I hate to put on my cynic’s hat, but I see a weird childlike faith in daddy figures behind the hope the the good daddy, Supreme Court Chief Justice John Roberts, will stop the mad bad dad Donald Trump. The other archetypal story line at work is the hero’s journey, with Roberts as the hero, which has become a fixture of action movies and most sci fi and fantasy novels. the Hollywood version is that the protagonist is up against impossible odds, yet manages through incredible feats requiring stuntmen and the destruction of a lot of vehicles to prevail.
Since we are not in a world of fiction, pinning undue hope on rescue by Roberts seems awfully tenuous. We’ve come across another idea, proposed by former Federal Judge Shira Scheindlin, on the use of civil contempt, which would be within the authority of any judge faced with refusal to comply with court orders, perjury, or other types of defiance of the authority of the court. This would have the advantage of having the judiciary itself thrown its weight against Trump Administration officials giving the rule of law the middle finger.
We have discussed Judge Scheindlin’s idea with a few lawyers and legally-adjacent experts. None of them have found any major flaws. So we are writing about it again and in a bit more detail in the hope that this idea will get traction. One thing we have inferred so far is that criminal contempt has been the subject of far more court cases and hence also legal analysis than civil contempt. So any readers with expertise in civil contempt are very much encouraged to weigh in.
One reason for courts to stand up more forcefully against the Trump onslaught is that it is a politically very bad look for the Administration to fight the judiciary. We ran this tweet before but it bears repeating:
“To cross that rubicon [of defying court rulings] is a big ‘no, no'” for Americans. This court issue is a big loser for Trump.
The belief that Trump must follow court orders is more popular than Mother Teresa: 84% of all adults, 92% of Dems, 82% of Indies & 79% of the GOP. pic.twitter.com/viRxH66YUO
— (((Harry Enten))) (@ForecasterEnten) March 19, 2025
But to return to pinning too many hopes on the Supremes, and particularly Chief Justice Roberts, the Trump Administration is allegedly itching to get before the top court. It believes that its many fights, ranging from DOGE to deportation to DEI, can be boiled down to its theory of a unitary Executive.1 If the Court backs that, it’s game, set, match.
From a Politico interview with former Federal Judge Shira Scheindlin:
Assuming that the judge — Judge Boasberg or any other judge for that matter — eventually concludes that the government deliberately violated a court order, what are the judge’s options?
I can tell you that every former judge I know has been asked this question by somebody in the media, including me. I think the only real option is civil contempt….
You could also sanction the person, and that’s always interesting, because you could have fines that double every day, so it can get serious fast. I don’t know how good at math you are, but a $1,000 fine doubling every day can quickly add up to real money — not for the United States government, but for an individual. If somebody was individually sanctioned, that adds up…
As indicated when we wrote about this idea earlier, $1,000 doubled daily becomes over $1 trillion by day 31. While civil rights laws limit daily fines for criminal contempt to $1,000 per day, there is no cap for civil contempt. A very quick pass at the Just Security Litigation Tracker shows that individual defendants in cases against the Trump Administration include Trump, Elon Musk, Scott Bessant, Pete Folores, Charles Ezell, Marco Rubio, Michelle King, James Wu, and Jennifer B. Higgins. One could argue given the presence of billionaires on this list that ginormous fines are necessary to get their attention.
Mind you, many of the cases agains the Trump Administration’s action do not include individuals among the defendants. And since many are still in progress, it’s not clear how many will go into contempt terrain. However, defying a court’s order is contempt. And the Administration too often has been or has signaled it intends to do just that if it does not like a ruling.
Keep in mind that there are two types of contempt: direct contempt and indirect contempt. As Justia explains it:
Direct contempt results when the contumacious act is committed “in the presence of the Court or so near thereto as to obstruct the administration of justice,”195 while indirect contempt is behavior that the Court did not itself witness.
Far and away the most common type of direct contempt is when a party to a legal proceeding becomes disruptive, such as screaming or physically threatening people in the courtroom. Lying on the stand and missing a scheduled hearing without a valid excuse are also direct contempt. By contrast, failing to honor a subpoena, a false deposition, withholding evidence, and bribing or threatening jurors are indirect contempt.
