President Trump's contempt for the courts

Get the Point!

It is neither hyperbole or histrionics for me to state this morning that America is smack dab in the middle of a major constitutional crisis and looming showdown between the "separate" and "co-equal" Executive and Judicial Branches of Government.

The facts:

*Late last week, President Donald Trump announced plans to invoke the Alien Enemies Act of 1798 to expel alleged Venezuelan gang affiliated migrants to Central America. (Please note that this ancient law requires that a "war" against "enemies" must be in effect and no such "war" is currently declared or in effect against Venezuela as an enemy combatant).

*United States District Court Judge James E. Boasberg, recognizing the president's legally flawed premise, ordered the Trump administration to cease its use of the Alien Enemies Act of 1798 as a "pretext for the expulsion of migrants."

The Honorable James Boasberg

*Despite having full knowledge that a federal judge had ordered a halt on the expulsions (pending further judicial review potentially all the way to the United States Supreme Court), the Trump administration boldly placed 238 migrants on a plane bound for El Salvador anyway.

*El Salvador's President Nayib Bukele, a Trump ally who was fully aware of the federal court order enjoining the expulsions, took to social media and joked, "Oopsie...Too late," before noting that the 238 detainees "were transferred to a Salvadoran Terrorism Confinement Center."

*Secretary of State Marco Rubio, also fully aware of the court order that he was legally bound to follow as a sworn executive member of the federal government, made no mention of said order while publicly thanking President Bukele for taking "23 MS-13 members wanted for alleged crimes in El Salvador."

Without question, Secretary Rubio's defiant actions on behalf of the Executive Branch are prima facie evidence of contempt of a valid court order. The question moving forward, however, is if Judge Boasberg formally deems the transfer of migrants contemptuous conduct, how would he enforce sanctions against the administration or individual actors, like Rubio, working under the administration's authority?

On any given ordinary day in America's courts, judicial orders are respected even if disagreed with and whenever they are not adhered to, the individual(s) not in compliance can be punished by sanctions ranging from incarceration (for direct criminal contempt), to fines, to the cessation of operations until further orders of the court(s).

In over two decades of practice, I cannot count the number of times that the mere threatening of contempt compelled compliance by litigants and their lawyers and when one or more failed to comply, they were either locked up, fined up, or both until they followed the court's commands.

In those instances that I personally observed, the court's orders were enforced by law enforcement; on the federal level, that always meant United States Marshals that are attached to each and every District in America. On a state level, that always meant the local sheriff's deputies who serve as bailiffs to ensure order within the courts.

As this weekend's deportations involve the Executive and Judicial Branches of the Federal Government, Judge Boasberg, should he decide to issue a contempt order, would find himself in a sticky situation in that while the U.S. Marshals are assigned to enforce court orders, from serving process for contempt to placing alleged contemnors under arrest, those same Marshals are employed by the Justice Department...meaning the Executive Branch...meaning Attorney General Pam Bondi...meaning President Donald Trump! In essence, the question for the assigned Marshal(s) would be, whose "orders" do they follow, the court's or their bosses? Further, as the sitting president has the authority to pardon any contemnor placed under arrest for criminal contempt, such judicial orders would be exercises in futility.

U.S. Marshals serve multiple purposes within the federal courts, but are employed by Trump's Attorney General Pam Bondi…

Indeed, such is a sticky legal situation and the Trump administration knows this, thus, their pushing the envelope much in the same way a petulant child tries to play one parent against the other when it comes to getting their way.

And yet, juxtaposed to criminal contempt, Judge Boasberg, should he decide to push forward with citations, could levy civil contempt charges (fines) that would not be subject to a presidential pardon. Still, this option is fraught with the same problems regarding the U.S. Marshals, although Boasberg and his judicial cronies in future cases do have another option per Federal Rules of Civil Procedure 4.1, and that would be to assign a neutral law enforcement party/agency to serve and/or enforce orders.

Still, the problem is that should the federal courts deputize a state or local law enforcement agency to serve its processes or arrest contemnors, what happens should the Trump administration ignore findings of civil contempt, or physically block local law enforcement from arresting federal agency heads, employees, or assigns for criminal contempt?

As I have written many times and will repeat many more times in the days to come, jury instructions across America ALWAYS remind that "for over two centuries, we have agreed to live by the Constitution." And as I have reminded time and again in this blog, I've always wondered what happens when "we" no longer agree?

Well, that academic wondering is playing out in real time; not since the eve of the Civil War has the judiciary been relatively neutered in its ability to interpret or force compliance with laws. And lest we forget that since then, even during the worst days of the Jim Crow era, segregationist southern governors, mayors, city council members, and sheriffs largely stood down and obeyed when a federal court judge issued an order or ruling on behalf of civil rights protesters—or acts passed by Congress granting enforcement of Black civil and voting rights.

But niceties and deference are clearly extinct under this second Trump administration, one that not only refused to comply with judicial orders regarding the 238 alleged Venezuelan criminals, but also shrugged its shoulders at a separate order that should have prevented the summary removal of Dr. Rasha Alawieh, 34, a Brown University medical professor who was detained and flown to Lebanon last week by the Trump administration in direct defiance of U.S. District Judge Leo Sorokin's order that she remain in America pending further legal proceedings.

Regrettably, with court deference being all but extinct in Washington, D.C. for the time being, this obvious constitutional crisis only hastens the moment when theoretical discussions about obeisance move to the specter of force—even up to potentially deadly force—being used to enforce compliance.

Stay tuned...