Dem
47
GOP
53
Federal judges are a cautious and deliberate lot. They tend to move slowly and carefully, a pace that some describe as "glacial," and that bad actors can exploit. At the same time, it's not necessarily a bad thing to ensure all the t's are crossed and i's are dotted before sending someone to federal prison. ICE agents could learn something from the courts on that score.
But this caution seems to have led to some rather brazen examples of federal agents and attorneys who work for Donald Trump violating court orders. And the courts are struggling with how to handle this unprecedented turn of events. As a general rule, the feds and Department of Justice attorneys are the gold standard for comportment and adherence to the rule of law. But these days, well, while it's tough to turn around an aircraft carrier, federal courts have come to the realization that we're not in Kansas anymore and that the "presumption of regularity" long enjoyed by government attorneys no longer applies. This is particularly true when the real source of the problem stems from a corrupt and lawless attorney general like Pam Bondi. Even Bill Barr had his red lines. But "AG" Bondi believes, like Trump, that she is limited only by Trump's morality. Whatever he says goes. Thankfully, there are grand juries that will follow the law and are not beholden to Trump and his revenge campaign, so some basic guardrails are holding.
And the courts, too, are starting to hold bad actors in contempt. There are, we should point out, two types of contempt charges: civil and criminal. Civil contempt is pretty straightforward. For example, say an ICE agent has violated the court's order and an attorney appears in court and confirms the violation and can't say when/if the order will be followed. The Court can then order a fine of a few hundred dollars a day to be paid by the attorney, the client, or both until the order is complied with. We saw that recently when U.S. District Judge Laura Provinzino ordered assistant U.S. Attorney Matthew Isihara to pay a $500 fine for every day that the government failed to return a released detainee's property and identification documents. The items were immediately returned, so no fines were imposed. In other cases, there are a lot of threats and frustration but not much follow through. But the violations of court orders keeps growing, and once that trust and presumption of good faith is gone, it is difficult to get back. For the linked article, The New York Times talked to Harvard Law professor Noah Feldman. "It's not their job or temperament to seek confrontation with the executive branch," he explained. But, noting the unusually pointed judicial language, he added: "If they feel their orders are not being followed, they know that's the definition of a challenge to the rule of law."
A couple of judges have threatened criminal contempt, but none has pulled the trigger... yet. Criminal contempt carries the possibility of jail time, so there are a number of procedural hoops to jump through to satisfy due process. First, there has to be a clear order that all parties and attorneys have notice of. If that order is violated, the court can issue an Order to Show Cause why the party or attorney should not be held in contempt, in which the court sets out the essential facts that constitute the contempt. That is the official start of the criminal contempt process. A date is set for a contempt proceeding in which witnesses are called, just like a mini-trial. The court has to appoint a prosecuting attorney and there is a right to a jury. The evidence has to show an intentional violation and the burden of proof is beyond a reasonable doubt, just like in any criminal trial. Add to that the optics of holding government attorneys in criminal contempt and the reluctance to take that step is a little more understandable. Still, there are signs that the courts' patience is wearing thin. Chief Judge Patrick Schiltz threatened criminal contempt after finding that the Trump administration had violated more than 90 court orders in January alone. "The Court is not aware of another occasion in the history of the United States in which a federal court has had to threaten contempt—again and again and again—to force the United States government to comply with court orders," Schiltz said.
U.S. District Judge Jeffrey Bryan scheduled a criminal contempt proceeding for March 3 for the repeated violations of orders to return personal property to released detainees. At the hearing, the judge grilled U.S. Attorney for Minnesota Daniel Rosen over the failure to return personal property in multiple cases. As of this yesterday, the judge has not issued a ruling and it is unclear whether the DoJ and ICE have finally complied with all of the court's orders. But the point is, Trump's underlings keep approaching, and often crossing, what is supposed to be a bright red line. At very least, that is going to make it much harder for them to do their jobs, as judges will begin to go through everything with a fine-toothed come. At most, one of these days, maybe sooner rather than later, a judge is going to throw the book at one or more executive branch employees (which will hurt a lot, because law books are very thick). At that point, once a precedent (in a manner of speaking) is set, the floodgates might open. (L)