The Special Counsel Is Dead. Long Live The Special Counsel.

Judge Boasberg will likely anoint a special prosecutor to investigate the Trump Administration, bring us back to Muellergate.

Last week, predicted that the next phase in Trump litigation will involve contempt proceedings:

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.

And so it has come to pass. Judge Boasberg found that the Trump Administration likely engaged in criminal contempt. There will be a hearing that will likely make the judge even more angry. And he will find that criminal contempt is appropriate.

Federal Rule of Criminal Procedure 42(c)(2) provides:

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

The United States Attorney for the District of Columbia will not prosecute the case, and may ultimately become a fact witness. So Judge Boabserg will anoint a new special prosecutor to investigate the Trump Administration. I hear Jack Smith has some free time on his hands?

We are back in the first Trump Administration with Robert Mueller. Anything that Trump or anyone else does will be considered "obstruction" which could trigger further indictments. The special prosecutor will try to interview the President himself. But unlike with Mueller, Trump would have no power to effect the removal of the special prosecutor. This will become the basis of some future impeachment hearing.

I agree with Justice Gorsuch in the Donziger case. The court appointed special prosecutor violates the separation of powers. Get ready for more "officer stuff"!

Comments

[Bored Lawyer]

Criminal contempt is subject to the pardon power. I predict pardons, perhaps multiple ones.

[ScottK]

Such pardons would not affect state disciplinary proceedings against lawyers who violate their duty to the tribunal.

[rloquitur]

IIANM, there are some federal immunities for state bar actions.

This judge needs to go to CECOT.

[ScottK]

IAAL, and URM on the scope of lawyer immunity.

[not guilty]

"IIANM, there are some federal immunities for state bar actions."

Per 28 U.S.C. § 530B:

(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.
(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.
(c) As used in this section, the term “attorney for the Government” includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under chapter 40.

[Noscitur a sociis]

There are a lot of things that such pardons woudl t affect. They would, however, clearly affect the ability of a special prosecutor to maintain criminal contempt proceedings.

[Bored Lawyer]

And who are those, exactly? I have not been following the minute details, but I am dubious that the lawyers, as opposed to members of the Administration, were under any order to do anything, nor in a position to do so. If the client says, "Sod off, judge," the lawyer is in no position to do anything but report that to the court.

I myself have sought contempt (i.e., civil contempt) against parties. Never against their lawyers.

[not guilty]

Judge Boasberg's order is here: https://static01.nyt.com/newsgraphics/documenttools/88a8e86fe0c23489/667d455e-full.pdf

He does not specify what individuals may be subject to criminal contempt proceedings; the order recites at page 44:

In the event that Defendants do not choose to purge their contempt, the Court will proceed to identify the individual(s) responsible for the contumacious conduct by determining whose "specific act or omission" caused the noncompliance. See Cobell v. Norton, 334 F.3d 1128, 1147 (D.C. Cir. 2003); United States v. Voss, 82 F.3d 1521, 1525-27 (10th Cir. 1996). At the suggestion of the Government in the last hearing, the Court will begin by requiring declarations. See Apr. 3 Hrg. Tr. at 24–25. Should those be unsatisfactory, the Court will proceed either to hearings with live witness testimony under oath or to depositions conducted by Plaintiffs. Id. at 29-30 (Plaintiffs suggesting declarations, depositions, hearings). The next step would be for the Court, pursuant to the Federal Rules of Criminal Procedure, to “request that the contempt be prosecuted by an attorney for the government.” Fed. R. Crim. P. 42(a)(2). If the Government "declines” or “the interest of justice requires, "the Court will "appoint another attorney to prosecute the contempt.” Id.

I wonder how efficacious that will be, in light of the constitutional privilege against self-incrimination.

[Riva]

I wonder how efficacious it will be given that the judge has disregarded the S.Ct.'s remand instructions, and, rather than showing due deference for the executive's authority over foreign affairs, decides to show utter contempt and punish coordinate branch officials for conduct with their constitutional sphere of authority but outside any rational conception of the judicial power. This is an outrage and must be addressed by a higher court. And I would hope this lunatic is also impeached forthwith.

[not guilty]

Have you read today's order or not, Riva?

The Supreme Court vacated two orders issued by Judge Boasberg because the detainees' remedy is a writ of habeas corpus, which must be brought in the district of confinement. Despite finding venue inappropriate for a "core" habeas corpus action, it did not dismiss the underlying lawsuit, and nothing that Judge Boasberg has done since the SCOTUS ruling relates to the merits of the underlying civil action.

Criminal contempt proceedings arising out of a civil action are separate from the underlying civil suit. The inquiry here is whether the earlier orders of the Court were contemned by the Government. That looks backward to the events of March 15, 2025.

The Supreme Court's later determination that the TRO suffered from a legal defect does not excuse the Government's violation. Instead, it is a foundational legal precept that every judicial order “must be obeyed" no matter how “erroneous” it “may be” until a court reverses it. Walker v. City of Birmingham, 388 U.S. 307, 314 (1967). If a party chooses to disobey the order rather than wait for it to be reversed through the judicial process such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order. See id. at 314, 320.