Anyone who has worked with lawyers advancing new legal theories or uncommon applications of existing theories knows that it can take several attempts before they are debugged enough to fly well. Again, I am not sure whether an aggressive application of civil contempt in the face of unprecedented, Constitution-challenging defiance of court orders would fall in that category, but the Administration would be sure to depict it as such if the judges developed the intestinal fortitude to go this route.
If you read the underlying Politico interview, Judge Scheindlin didn’t consider the idea of criminal contempt as an option because it would take an attorney acting on behalf of the government to pursue that action, and the Department of Justice would not go there. However, she curiously did not consider the idea of designating a special counsel to pursue cases of indirect contempt….although even if the court prevailed, there is still the pesky problem that the Administration might try to bar Federal Marshalls from hauling the miscreants away if jail time were ordered.
Consider another angle suggested by a seasoned litigator:
A judge could really shake things up by jailing the lawyers for acts constituting direct contempts before the court. Back in the olden days when attorneys were counselors at law and not precarious saps telling the client whatever he wants to hear, lawyers feared being held in contempt more than being fired by the client.
As Elon reminds us about the Eichmans and Heydrichs who actually carried out the Final Solution, Trump and DOGE need foot soldiers. If they start getting thrown into jail, the dogs just might stop eating the dog food.
I think that Chief Justice Roberts would back the play of judges maybe growing spines and using their authority as a co-equal branch of government.
Please circulate this post widely. Even if this idea is still too much of an alpha version to be ready for release, there is likely enough of a there there to serve as a basis for action once refined.
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1 By Peter M. Shane at Verfassungsblog:
Through the unlawful firing of National Labor Relations Board member Gwynne Wilcox and a February 18 executive order, entitled “Ensuring Accountability for All Agencies,” President Donald J. Trump is trying to eliminate the independence of independent regulatory agencies. These are the multi-member agencies, such as the National Labor Relations Board, the Federal Trade Commission (FTC), and the Federal Communications Commission, whose members are protected by statute against being fired without good cause. The relevant statutes typically provide also that members will serve specific terms and that neither major party can hold more than a bare majority of seats.
The modern independent agency design, which the U.S. Congress first adopted for the Interstate Commerce Commission in 1887, is intended to foster deliberation, provide a monitoring system for each party through the capacity for dissent, reduce the prospects for agency “capture” by special interests, and promote impartiality in the administration of statutes.
In contrast, President Trump’s campaign against agency independence is part of his undisguised effort to effectuate a radical dismantling of our checks-and-balances system without actually amending the U.S. Constitution. It goes hand in hand with his efforts to reshape the civil service, praetorian-ize the military, and staff the Administration from top to bottom based on personal fealty, rather than qualifications and proven character.
If President Trump succeeds in neutering the capacity for independent judgment by either individual professionals or agency heads, he will have been enabled by a theory of the constitutional presidency that the Roberts Court has embraced but which ought to be embarrassing in its speciousness. This constitutional reading, now widely known as the “unitary executive theory,” has all but undercut the U.S. Supreme Court’s unanimous 1935 opinion in a case called Humphrey’s Executor v. United States. In that case, the Court upheld the constitutionality of the FTC and held invalid President Franklin D. Roosevelt’s dismissal of an FTC commissioner, William Humphrey, without good cause and in violation of the FTC Act. The Trump Administration has explicitly called for overruling Humphrey’s Executor.
The theory behind Humphrey’s Executor is straightforward. It starts with the recognition that the executive branch of government draws on two streams of legal authority. Some of what it does involves carrying out powers vested directly in the President by the Constitution. Treaty-making and fulfilling the President’s commander-in-chief role are prominent examples. But most of what the executive establishment does—nearly all of what it does in domestic affairs—draws on authority that Congress has given to the executive branch by creating administrative agencies and assigning them missions, such as protecting the environment or enforcing civil rights. The core of independent agencies’ work in this respect involves both rulemaking, which the Humphrey’s Executor Court called “quasi-legislative,” and administrative adjudication, which it called “quasi-judicial.”
