PoliticusUSA is ad-free thanks to the support of readers like you. Please consider supporting our work by becoming a subscriber.
Thanks to the Supreme Court majority, the President Of The United States has immunity for official acts and can’t be prosecuted. Trump and members of his administration have taken the ruling to mean that they are untouchable.
While the Trump administration has come out and openly admitted that they are defying the courts, there have been clear indications, especially in the matter of the federal funding freeze, that the Trump administration has been defying court orders.
What can be done about this?
Instead of going after Trump, the courts can punish members of his administration.
House Judiciary Committee ranking member Raskin (D-MD) wrote in a letter to Trump:
To your credit, you indicated that your Administration would obey the courts, stating “I always abide by the courts and then I’ll have to appeal it.”
It may therefore behoove you to remind members of your Administration that violating court orders personally exposes them to potential criminal and civil penalties. Federal judges do not need the assistance of the executive branch to impose civil or criminal penalties for violations of a court order.
The Supreme Court has unequivocally stated that: [T]he power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law. It is essential to the administration of justice. The courts of the United States, when called into existence and vested with jurisdiction over any subject, at once became possessed of the power.
Through civil or criminal contempt proceedings, judges can impose monetary fines on government officials who violate court orders and can ensure that the fines are to be paid by the individual government official, rather than allowing such an individual to be indemnified by his or her employing federal agency.
Judges can even impose terms of imprisonment or confinement.
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.
Judges’ inherent authority includes the power to appoint a private attorney to conduct the prosecution of a criminal contempt proceeding should the government decline, and is reflected in Rule 42 of the Federal Rules of Criminal Procedure, which lays out the procedure for criminal contempt.
Rule 42(a)(2) states that: [T]he court must request that the contempt be prosecuted by 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.24 This is not an untested hypothetical.
As recently as 2019, a district court has followed this procedure to appoint a private attorney who then successfully prosecuted a criminal contempt proceeding after the U.S. Attorney for the Southern District of New York declined to do so.
Moreover, there may be collateral consequences for refusing to obey a court order besides contempt, particularly for government attorneys who may face disciplinary proceedings and the suspension or revocation of their license to practice law.
Raskin also pointed out in the statement provided to PoliticusUSA that accompanies his letter:
Moreover, Trump may be unable to pardon Elon Musk or other Administration officials or federal employees if they were found in contempt pursuant to the court’s inherent authority, because under the U.S. Constitution, such an offense may not qualify as an “offense against the United States.” Additionally, Trump’s pardon power does not apply to civil sanctions.
While it is true that the Trump administration could decide to ignore the rulings of courts, the court system also has the ability to strike back and enforce their rulings.
This possibility is why Trump administration officials are always named in the lawsuits.
These officials don’t have immunity, and if the courts decide to punish them with their direct authority, Trump may not be able to pardon them.
The courts may not be able to stop Trump personally, but they can punish members of his administration.
Rep. Raskin’s point was that defying a court order would have consequences for his administration and the people in it.
What do you think about Raskin’s letter? Share your ideas in the comments below.