[Riva]

Have you read the constitution or not, NG? This is not a civilian litigant. This creep judge is showing gross disrespect to the constitutional prerogatives of the executive branch. He had no jurisdiction and his latest escapades offend separation of powers principles. The sooner this loon is impeached, the better.

[Kleppe]

"The Supreme Court's later determination that the TRO suffered from a legal defect does not excuse the Government's violation. Instead, it is a foundational legal precept that every judicial order “must be obeyed" no matter how “erroneous” it “may be”"

Military members are taught they are only to obey lawful orders. Lawyers are taught they shall obey unlawful orders. What a dumbass profession.

[David Nieporent]

You are confusing two different concepts. Members of the military can't follow illegal orders. If a superior officer says, "Go execute that unarmed civilian," a soldier can't do that because it's a crime. That's not what we're discussing here. We're discussing an act that would be entirely legal — e.g., "don't deport those people" — but that the court didn't have jurisdiction to order.

[Riva]

The DOJ in future motions will likely focus on the lack of any written order and factual circumstances making compliance with Boasberg’s insane power grab impossible. But the matter implicates other concerns. Boasberg had no “authority to micromanage national security decisions made by the executive [branch].” The out of control lunatic now wants to hold coordinate branch officials in contempt based on an interpretation of a sloppy oral order did just that? Not a legal or factual circumstance covered by any precedent cited by those drooling over an independent contempt proceeding. The same clowns who failed to perceive the separation of powers concerns in any case involving Trump administration officials.

[windycityattorney]

This is not an accurate assessment. The oral order had specific instructions to the DOJ counsel. The written order didn't contain each and every oral command; but reduced to writing what the Court ordered. The main command that was given orally was an admonishment to make sure their clients were made aware of the Court's ruling immediately.

As this filing recites; after the written order was entered, the planes ended up in Honduras and from there they went to El Salvador. So there was time to comply with the written order which included that the class members were not to be transferred to El Salvadoran custody (but rather returned to the US). Which they were handed over sometime on Sunday (with both the oral and written orders having been entered on Sat). Focusing on the oral order is a red herring because while they did violate the spirit of that oral order they also violated the written order that came a half hour later.

So it would be helpful if you didn't focus on irrelevant shit to distract from the issues being discussed. It is quite obvious that you do this - that it is intentional - and the only conceivable purpose is to derail the comment thread.

[Riva]

A red herring? No. One could only say it is not the only flaw in this disgracefully judicial fiasco. Just one aspect. From Margot Cleveland: On merits of "willful" violation: The order barred "removal" only. Trump Administration read that literally to bar "removal" from U.S. only and they were already "removed" from U.S. when written order dropped AND case law is clear that written order controls.

I’d be helpful if you were legally accurate instead of commenting on absurd shit like “the spirit of the oral order.”

[David Nieporent]

Bot has tantrum but still can't keep two different cases straight.

[Riva]

Let's see, how to dumb this down so even a TDS deranged troll would understand? Not sure that's possible. But the troll might want to consider the constitutional implications if executive officials, upon pain of criminal contempt, were required to allow any and every nutcase federal judge (and there are quite a few) to micromanage national security decisions made by the executive branch. Not really an optimal policy, is it repulsive little troll?

[jb]

I like the dodge to avoid admitting that it was keeps mixing up two different cases.

[Riva]

Go away unless you actually have an intelligent response.

[David Nieporent]

More optimal than letting the executive do illegal things and then lying about it being an issue of "national security" to escape liability.

(Also: nonresponsive to the point, that you keep confusing two different cases with different judges and different orders and different rulings by SCOTUS.)

[David Nieporent]

I think "accountability" might have been a better word choice than "liability," though the underlying point is the same.

[Riva]

I’m referring to Boasberg you repulsive POS troll. And constitiutional issues you, as a POS troll, are incapable of responding to. Margot Clevand said it even better:

And as I've said for weeks: Notwithstanding the flood of unconstitutional orders entered by Article III overstepping Article II, Trump Administration has obeyed those injunctions--to the letter. He should be applauded for doing so.
10/ Instead, Judge Boasberg seeks to hold Article II in contempt for obeying the letter of his injunction--an injunction later vacated. That deserves condemnation.
11/11 Said otherwise: Scores of Article III judges have entered unconstitutional orders restraining Article II. Article II has been forced to sit back and take it and has no "counter-punch" available. And now Article III wants to blindside the President for not taking a dive.

Surprise the hell out of me and try to make a substantive response.

[David Nieporent]

I’m referring to Boasberg

No, you're not. You said "the judge has disregarded the S.Ct.'s remand instructions, and, rather than showing due deference for the executive's authority over foreign affairs," But that describes what SCOTUS said to Xinis in the Garcia case, not what SCOTUS said to Boasberg in the JGG case.

[David Nieporent]

Trump Administration has obeyed those injunctions--to the letter.

False. It did not obey Boasberg's order. It did not obey Xinis's initial order, or her subsequent orders. It did not obey McFadden's order in the AP case.

[Riva]

Can you possibly be more full of shit?