What the Court held in Humphrey’s Executor is that if an agency is of the latter kind—that is, the agency’s job description involves a mixture of quasi-legislative and quasi-judicial functions that are not within the President’s explicit Article II powers—then it is up to Congress to determine whether this kind of agency’s heads serve at the President’s pleasure. If such an agency’s role is essentially “to carry into effect legislative policies embodied in statute,” then Congress may protect its members against discharge except for good cause.
Against this entirely commonsense understanding, the unitary executive theory insists on a vision of the Constitution that muddles the text, is weakly grounded in history, and ignores how executive power can easily metastasize into autocracy—a possibility I argued years ago as a hypothetical, but which is now being played out in real time.
The unitary executive theory rests on two foundational premises. The first is that the President, constitutionally speaking, is a one-person executive branch. The President, in the Court’s words, is “the only person who alone composes a branch of government.” The second is that, in vesting “the executive power” in “a president,” the Constitution gave the President the entirety of the government’s executive power— not “some of the executive power, but all of the executive power,” in the words of the late Justice Antonin Scalia, who even italicized the words “some” and “all.”
Beyond these two premises, advocates of the unitary executive theory may differ as to the scope of the precise authorities that Article II confers. But all advocates of the theory share a view that the Supreme Court embraced in a 5-4 decision rendered in 2020, Seila Law v. Consumer Financial Protection Bureau. The idea advanced there was that all executive branch personnel are “subject to the ongoing supervision and control of the elected President.” It follows, according to this theory, that the President must be able, directly or indirectly, to fire anyone in the executive branch. Seila Law extended the President’s removal authority to the principal officer in charge of any single-headed executive agency. The Court held out the possibility, however, that multi-member bodies might remain as an exception to this rule. President Trump wants to overturn the exception, so that he can fire independent board or commission members even without “good cause.”
Given the practical and political implications of the unitary executive theory, it is astonishing to see how little it lines up with the Constitution.
I am very pessimistic that the courts will stand up to Trump, so far only Putin has.
Since I read this I hav come across another article about how he is attacking the system…
https://www.nbcnews.com/politics/justice-department/trump-targets-lawyers-frivolous-lawsuits-administration-rcna197698
He is running an effective extortion ring. Maybe Roberts will do something at the margin, and yes civil contempt looks to be an option, but who and how enforces it. And, if a court goes there won’t Trump use it as more ammunition?
When your strategy relies in part on Supreme Court Justice John Roberts…
you don’t have a strategy.
There, finished it for you!
Roberts will try to dodge this. He’ll weave, spin, and rope-a-dope like Muhammad Ali in the “Rumble in the Jungle.”
Mikerw0: thank you for that article from NBC. In like kind, the NYT featured a story about the Big Law Firm of Paul Weiss & associates who caved in to Trump’s dictates that law firms/attorneys not be allowed to oversee, or observe what Doge & Co. were up to in big Federal Institutions.
It seems to us, that Trump and his oligarchs are in a hurry to smash most Federal Institutions to simply grab & go with the profits they make from cancelling thousands of the Federal worker’s salaries.
What is the urgency behind all this? We listened to a recent interview of Ray Dalio, a super billionaire who stated that the US Debt of several Trillion $$s needs to be trimmed back to 2-3% of GDP. Right now it’s 7.0% of GDP. His solution: make quick, clean cuts to Federal Spending: aka, hundreds of thousands of FED Salaries.
If this plan is followed through, the only people left standing will be our Oligarchs.
Can a judge put a lawyer in jail for (say) 30 days for contempt of court?
Because, following certain US legal channels on YT, it seems weird that beyond the blatantly partisan unqualified judges appointed by Trump, that other ones who might not be left leaning, still won’t follow through on their exasperation at the “ignoring the constitution stuff etc”.
Are they gambling on being able to have somewhere nice in Mar O Largo until they die & before the proverbial s hits the fan? This Brit/Aus doesn’t understand.
