proposition.