[David Nieporent]

I've never had to seek contempt against lawyers. Sanctions, yes. Contempt, no. But if your client tells you, "I am not going to obey the judge. Tell him I said 'sod off,'" would you

(a) Show up to court, shrug and tell the judge, "Sorry, my client said 'sod off,' what're you gonna do about it?"; or
(b) withdraw from representation?

I don't know any ethical lawyer who wouldn't do the latter.

[TaioF920]

I would withdraw, unless I was representing a client looking to kill third trimester babies or ejaculate into another man's anus without protection. In that case, the clients are heroes so withdrawing would be immoral.

[Vryedni]

Do I assume correctly that every time (or close to it) you've changed your ID, it's because you were banned under the previous one?

[TaioF920]

No idea what you're talking about.

[Vryedni]

Lol. I'm not trying to get you banned again. I'm just curious. Either way, I can't imagine why you care enough to lie. If they were bans, you obviously know how to get around them. But whatever.

[neurodoc]

Does the VC ban people? There are some posters who breach the most minimal standards of decency and keep returning.

[Vryedni]

Does the VC ban people?

That's what I'm trying to find out!

There are some posters who breach the most minimal standards of decency and keep returning.

This dude is one of the most egregious offenders. He's been posting the same racist, antisemitic, homophobic crap for years, but every so often his ID changes. I'm curious if that's because he's occasionally and very properly banned, or unrelated reasons.

[Vryedni]

Here's one of his recent enlightened offerings.

Here's another.

[Kazinski]

I just mute him, under whatever name, and move on.

Best commenting feature ever.

[Drewski]

Well, it will affect them in that the fact of conviction can't be counted against them, which is significant. In my state, conviction of a felony results in automatic suspension, and the attorney must petition to restore their license.

Anyway, what you say is otherwise true in New Jersey and (importantly) DC for sure. I didn't see it coming up elsewhere but I didn't try very hard. I doubt it comes up too often. I suspect most states would come out the same way - but a few might decide otherwise if the pardon is from Trump in particular, secure in the knowledge they can flip-flop later if necessary.

[EllaWilson]

I did not vote for "judge" boassburg!

[Darwinnie]

And I didn’t vote for Musk.

[Reallynotbob]

I didn't vote for Trump. It's almost like democracy sometimes means not getting one's way.

[ScottK]

You must not be a Senator then.

[Riva]

It will not get that far. This creep judge tries to interfere with the conduct of a national security mission overseas, issues a TRO outside of his jurisdiction and now seeks to hold members of a coordinate branch of government in contempt for pursuing matters within their authority but outside of this insane judge's judicial power. In fact, demento the judge was directed to issue a clarification showing due respect to the authority of the executive's conduct of foreign affairs. This is not that thing. This is the opposite of showing deference. It is showing absolute contempt to a coordinate branch and the separation of powers. As I've noted before, this judge must be reprimanded and impeached, and I don't care in what order. He is unfit to be federal judge.

[David Nieporent]

Bot not programmed to know that there are two different cases. (Neither of which involved a "national security mission.")

[Riva]

Considering the troll doesn't understand separation of powers, has literally no clue what Art. II even is, and believes the Judicial branch is supreme over the other branches of government, I'm not surprised that your only response is to parrot some infantile insult. Lacking any wit, you really have no other response.

[Drewski]

As do I. But it would certainly be inappropriate for a judge to consider the likelihood of a pardon.

[Please, Daivd, Seek Help]

The Federal Rules of Criminal Procedure citation is 42(a)(2), not 42(c)(2) which doesn't exist.

To be clear, you think that a court appointing a prosecutor, something that's explicitly in the text of the Federal Rules of Criminal Procedure, which has been there for 80 years, is trivially and obviously unconstitutional and no one noticed before now?

That seems really remarkable to me.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

The Judiciary appointing a prosecutor to defend the Executive's powers against Judicial encroachment seems a little backasswards.

But that's just me.

[rloquitur]

Prosecution is a core function of the Executive. But the current on-point precedent is Morrison v. Olson. See id. (The Man, J., dissenting) for the contrary view.

[Noscitur a sociis]

Morrison is certainly relevant, but the actual on point precedent (which of course rejects Prof. Blackman’s interpretation) is Young v. U.S. ex rel. Vuitton et Fils, 481 U.S. 787 (1987).

[rloquitur]

I stand corrected.

[David Nieporent]

Sorry, I posted this below without having scrolled back up to see this.

[Bored Lawyer]

As I said below, Young is dictum, albeit strong dictum. Notably, Scalia took the same position as Blackman did here. What a majority of SCOTUS would hold today is anyone's guess.

[David Nieporent]

As I said below, it wasn't dictum. But also, cases are governed by what SCOTUS has actually ruled, not guesses about how a majority of today's SCOTUS would rule.

By the way (and here I'm not directly responding to your comment), if we're going to adopt non-controlling Scalia opinions, I'd like to put in a plug for his dissent in Zivotofsky v. Kerry, rejecting the idea of creating a general, broad category of "foreign affairs" and then handwaving the incantation "separation of powers" as giving exclusive authority to the president in that category. The president has few, if any, exclusive powers in "foreign affairs."