Isn’t the problem here that Trump himself can claim executive privilege and thus immunity from any civil contempt orders?
In the deportations flight case, the actual lawyers for the government could be hit with civil contempt, but wouldn’t Trump just go to Lawyers-R-Us to find another one (and probably a very attractive, young female?)
I agree that going after Musk, Bessant, or Rubio has promise, but at present none of them are parties to the deportations case. I suppose Noem could be haled into Federal Court for an explanation?
DOGE is at the heart of many cases working their way through courts. Musk is essentially the head of DOGE. It’s an easy connection.
No, immunity applies only in criminal cases. That is what his pardon power is about.
Ok, thanks for that clarification.
Who actually collects the fines though? If it’s anyone in the Executive branch then presumably Elon can have one of the DOGE bros just zero it out in the ledger.
No, DOGE does not control the courts. They are independent of the Administration.
I didn’t bother going further but courts have the power to compel disclosure of where the party has accounts. Banks all day respect court orders to impound assets if you can find where they sit. This is absolutely essential to commerce; parties to contracts have to be able to collect from deadbeats, in one of many examples.
In an extreme scenario (Trump gets Treasury to threaten banks), I am pretty confident the New York State Superintendent of Financial Services could threaten to yank the New York branch and other NY licenses of banks that knuckled under. I suspect that would amount to financial mutual assured destruction.
I wound not get my hopes up. Durring the Cobell v. Salazar case, the Bureau of Indian Affairs, Interior Secretay Bruce Babit and Treasury Secretary Robert Rubin among others were held in contemp tfor withholding records and then destroying records. While they werre held in contempt, no one was jailed, and I don’t recall any of the individuals being fined. That is, it was a big nothing and no one was held accountable. The federal courts do not have a good record of holding government attorneys to account.
Musk is the obvious target for such civil actions as he is behind DOGE.
While taking him down won’t fix everything, it will give other oligarchs pause.
“The modern independent agency design, which the U.S. Congress first adopted for the Interstate Commerce Commission in 1887, is intended to foster deliberation, provide a monitoring system for each party through the capacity for dissent, reduce the prospects for agency “capture” by special interests, and promote impartiality in the administration of statutes.”
Tell that to the Michael Powell FCC re “impartial.” A majority of one on these commissions mean they still serve at the pleasure of the president, assuming he can get the members of his party to all vote the same way.
And this Turley may offer the legal advice that the above is seeking.
https://jonathanturley.org/2025/03/02/spoiling-for-a-fight-why-the-administrations-loss-last-night-may-be-not-just-expected-but-welcomed/
He’s saying that the Trump people are indeed seeking a legal fight over Humphrey’s Executor because
“What may be overlooked in the filings of the Administration before the Supreme Court in the Dellinger case was this line in a footnote: “Humphrey’s Executor appears to have misapprehended the powers of “the New Deal-era [Federal Trade Commission]” and misclassified those powers as primarily legislative and judicial.” It went on to suggest that the case is not only wrongly decided but that the Justice Department “intends to urge this Court to overrule that decision.”
Described by the Court as “the outer-most constitutional limits of permissible congressional restrictions on the President’s removal power,” the Trump Administration appears set to try to redraw that constitutional map.”
All of which means taking the huge contempt step when the issues are Constitutionally contestable risks yet another lawfare backlash in favor of Trump, not against. It seems presidents have always been seeking a more unitary executive including Biden who made several Executive Orders such as the one regarding student loans that were struck down as exceeding his powers.
On the other hand Trump’s new assertion of censorship power seems to indeed be Constitutionally indefensible (even if “free speech absolutist” Turley, coward on the ME, declines to talk about this). Contempt away.
Nixon opened the can of worms with claiming of executive privilege for Watergate and Vietnam – the dude thought he didn’t need congressional approval to bomb Cambodia which wasn’t even in the war. Clinton then did the same with Kosovo. Bush Sr did the same with war on drugs. Bush Jr. continued the tradition with the so-called war on terror, extraordinary rendition, warrantless wiretapping and signing statements. Obama continued it with the above, plus extrajudicial assassinations by drone or hellfire.
