Should A Federal District Court Hold Contempt Proceedings While An Emergency Appeal Is Ongoing?

Maybe judges should hold off on ordering the executive branch to show cause until the Supreme Court finishes its review.

The Supreme Court's decision in Trump v. J.G.G. divested Judge Boasberg of the jurisdiction to further adjudicate the matter. It also cast in serious doubt whether he could continue his contempt proceedings against the executive branch. Earlier this week, I wrote "it is not clear if the District Court has power to hold the executive branch in contempt where it lacks jurisdiction over the case." I still don't know the answer to that question, but as a practical matter, Judge Boasberg will likely stand down.

My colleague Seth Barrett Tillman ruminated on holding litigants in contempt in the context of emergency orders.

If the DOJ refused to abide by a federal trial court judge's order, and that order was granted ex parte, but subsequently it was set aside, then what should the judge do? My view is that holding the prevailing party in contempt should not be predicated on mere disobedience standing alone. Contempt's normative justification is tied to fair play and due process, but where the process is ex parte, contempt is too harsh. What is driving the public mind (or part thereof) to press for contempt in the recent immigration cases is that a large part of the public believes the Trump-47 policies are lawless or heartless or both. But if the policies are lawless, that's a merits determination. If the order was set aside on appeal, then the merits standing alone should not be sufficient cause to elicit a contempt order. As for heartless, I am sure that the majority of federal judges think that too. But that is a policy and values judgement—we hold elections to make those decisions—we do not issue contempt citations for being on the wrong side of a naked moral judgment untethered to established law.

Where an ex parte TRO is set aside, I think a federal trial court judge has a narrow window of opportunity to hold a disobedient defendant in contempt. The judge must establish that the defendant's conduct during and in the course of the litigation was illegal or inequitable. Here I am speaking not to the litigant's underlying or out-of-court conduct, but his conduct in relation to his representation before the trial court. The conduct would have to be something akin to unclean hands (albeit, that doctrine usually applies to plaintiffs' seeking equitable relief, as opposed to defendants' opposing an application for equitable relief).

To put it another way, when a trial court's ex parte TRO is on its way up through the court system on appeal, a judge should refrain from discussing contempt, in full public view, for noncompliance during that time. After the appellate process is over, then that's the time to consider a contempt citation, and it should be done in full public view. Otherwise, the judge will look vicious, officious, and biased. And that cannot be right.

As usual, I find Seth's reasoning persuasive. Let me extend Seth's point a bit further.

Imagine two counterfactuals. What if Judge Boasberg had held the executive branch in contempt before the Supreme Court ruled that he lacked jurisdiction? Maybe he sought to fine, or even incarcerate a DOJ lawyer, or someone higher up in the administration. Alternatively, what if the contempt proceedings elicited information that could have caused the Supreme Court to rule differently. For example, the judge demanded that the Secretary of Homeland Security testify in open court about classified matters. These hypotheticals raise what I think has been an unstudied question: should a federal district court even hold contempt proceedings while an emergency appeal is ongoing? In other words, if a case is rocketing up the shadow docket, should judges hold off on ordering the executive branch to show cause until the Supreme Court finishes its review?

I think the answers to these questions have to be no and yes. The entire case went from the trial court to the Supreme Court in about a month. There really was no need to hold any contempt proceedings while the appeal was ongoing--especially in light of the fact that the government contested the court's jurisdiction. But more fundamentally, the question of whether the government engaged in contempt very much turns on whether the court's order was lawful.

It is true that in the normal course, the way to challenge a trial court's ruling is through the appellate process. But this was not a normal case. Here the court instructed a coordinate branch of government how to exercise its constitutional authority when there was no practical time for an appeal. Can it be that a single district court judge can exercise absolute authority over the executive branch, even for a limited time? Should the government be held in contempt for not immediately turning planes around over international waters? At best for the court, this is in something of a zone of twilight where the allocation of powers between the judiciary and executive branch is unclear. I would remind everyone that the Truman Administration did not immediately obey an unstayed district court order in the Steel Seizure case. At worst, Judge Boasberg's order, issued orally without the benefit of full party presentation, should not form the basis for a contempt citation.

The first phase of the Trump litigation was unappealable TROs. The second phase entailed preliminary injunctions that were appealed to the Supreme Court, but were vacated through some compromises. The third phase, I predict, will be hostile contempt proceedings where district court judges try to reassert their authority over the executive branch, even in the face of SCOTUS reversals. We may not have a special counsel like Robert Mueller to launch inquisitions against the Trump Administration, but district court judges in D.C. and Maryland will gladly assume that role. Soon enough, we will be talking about "obstruction of justice" all over again. We might spend the next four years inquiring about what Trump knew about the airplanes. This very well might form the basis of future articles of impeachment. It is 2017 all over again.

I'll close with an unpopular opinion. When a judge feels the need to hold the executive branch in contempt, he should recuse and let another fresh judge decide if the contempt proceedings are justified. I think it is tough for a judge to simultaneously decide which party has the better reading of the law, while lurking in the background is the question of whether the government flouted the court's order about that disputed question of law. I made this point concerning an unusual case from South Dakota where a District Court judge sought to hold the U.S. Marshal in his contempt. The District Court Judge actually appointed a special prosecutor to prosecute the Marshal, akin to the Donziger case. But to his credit, the District Court judge recused and let another judge handle the matter. At the time, I opined:

Recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

Unsurprisingly, cooler heads prevailed, and the new judge dismissed the contempt proceedings against the Marshal.

If any further contempt proceedings are to be had, I think recusal would be appropriate here for Judges Boasberg, Xinis, and any other judge seeking to hold the administration in contempt. No matter how hard a judge tries, these sorts of cases become personal.

The case would not be J.G.G. v. Trump. It would be J.E.B. v. Trump. And Trump has some experience with moderates named Jeb!

There is no harm in letting a fresh set of eyes review the matter.