[Alpheus W Drinkwater]

Amen. In fact the Mortensen paper makes a very convincing case the President has no inherent powers in foreign affairs, other than the few things specified in article 2.

[David Nieporent]

Thx. Are you talking about his executive powers paper, or a different one?

[Mr. Bumble]

"To be clear, you think that a court appointing a prosecutor, something that's explicitly in the text of the Federal Rules of Criminal Procedure, which has been there for 80 years, is trivially and obviously unconstitutional and no one noticed before now?"
When has it been applied?

[Noscitur a sociis]

The Donziger case that Prof. Blackman mentioned is one example. The South Dakota U.S. Marshal case that he mentioned in the linked post is another.

[Bored Lawyer]

I don't have a strong opinion about its constitutionality, but the fact that it has been in the rules for 80 years means little. For one thing, it is a rarely used provision, so there were few chances to challenge its constitutionality. And for another, lots of things are around a long time and then are declared unconstitutional. The Sentencing Guidelines were used in thousands of cases, until SCOTUS ruled that it violates the right to a jury to make them mandatory.

[Kazinski]

Has it been litigated?

This isn't really remarkable at all, a lot of people are still asserting the Alien Enemies Act is being disputed as unconstitutional, the President's unilateral power to set tariffs is being litigated as unconstitutional.

Humphreys Executor is teetering on the edge, that decision is more than 90 years old.

[Noscitur a sociis]

Yes, it has been litigated: the Supreme Court case rejecting Prof. Blackman’s position has been cited multiple times.

[Kazinski]

The special counsel law in Morrison, or the Judge appointed counsel rule the court dodged in Danziger?

[not guilty]

Noscitur a sociis can speak for himself, but I suspect he is referring to Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787, 793 (1987) ("it is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.")

Professor Blackman inexplicably declines to mention Young.

[ScottK]

Humphreys Executor would be perfectly good law if Biden had had the foresight to fire Ferguson and Holyoak at FTC.

[rloquitur]

This judge is beyond daft. First of all, he conflates the Administration hurrying up to get the criminals out of the country before he could rule and the violation of his oral statement, not reduced to writing, to turn the planes around. He is creating a circus. The courts are used to being able to bully litigants. No private client would dare act knowing that a hearing is coming that afternoon. But the Executive can do that, and it is not improper. And any view to the contrary is simply contrary to the constitutional framework.

Second, the oral statement's enforceability is dubious. So criminal contempt is problematic from the get-go. If Boasberg does this, he should be deported to El Salvador to do some time in CECOT.

[Roger S]

"The courts are used to being able to bully litigants." Yes.

[rloquitur]

Well maybe, just maybe, the courts should clean up their own houses.

[jawlz]

I've been following the Volokh Conspiracy, on and off, since the days it was hosted on its own site. The sheer partisanship of Josh Blackman's posts should be embarrassing to the other conspirators.

[rloquitur]

Boasberg's order is pretty embarrassing.

[roger]

Have you read the order?

[rloquitur]

Yep. I had to take some breaks because I couldn't stop laughing.

[Roger S]

There are more posts from partisan Trump-haters.

[Michael P]

Those are (D)ifferent, of course. It doesn't matter how many times they backed The Smasher.

[neurodoc]

Does the VC ban people? There are some posters who breach the most minimal standards of decency and keep returning.

[shawn_dude]

The "Reverend" claimed on multiple occasions that his account was banned and he was forced to create a new one.

If you wander over to the other parts of Reason (unrecommended), you will find the discourse to be far, far worse.

[neurodoc]

Think of the classic movie Home Alone with McCauley Calkin, except what you have in this remake of the excellent original is the VC stalwart parents gone and Josh Blackman left in charge to ensure proper order. The "humor" just doesn't begin to work, though, because Josh is so unbelievably worshipful of Clarence and the rest of the conservative block that there is never any element of surprise; he's absolutely predictable with what you have labelled as "partisanship."

(Has Josh ever broken ranks with the objects of his sycophancy? How about the Orange man himself, any daylight between Josh and him? If so, when and over what?)

[Justice Barrett]

He was somewhat interesting when he was a law student. Today his writing is simply a waste of time.

[Mark In Florida]

Did you by chance notice the sheer partisanship of Somin's posts? He's deranged. Blackman is a nice change.

[David Nieporent]

No. What partisanship?

[dwb68]

Pardons will happen.
And who, exactly, is going to enforce any fines or whatnot?

Nobody, that's who.

Democrats: sticking up for gang members, not ordinary Americans.

If Democrats want to win elections again, they need to make this go away.

[Justice Barrett]

Who is a Democrat here?

[not guilty]

Well, I am a Democrat, and a proudly partisan one.

That having been said, I have represented clients far more vile than Donald Trump -- accused or convicted murderers (including one convicted of assassinating his opponent in a state legislative election), attempted murderers, gangsters, rapists and armed robbers. Each was entitled to, and received, more due process than the brown folks that Trump is summarily deporting.

[Katall]

The world according to Josh: if DOJ refuses to prosecute, there can be no prosecution, even if there is a blatant criminal violation of the law by the prosecutors.

