Topline
The Trump administration sent Venezuelan migrants to El Salvador Saturday despite a judge’s order forbidding it from doing so, raising questions about the potential consequences that could be imposed if Trump officials ignore court rulings—and whether President Donald Trump’s pardon power could help negate any potential punishments.
Secretary of State Marco Rubio during a meeting of governors at the White House on February 21.Less
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Key Facts
Judge James Boasberg suggested Monday the Trump administration violated his order when it sent alleged members of the Tren de Aragua gang to El Salvador under the Alien Enemies Act, with flights landing after Boasberg blocked the deportation of any immigrants under that law—and ordered during a hearing that any flights already in the air should be turned around.
The Trump administration has denied wrongdoing, claiming Boasberg lost jurisdiction over the flights once they left U.S. airspace, but the judge has suggested the government may have acted in defiance of his order, characterizing its stance Monday as, “We don’t care; we’ll do what we want.”
Trump officials have more broadly suggested the executive branch cannot be stopped by the judiciary from carrying out President Donald Trump’s immigration orders, with White House Press Secretary Karoline Leavitt saying Sunday, “A single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil.”
This has raised the possibility that Boasberg or other judges in the future could move to hold specific Trump officials in contempt of court for defying their rulings, though Trump himself remains immune from facing both criminal or civil liability for his acts in office—and no judges have yet explicitly threatened any punishments against the government or specific officials.
That means officials could face civil penalties like fines or imprisonment to force them to comply with rulings, or be held in criminal contempt, in which they would be subject to criminal charges as a result of their defiance of the court.
But Trump could help lessen the blow of any criminal punishments: Trump’s DOJ wouldn’t necessarily prevent officials from facing criminal penalties, as private lawyers could be appointed to prosecute any contempt allegations, but the president likely still would be able to pardon anyone convicted of contempt, legal experts told Forbes.
What To Watch For
Boasberg has not yet given any indication about whether he could hold any Trump officials in contempt if they violated his court order blocking deportations—or concretely ruled that they did defy his ruling—though a hearing in the case is scheduled for Friday afternoon.
What’s The Difference Between Civil And Criminal Penalties?
Judges hold parties in civil contempt in order to compel them to comply with a court’s action, imposing consequences designed to force them to follow the court. Any penalties levied are “coercive, not punitive,” Frank Bowman, a former federal prosecutor and professor at the University of Missouri Law School, told Forbes in an email, noting that could include consequences like levying escalating fines on a party or putting them in prison until they comply. Those punishments go away as soon as they follow the court, which Bowman notes means, “If a Trump aide does something contemptuous that can’t be undone, the civil remedy may be useless.” Criminal contempt is instead used to punish someone for acting in defiance of a court, rather than get them to comply. That’s a formal criminal charge that is punishable under federal law in most cases by up to $1,000 in fines or up to six months in prison.
Would Trump’s Doj Prosecute Officials For Contempt?
The Trump-controlled Justice Department is unlikely to prosecute any of the administration’s own officials for contempt, particularly for defying court orders in cases the agency itself is handling in court. But that doesn’t necessarily stop Trump aides from being prosecuted. Federal law states contempt charges should be prosecuted by the government, “unless the interest of justice requires the appointment of another attorney.” That means if the government refuses to prosecute someone—as the Trump administration likely would—the court would then appoint a different attorney to prosecute the contempt charges. Doing so would be “relatively novel at a trial court in a criminal case,” however, Mark Osler, a former federal prosecutor and professor at University of St. Thomas School of Law, told Forbes, noting the more common scenario is private attorneys taking over for the DOJ in civil cases they withdraw from in appeals courts.
Can Trump Pardon Officials Who Are Held In Contempt?
Trump cannot pardon anyone who’s held in civil contempt of court, which Bowman told Forbes makes that “the only contempt remedy that could be effective” for levying punishments on Trump officials. Rep. Jamie Raskin, D-Md., the ranking member on the House Judiciary Committee, suggested in a recent letter to Trump the president could have difficulty pardoning any aides for criminal contempt as well, claiming the president may be “unable to pardon a federal employee” for contempt “because such an offense may not qualify as an ‘offense against the United States.’” (The Constitution gives presidents the “Power to grant Reprieves and Pardons for Offences against the United States.”) Some legal scholars have also questioned the pardon power for criminal contempt more broadly, protesting Trump’s pardon of Arizona sheriff Joe Arpaio for contempt during his first presidency by claiming pardons for contempt unlawfully undermine the judicial branch. Judges need to be able to have the power to punish people for contempt in order for the court system to effectively function, the thinking goes, with scholars also arguing it violates the separation of powers between branches of government. That suggests any pardons Trump does make could be challenged in court, leaving it up to judges to decide whether the moves are allowed. Bowman disputed there would be any legal issues with Trump pardoning aides for contempt, however, telling Forbes about the legal arguments against contempt pardons, “I don’t think they fly.” “Presidents have issued many pardons for contempt since at least the 1800s, and the Supreme Court has specifically held that criminal contempt can be pardoned,” Bowman noted.
Why Can’t Trump Be Punished For Defying Court Orders?
While his aides could be punished for defying any court rulings, Trump himself is shielded from facing any criminal or civil penalties for acts he takes as part of his duties in office. The Justice Department has long had a policy not to prosecute sitting presidents on any kind of criminal charges, and the Supreme Court last year extended that immunity to say Trump and other presidents also cannot face criminal charges after they leave office for actions that were part of their official presidential duties. That means if Trump were to act against a court order by doing something that was within his official capacity as president, it would be up to Congress to impeach him and remove him from office, versus him possibly facing charges in court. Trump also can’t face any civil punishments for his official duties, as the Supreme Court similarly ruled in Nixon v. Fitzgerald that presidents can’t be held liable in civil cases for actions they undertook as part of their official duties.
Key Background
The possibility that Trump or his aides could defy court rulings has become a growing fear among critics of the president in the months since he took office, as judges have increasingly imposed rulings blocking his policies. Those rulings have led to outcry by Trump and his allies that judges are abusing their power and don’t have the authority to overrule the president’s actions, with Vice President JD Vance saying in February judges “aren’t allowed to control the executive’s legitimate power” and GOP lawmakers filing longshot articles of impeachment against judges who issue unfavorable rulings. Boasberg’s ruling has become a flashpoint in that debate, as reports suggest Trump officials intentionally ignored the judge’s ruling by not turning around the flights to El Salvador, believing Boasberg couldn’t control flights that were already in the air. The Trump administration, for its part, has denied any violations of court orders, insisting it complied with Boasberg’s order by not having any flights take off for El Salvador after he issued a written order blocking the deportations. Trump officials have also taken pains in other cases to note the government is complying with rulings that it doesn’t like. Trump told Fox News host Laura Ingraham Tuesday he “never did defy a court order” and suggested he didn’t intend to going forward, saying, “No, you can’t do that.”
Further Reading
ForbesDid Trump Administration Ignore A Court Order? Judge Demands Trump Officials ExplainBy Alison Durkee
ForbesTrump Files Emergency Request: Says Controversial El Salvador Deportation Flight Info Should Be ‘State Secret’By Alison Durkee
ForbesHere’s Why Impeaching Judges Is So Difficult—And Unlikely—As Trump, Musk Target Judge BoasbergBy Alison Durkee
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