Trump is just carrying forward a historical precedent and American tradition. IANAL, but isn’t any legal case against Trump carrying on in more of the same vein as all of these, going to cite these precedents as established law? The time to fight them was before they became established as precedent, now it’s reality is 9/10ths of the law.
Let’s review:
Accountability by Congress: None.
Separation of Powers: None, Trump is God.
Legislative Powers: Trump is the Law.
Checks and Balances: None, Trump is the Law Unto Himself.
Inherited Power: Work In Progress.
He’s pretty much almost a King or an Emperor. Well done America, overturning your own founding principles but, in fairness, if Kamala or Biden had won it would be the exact same. All of these precedents were leading America to the same consequential result.
Nixon did indeed need Congressional approval to bomb Cambodia and Laos. Initially, Congress was not even informed. https://en.wikipedia.org/wiki/Operation_Menu
Since then, Congress has acquiesced and handed over war powers to the emperor, er POTUS.
To hear a great takedown of the Supreme Court by a highly regarded, conservative former federal appeals court judge, Michael Luttig, here’s his Sept. 17th, 2024 interview, following two introductions, hotly condemning the Supreme Court’s presidential immunity decision, Trump vs. the US. With introductions and questions, about an hour and forty-five minutes long.
It’s an alarming bellwether.
https://www.youtube.com/watch?v=gu83bkcrTqY
Can someone be pardoned from Civil Contempt?
No, only criminal acts can be pardoned.
Separation of powers, checks and balances and all that eh. What happened to Congress? Once again, they appear to be handing the exec more of their power vested by the constitution.
The institutional corruption that arguably has increased in recent decades is present in all three branches of govt. I’m not sure whether it’s cynicism, pessimism or just being pragmatic to say that one should not hold too much faith in Roberts as a person, or SCOTUS as an institution. But that’s a generalization.
Another problem is that the abusive Dad, the DT, has millions of faithful followers in whose eyes he can do no wrong. Even if criminal contempt, or other legal sanctions were used, his followers could be called into action, or even violence.
I know a couple of die-hard DT fans who are heavily armed (like millions of others in the US), and they do not listen to reason and they deny basic facts -they believe whatever the Orange Saviour tells them. The “Trump Derangement Syndrome” goes both ways. It is sad, because they are otherwise polite, and kind people on a personal level.
This may be a bit paranoid, but the US has one of the most heavily armed civilian populations in the world and the potential for political violence is always under the surface.
Not to any way dismiss your concern, which I believe to be based on real possibilities, but should push come to shove, I’m more concerned about the even more well armed and well organized enforcers of state power such as the police and the military. In the event of armed pro-Trump civilian uprisings, just whose side would they be on?
Yes indeed, great point. Significant numbers of the enforcers of state power could side with the the pro DT people, based purely on anecdote. But we don’t want to find out the hard way, it could get very ugly.
The local police in the United States tend to be cowardly especially if they are corrupt and used to control and fleece the locals as prison guards or armed gangs do by the local government/elites. This does not mean that they should be discounted, but I think that an armed, motivated resistance to the police would be surprisingly effective.
Strangely, areas with honest police might be safer both for the local population and for the police as honest police are more competent and less disliked by the public. If I was a worrisome individual, I would find where the honest police are and look to move there. Good government and good police tend to go together and there are still pockets of both in the United States.
Yes I am surprised by that statistic that 79% of the GOP believe that Trump should follow court orders. I realize social media algorithms aren’t necessarily a reflection of reality but I routinely see comment threads with full throated support for Trump ignoring court orders.
I see that too. One thing is that supporters may prefer him to follow court orders, but at the end of the day will still support him. Some may be reluctant to say that they are against the rule of law on a survey or poll.
As material conditions and quality of life worsen for the vast majority in the US, under the policies of DT2, we could also see a real decline in support.
All true, but there are plenty of armed people on the other side, so to speak. However, ask yourself: how many are willing to die for the king? I suspect things would have to have gone pretty far south for things to reach critical mass. It’s really hard to say what may happen.