[rloquitur]

See, e.g., Eric Holder.

Fuck off, Katall.

[MaddogEngineer]

Yes, Democrats burned that bridge by celebrating Obama's wingman defiance of being held in contempt of Congress. For getting people killed by his cowboy gun running sting into Mexico and stonewalling about it.

This will not stop until each side acknowledges their contribution to the vandalism of institutions and norms.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

But that's the Sacred Norms they're trying to preserve. Where only their side flexes.

[Katall]

What about Holder?

Josh, apparently thinks that he, too, could not be prosecuted for criminal contempt. I disagree with that, also.

[Kazinski]

Holder could have been prosecuted for criminal attempt if Holder's DOJ wanted to prosecute him.

Seems strange a judge can appoint his own prosecutor to prosecute contempt but congress can not.

Congress did not pass a statute giving itself authority to appoint its own prosecutor, but they didn't pass any statute giving that authority to judges either.

[Martinned2]

The constitution according to Josh Blackman: "For the Presiden[T], compliance with the constitution is optional."

[rloquitur]

Has anyone actually taken the time to read Boasberg's order? What a joke.

[David Nieporent]

Not you, but sure. Some of us have.

[rloquitur]

It's so laughable. He comes off like a douche. He got got. He should have been more specific--relying on all this "context" and the "oral command"---ha ha ha ha ha ha ha.

Once they left US airspace, they were "removed from the US." Try as he might, he can't get around that. And whining that the government acted before he could have his precious hearing and TRO . . . . cry me a river.

This clown acted without jurisdiction, which meant that he violated the Constitution. So he needed to chill out . . . . who are going to be the contemnors anyway? Is he sure that they got all the context? Ha ha ha ha ha ha.

[halbax]

That definitely isn’t how things work on flights, for two reasons. First, any US aircraft that is in flight is under the jurisdiction of the United States. But second, the court order wasn’t really directed at the flight, but rather the person in the US who ordered the deportations and controlled the flight. That person never left the US and so is certainly not removed from the US.

[wvattorney13]

I, for one, do not lower myself enough to read unconstitutional orders!

[David Nieporent]

Unconstitutional! Why not call them war crimes, too?

[JoeFromtheBronx]

Anything that Trump or anyone else does will be considered "obstruction" which could trigger further indictments

JB is such a clown. Not that this blog as a whole is very concerned about Trump, except for two contributors. The others either blatantly support him or are concerned about limited things.

[Frank Drackman]

Doesn't Judge Boazo have some real Criminals to bother?

[cannpro]

No one cares about Blackman's Officer theory. No one on the Supreme Court could even bring themselves to dignify his theory with a response in Trump v. Anderson.

[Kazinski]

It actually got a bit of play in oral arguments, from Jackson, Gorsuch, and Kagan.

A very brief moment in the sun, but like a lot of arguments, it wasn't needed to get to the result: 4 1/12 that 14.3 needs Congressional action to execute it, and 3 1/2 that the states can't execute it on their own.

[David Nieporent]

Is there some reason Young v. United States ex rel. Vuitton et Fils SA, 481 US 787, 793 (1987) doesn't settle this?

it is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.

[Bored Lawyer]

That's dictum, but certainly strong support for the proposition that courts have such authority. Whether it should be used, and whether contempt can be shown, are different matters.

[David Nieporent]

I don't see how it is remotely dictum. The issue was squarely before the court and necessary to its opinion. Just wanted to add this quote:

The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches. "If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls `the judicial power of the United States' would be a mere mockery." Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450 (1911). As a result, "there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience." Ibid. Courts cannot be at the mercy of another Branch in deciding whether such proceedings should be initiated. The ability to appoint a private attorney to prosecute a contempt action satisfies the need for an independent means of self-protection, without which courts would be "mere boards of arbitration whose judgments and decrees would be only advisory." Ibid.

Id at 796.

[rloquitur]

I tend to agree. Punishing contempt is a judicial power . . . .

[Bored Lawyer]

Contempt is a crime, that has to be prosecuted like any other. And the accused has the right to trial by jury. Courts punish contempt the way they punish any other crime. (Unless the contempt is in the court's presence, but that's not what we're talking about.)

[rloquitur]

Agreed that jury trial right engages if sentence is going to be 180 days.

[Bored Lawyer]

The criminal statute limits the sentence to six months for a natural person. 18 USC 402.

https://www.law.cornell.edu/uscode/text/18/402

[Noscitur a sociis]

That’s the statute for violating an order in a way that independently constitutes a crime. The general contempt statute is 18 U.S.C. § 401, which has no maximum term of imprisonment (although I believe typical practice is to precommit to no more than 6 months to avoid the need for a jury trial).

[Don Nico]

Since the alleged contemptuous actions all happened in the past, why shouldn't Mr. Trump issue a pre-emptive pardon for all action of government agents since Jan. 20 2025.

[not guilty]

The President can pardon federal criminal contemnors, but not civil contemnors.

[Bored Lawyer]

Because the holding was that it was improper to appoint counsel for a private party that has an intertest in the case as the prosecution. Scalia strongly disagreed with the reasoning you quote, but concurred in the judgment.

