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As we await the D.C. Court of Appeals' decision regarding whether contempt proceedings can be held in Judge James Boasberg's courtroom for violations of the temporary restraining order prohibiting the removal of over 200 men to CECOT, we thought it would be useful to review the distinctions between civil and criminal contempt. Criminal contempt is used to punish past conduct; civil contempt is used to ensure compliance with a court order. A contempt sanction is considered civil if it is remedial, or for the benefit of the complainant.
By contrast, it is criminal if the sanction is punitive and meant to vindicate the Court's authority. Contempt sanctions can be criminal in nature even if they arise in the context of civil proceedings. So, in this case, Boasberg's contempt proceedings are criminal in nature because the goal is to punish the government for ignoring the Court's order prohibiting the deportations. He can find the government in criminal contempt of his civil injunction if he finds that the violations were willful or deliberate.
The standard for civil contempt is clear and convincing evidence (more than just a preponderance of the evidence), while the standard of proof for criminal contempt is beyond a reasonable doubt. Significantly, criminal contempt judgments are valid even if, as in this case, the order is ultimately set aside or vacated. Civil contempt, by contrast, may be canceled if the underlying injunction is invalidated. This makes sense, since parties should assume Court orders are valid and comply with them, absent a decision from a higher court.
Finally, the penalties for both criminal and civil contempt include, potentially, fines and prison time. In criminal contempt, the fines and prison time are, consistent with what we write above, punishments. So, that means that criminal contempt sanctions in a federal court can be pardoned, even preemptively, by the sitting president (though the optics of that could be very bad). Because civil contempt sanctions are coercive, and are targeted at compelling some sort of future action, they cannot be pardoned. As you might imagine, a judge who finds themselves pardon-blocked on a criminal contempt charge could try to find a basis for a civil contempt charge.
In the D.C. case, the Trump administration blatantly, almost sneeringly, violated Boasberg's order to keep the planes on the ground and turn any planes already in the air around to return to the U.S. Trump ignored both of those commands. Boasberg found probable cause for contempt and had scheduled contempt proceedings. Those contempt proceedings are currently on hold while the D.C. Circuit Court of Appeals considers Trump's appeal.
As a reminder and as reader M.H. in Te Horo Beach pointed out yesterday, the contempt proceedings in Boasberg's court are different from the Texas cases that prompted the Supreme Court's late Saturday night emergency stay, though those cases also arose out of that original case. The Court's stay prohibited the government not just from deporting the named plaintiffs but also from "remov[ing] any member of the putative class of detainees from the United States until further order of this Court." The Court also ordered the solicitor general to file a responsive brief "as soon as possible" following the Fifth Circuit's ruling denying the plaintiff's request for a stay. Presumably that response will be filed this week.
The cases were brought in Texas because the Supreme Court, in its April 7 order vacating Boasberg's temporary restraining order that prohibited the removal of anyone under the Alien Enemies Act, held that any cases challenging removal under the Act have to be brought in the courts where detainees are being held. That set off a mad scramble by the ACLU to find detainees and bring cases in several district courts in Texas to prevent more disappearances. And sure enough, the evidence shows that Trump had loaded these men onto buses to send them to the same notorious hellhole as the other 200 men. It bears pointing out that the Supreme Court could have avoided all of this by simply adhering to well-settled precedent regarding habeas claims and affirming Boasberg's TRO. It also bears pointing out that its own stay applies to a putative class and appears to contradict its April 7 ruling that each case must be brought individually as a habeas petition. Maybe SCOTUS realized it screwed up?
Finally, in Judge Paula Xinis' courtroom (District of Maryland), she is still trying to ascertain whether the government has done anything in response to her order, which the Supreme Court affirmed, to facilitate the return of Kilmar Abrego Garcia. She ordered expedited discovery, which was affirmed by a very pointed ruling from the Fourth Circuit Court of Appeals (we wrote about this last week). But—surprise, surprise!—the DOJ has obstructed all efforts to get that discovery. On Tuesday, Xinis slammed the government for "specious" assertions of privilege and other bogus claims to deny plaintiffs relevant information. "Given that this Court expressly warned Defendants and their counsel to adhere strictly to their discovery obligations... their boilerplate, non-particularized objections are presumptively invalid and reflect a willful refusal to comply with this Court's Discovery Order and governing rules," she wrote. "Defendants have known, at least since last week, that this Court requires specific legal and factual showings to support any claim of privilege. Yet they have continued to rely on boilerplate assertion. That ends now."
While all eyes are on the Texas cases, those men are still in the country. It's the Abrego Garcia case where the rubber really meets the road. The government continues to maintain that it can't do anything to facilitate Garcia's return—that he is beyond their control. Presumably that also applies to the 200 men currently languishing at CECOT—how are they supposed to secure the process that everyone agrees they are due?
How will the Supreme Court handle this rather glaring loophole in its order? Will it say that it just has to take the government's word for it that Garcia (and the others) are beyond its reach? Or will it look at the facts, determine that the government does have the ability to bring him back, and order the administration to do so? If the Supreme Court capitulates, throws up its hands and says, "well, he's out of the country, there's nothing anyone can do," it's game over. The Court has already ruled that a district court cannot certify a class of people that would be protected from deportation under the Alien Enemies Act. Therefore, anyone, whether a U.S. citizen or a tourist on vacation, can be snatched up and sent to CECOT or some other foreign prison before anything can be done to stop it. And while there are lots of attorneys in this country, there aren't enough to play whack-a-mole to find everyone who will be caught up in this dragnet.
The best way out of this is if the Supreme Court finds that Trump's use of the Alien Enemies Act is unconstitutional. But that still won't help the 200 people, including Garcia, who were illegally handed over to a dictator and who may never see the light of day again. (L)