The situation gets more volatile, yes, we’ll wait and see, it’s still early days for the DT2 regime. True, where I live, there are plenty of “hippies with guns” around.
Maybe Dems can pin hopes on their favorite corporate stooge justice for chevron who held Steven Donziger on house arrest for years and gave him max 6 months sentence while getting him disbarred for contempt for not giving up protected communications with his clients. Also, when Scotus (in between Thomas and all vacays with billionaires) denied hearing his appeal only Gorsuch made a squeak about the case. So contempt sticks the landing when is the worst example making precedent. Also, loads of whinging about poor Venezuela losing Chevron business while ignoring the Ecuador case Donziger won for their environmental crimes, Venezuela better off without that blood money.
The federal judiciary are exactly as corrupt as Trump and the secretive executive agencies FBI, HSA, DOJ etc.
DC judge Boasberg recently claimed (Barth v. U.S.) that agencies have Discretion and Immunity for collusion in political racketeering (!) to steal conservation funds, an outright attack on the Constitution serving only political gangsters; the same agencies promptly ignored his order to stop deporting immigrants before judicial evaluation of cases. Trump threatened to impeach the judge for his order and the SC’s Roberts merely scolded Trump for ignoring the Constitutional principles of Separation of Powers and Checks and Balances.
But in fact there are no branches of our government: we are ruled by political parties that span the branches and have discarded the Constitution and all principles of democracy, which they invoke only to conceal political gang control of the US government.
Yes, but ruled by the oligarchy, the so-called political parties are funded and controlled by them. Now the oligarchy don’t even try to hide behind a thin curtain, they are right in our faces.
Surprised no one has mentioned a court’s broader disciplinary powers to punish misbehaving attorneys. You don’t have to throw them in jail for contempt. Suspension or disbarment from practice before a particular court is a far more common sanction, easier to justify, and just as effective.
In prior life I was a federal magistrate judge. In order to practice in federal court, an attorney must be admitted to the bar of that particular court. Membership in good standing with the state bar is a necessary, but not sufficient condition to admission to a federal court bar. Each federal district and appellate court maintains its own roster of attorneys admitted to practice before them. Each court has a set of local rules governing attorney conduct and discipline. Most federal courts have a reciprocal discipline rule, meaning an attorney disbarred from one federal court will presumptively be disbarred from practice in any other federal court. See e.g. Appendix A to the SDTX Local Rules:
https://www.txs.uscourts.gov/sites/txs/files/LR_August_2023.pdf
You can see why this might prove a powerful disincentive for a federal litigator to piss off even one federal judge.
When will they? They won’t. They don’t have their own independent heavily armed Enforcement Army.
They know we are in the Anything Goes post-legality era but they don’t want to admit it in public.
They don’t want to be rounded up and sent to the waiting StalaGulags in El Salvador.
How many of these judges would even think of wearing a suicide belt in order to blow up when the Magastapo enters their courtroom or their home and is ready to take them away?
( I wouldn’t think of wearing a suicide belt, so why would they?)
Not sure if a traffic court judge taking his driver’s license away will do it. He’s not the one with the classic Vette in the garage.
The mere fact of the presence of the tools and materials required for a house does not make a house appear. People with the motivation and a common vision do that.
More than a century of increasingly coordinated efforts by elites has been successful in robbing Americans of any common vision for moving forward. We no longer seem capable of building social institutions.
Americans are also dominated by their fear of losing what little they have. Losing what you have in a wealthy society as far more stigmatizing than in an overall poor one. The cliff looks much higher. Even for judges
I expect the Trump Administration to push this all the way and ignore any orders from the courts they disagree with.
It’s already to the point that Judges are being threatened with physical harm and the people making those threats are serious.
As far as the Supremes, Harlan Crow bought Thomas with a used book and a Winnebago.
I foresee despotism followed by chaos and warlordism, there will be genuine crises and the ability of the Trump and post Trump administrations to deal with them competently is negligible at best.