(Young made it much harder to enforce injunctions by criminal prosecutions, since US Attys are rarely interested in pursuing those cases.)

[Kords]

There was more than one holding in the case. The petitioner's first argument was that "the District Court lacked authority to appoint any private attorney to prosecute the contempt action against them, and that, as a result, only the United States Attorney's Office could have permissibly brought such a prosecution." But the court rejected that argument by holding that "courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt."

Having made that first holding, the Court then had to continue to the next issue, which was whether a party that is the beneficiary of a court order may be appointed to undertake criminal contempt prosecutions for alleged violations of that order. In answering that question, the Court held that such persons may not be appointed as prosecutors.

Reaching the second question was only necessary because of how the Court held with regard to the first question. If courts can't appoint private persons to prosecute contempt, that would have ended the inquiry.

[Area Man]

You’re proving his point. Because the second holding was sufficient to decide the case, it wasn’t necessary to reach the first. The second holding is also narrower than the first, meaning the first is doubly unnecessary.

Instead, the Court should have said, “We assume without deciding that courts have this power because, regardless, it was improperly exercised here.”

[not guilty]

"Instead, the Court should have said, 'We assume without deciding that courts have this power because, regardless, it was improperly exercised here.'”

As Justice Thurgood Marshall reportedly told one of his clerks, there are two points lacking in your analysis: nomination by the President and confirmation by the Senate.

[Area Man]

Da fuq? Supreme Court decisions can’t be criticized without nomination and confirmation now? I guess we won’t be hearing many more denunciations of Dobbs around here anymore, then.

NG, I don’t usually agree with you, but you usually make respectable, thoughtful points. This was…not that.

[David Nieporent]

That simply is not what dictum means. People have expressed some really weird notions in the VC comment threads recently about the concept. The fact that there are two separate ways that would get to the same result does not mean that either one is "dictum." (Indeed, logically, it can't mean that, because then each would be dictum. Imagine that a public figure sues someone for defamation. The court grants a motion to dismiss the case on the ground that the statute of limitations has expired and also that the plaintiff has failed to establish actual malice. Either holding would be sufficient on its own and render the other holding unnecessary. Does that mean that both are dicta? Only the one addressed second in the opinion is dicta? Only the "narrower" one is binding and the broader one is dicta? No, no, and no. Both are ratio decidendi and precedential holdings. (Obviously if it's just a trial court holding it's not binding precedent.))

[Area Man]

The narrower holding is the only one necessary to the judgment. If a court says something is preserved but not error, the preservation holding is dicta because it’s not necessary to the judgment. There was no reason to decide that issue even if it was raised by the parties. The court could just ignore the preservation issue or assume without deciding it was preserved because there was no error in any event.

[David Nieporent]

If a court says something is preserved but not error, the preservation holding is dicta because it’s not necessary to the judgment.

It is not. That's just not what dicta actually means. Deciding an issue not relevant to the case is dicta. Deciding a broader issue when a narrower issue could be sufficient is not.

[Kazinski]

Yet, I don't find that power in the constitution_ but I do find this:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

And "The executive Power shall be vested in a President of the United States of America."

And "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Not much support for that proposition there, but it doesn't surprise me much reading about judges writing how much power judges should have.

But no matter, the judge made criminal contempt special prosecutor power is powerless against the constitutional presidential pardon power.

I predict Trump will litigate the judge created power as far.as he can before invoking his pardon power though.

[shawn_dude]

Easy prediction. Trump has a long, long, long history of using legal tactics to delay judgements.

[not guilty]

"That's dictum, but certainly strong support for the proposition that courts have such authority."

No, that is not dictum at all. Justice Brennan, for the Court, was responding to the Petitioners' contention that the District Court lacked authority to appoint any private attorney to prosecute the contempt action against them, and that, as a result, only the United States Attorney's Office could have permissibly brought such a prosecution. Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787, 793 (1987). The language employed there was necessary to resolution of that sub-issue.

[Area Man]

But it wasn’t necessary to reach that question because, even assuming the district court had that authority, it still acted improperly here. Resolution of the question, then, was unnecessary to the judgment.

[not guilty]

Wrong. It was a question fairly presented by the record, and the Court's resolution of it was not extraneous to its decision.

[HazelMeade]

I thought of a mechanism by which SCOTUS can reassert the rule of law:
No more deportation flights to El Salvador until Abrego Garcia is released. (And anyone else imprisoned there who hasn't been convicted of a crime.)

They might not be able to control Trump's foreign relations with Bukele, but they can certainly say whether it is legal to send deportees into foreign prisons, and they can make the Executives ability to do so contingent on upholding due process rights.

[rloquitur]

Good luck with that . . . .

[Noscitur a sociis]

How exactly is it that you foresee the Supreme Court being in the position to issue such an order?

[HazelMeade]

Someone could file suit challenging the constitutionality of the deportation flights on the grounds that such practices inherently violate the due process clause, based on the very arguments Trump is making - that once out of US custody, due process rights can no longer be enforced. If due process rights truly cannot be guarenteed to people deported to foreign prisons, then by extension the practice of deporting people to foreign prisons is unconstitutional, since the constitution demands that ALL persons be afforded due process - including unlawful immigrants in US custody. And if El Salvador is specifically indicating that it is unwilling to grant due process to migrants deported from the US into it's custody, then a specific injunction against El Salvador can be put in place. The courts can thus restrict the Executive's power to deport people to foreign prisons IF those countries hosting the prisoners are not complying with due process obligations regarding prisoners transferred from the US to their country. And it can then issue an injunction temporarily barring flights unless and until guarentees are put in place by the executive that due process will be adhered to by the destination nation.

[Noscitur a sociis]

Why would relief designed to protect someone else’s due process be tied to Abrego Garcia’s release?

[HazelMeade]

Well, it would be tied to the release of anyone that we had previously sent that had not been convicted of a crime. Alberto Garcia isn't the only one. Since they all should have been granted due process, then anyone sent without a conviction was "in error", and therefore El Salvador is obliged to return them.
Actually if I understand it correctly, that's actually what Boasberg is asking - that they all should be brought back and granted a hearing. SCOTUS might cut this a little more narrowly and limit it to the release of those not convicted of anything into El Salvador.

[Martinned2]

Since you're clearly trying to think outside the box, might I suggest a periodic penalty payment? Just impose a periodic penalty payment of, say, $10,000 per day until Garcia is back in the United States. That might not get him back, but it will certainly make him one of the richest prisoners in El Salvador, and that must surely help.

[JoeFromtheBronx]

It will be useful for his wife and special needs children, too.

[HazelMeade]

According to Senator Van Hollen the Salvadorean government has said it is being paid hold Albrego Garcia. I think SCOTUS could also at least start by barring payment from being made for his continued imprisonment.

[Kazinski]

How does Sen Van Hollin know?

As I pointed out in the open thread the US and El Salvador have acknowledged a payment of 25k for Venezuelan TdA prisoners, of which there are at least 250 per NPR, amounting to 6,250,000.

I haven't seen anything that indicates we are paying anything to El Salvador for Salvadorans.

[HazelMeade]

He met with the Vice President.

https://www.reuters.com/world/americas/us-senator-lands-el-salvador-seeking-release-wrongly-deported-salvadoran-man-2025-04-16/

"Van Hollen arrived in El Salvador on Wednesday to meet with senior officials and advocate for Abrego Garcia's release, but was told by El Salvador's Vice President Felix Ulloa that he could not authorize a visit or a call with Abrego Garcia.
Van Hollen, who is a member of the U.S. Senate Foreign Relations Committee, said Ulloa also told him El Salvador was not releasing Abrego Garcia because the United States was paying to keep him incarcerated."

[Stephen Lathrop]

It seems unwise to encourage the prisoner's demise.

[Mark In Florida]

That's what I was thinking. If he gets in a fight with another prisoner, a lot of problems would disappear. The bigger those problems are, the more likely it seems, especially in a place like El Salvador.

[David Nieporent]

Another MAGA fantasizing about murder.

[Martinned2]

https://en.wikipedia.org/wiki/Wrongful_death_claim

[Kazinski]

What statute would that be under?

[Martinned2]

If the court has the inherent civil contempt power to lock someone up to get them to comply with its order, surely it must also have the lesser power of imposing a financial penalty for the same purpose.

[shawn_dude]

Trump runs the world's largest airline. He's uniquely placed to put deportees anywhere he wants them--even space.

[The Margrave of Azilia]

On the one hand, the Constitution provides for the appointment of certain officers by "the Courts of Law," and this sounds like an example of that kind of appointment.

On the other hand, Trump sounds like the kind of guy who would use the pardon power to shield his own people from criminal contempt charges.

Meanwhile, on the one hand, criminal contempt cases can generally be held without a jury (which would be infected by icky Republicans, though maybe not so much in certain jurisdictions).

And on the other hand, to try a criminal contempt without a jury, the judge would have to call it a petty offense, and would a judge want to trivialize the charges in that way?

And on the other hand again, the Sixth Amendment says juries in all criminal prosecutions, not all but petty or all but contempt charges.

[rloquitur]

Who is going to be held in contempt? Has to be an actual person. And how in the world is anyone going to be able to say that those guys acted with the requisite willfulness? This dipshit judge expects people to know what the context was? Plain English=guys were out of the country and hence already removed.

Fuck off Boasberg. This POS thinks that the deliberate forgery of a document deserved no jail time but that the failure to unremove deserves some sort of criminal prosecution. What a joke.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

He's the head enforcer of the Resistance. This is their last hope.

[Michael Ejercito]

When dis he say that deliberate forgery of a document deserves no jail time?

Was the defendamt just some kid who forged a report card?

[rloquitur]

Kevin Clinesmith. Boasberg is a POS.

[not guilty]

"Who is going to be held in contempt? Has to be an actual person."

The Judge is still in the process of determining whose acts were arguably contumacious. As I said upthread, Judge Boasberg does not specify what individuals may be subject to criminal contempt proceedings; however, the order recites at page 44:

In the event that Defendants do not choose to purge their contempt, the Court will proceed to identify the individual(s) responsible for the contumacious conduct by determining whose "specific act or omission" caused the noncompliance. See Cobell v. Norton, 334 F.3d 1128, 1147 (D.C. Cir. 2003); United States v. Voss, 82 F.3d 1521, 1525-27 (10th Cir. 1996). At the suggestion of the Government in the last hearing, the Court will begin by requiring declarations. See Apr. 3 Hrg. Tr. at 24–25. Should those be unsatisfactory, the Court will proceed either to hearings with live witness testimony under oath or to depositions conducted by Plaintiffs. Id. at 29-30 (Plaintiffs suggesting declarations, depositions, hearings). The next step would be for the Court, pursuant to the Federal Rules of Criminal Procedure, to “request that the contempt be prosecuted by an attorney for the government.” Fed. R. Crim. P. 42(a)(2). If the Government "declines” or “the interest of justice requires, "the Court will "appoint another attorney to prosecute the contempt.” Id.

[Michael Ejercito]

Why was there a need to e-mail the court?

I am sure the planes returned to the U.S.

[rloquitur]

Yeah, no shit. My point is that it might be a blind alley.

[neurodoc]

Think of the classic movie Home Alone with McCauley Calkin, except what you have in this remake of the excellent original is the VC stalwart parents gone and Josh Blackman left in charge to ensure proper order. The "humor" just doesn't begin to work, though, because Josh is so unbelievably worshipful of Clarence and the rest of the conservative block that there is never any element of surprise; he's absolutely predictable with what you have labelled as "partisanship."

(Has Josh ever broken ranks with the objects of his sycophancy? How about the Orange man himself, any daylight between Josh and him? If so, when and over what?)

[neurodoc]

Do you think that the vulgarities you direct at Boasberg add force to your legal arguments? Or you aren't here to engage in legal reasoning and arguments?

[wvattorney13]

"On the other hand, Trump sounds like the kind of guy who would use the pardon power to shield his own people from criminal contempt charges."

That would be unthinkable. Sort of like pardoning your son for felony crimes. No president would ever do that.

[Noscitur a sociis]

On the one hand, the Constitution provides for the appointment of certain officers by "the Courts of Law," and this sounds like an example of that kind of appointment.

Justice Gorsuch discusses this in the Donziger case Prof. Blackman mentions. The appointment authority only lies with a court if “Congress … by Law” places it there. But Congress hasn’t passed a law that does that: the appointment authority is in a rule of criminal procedure that was enacted by the Supreme Court.

[Michael Resanovic]

This begs the question which I discuss below, of whether a court already has inherent power to do that, and fed rules are simply regulating that power.

[David Nieporent]

On the other hand, Trump sounds like the kind of guy who would use the pardon power to shield his own people from criminal contempt charges.

I mean, it wasn't literally that (because he wasn't part of the Trump administration), but the Arpaio pardon was effectively that.

[Michael Resanovic]

"in all criminal prosecutions, not all but petty"

The sixth amendment is being violated. Plain and simple.

[Noscitur a sociis]

What are you quoting from?

[Michael Resanovic]

Margrave's comment. The last paragraph.

[not guilty]

A jury is available in criminal contempt proceedings to the same extent as in the trial of substantive offenses. Bloom v. Illinois, 391 U.S. 194, 198 (1968).

It has long been settled "that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision." Blanton v. City of No. Las Vegas, 489 U.S. 538, 541 (1989), quoting Duncan v. Louisiana, 391 U. S. 145, 159 (1968). A defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months. Blanton, at 542.

Petty contempt like other petty criminal offenses may be tried without a jury, and criminal contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute. Taylor v. Hayes, 418 U.S. 488 (1974).

As the late Johnny Cash sang, I don't like it but I guess things happen that way.

[Longtobefree]

More likely the DoJ launches an investigation into the collusion of several lower court judges to violate their oaths to uphold the constitution.

[roger]

That does sound like the kind of bullshit the current DOJ would consider a good use of resources.

[wvattorney13]

"Anyone who may have committed an act of criminal contempt in the court of a judge's name that begins with "B" between January 20, 2025 and the present is hereby pardoned."

[The Margrave of Azilia]

Not ambitious enough. Pardon all federal crimes for the past ten years.

[Dan Schiavetta]

No candidate for President has ever voluntarily accepted an offer from a foreign government to provide dirt on his opponent -- until Trump did in 2016. The fact that it turned out to be a setup by a private person, and Trump was too stupid to see that he was being played, is irrelevant.

[rloquitur]

So what?

[Dan Schiavetta]

Josh treats "Muellergate" as a scandal. In fact Trump did try to collude, and he thought he was colluding. And Mueller did get indictments of Trump people for colluding with Russia which resulted in convictions.

[rloquitur]

Is the sky blue on your planet?

[Mr. Bumble]

Careful, he might mute you.
By the way, Capt. Dan is not on a different planet, but in an alternate universe.

[John 4]

Everything he said was true, even if you’re embarrassed by it.

[Frank Drackman]

You want to talk "Stupid" how about Pencil Neck Adam Schitt, not realizing he was part of a "Jerky Boys" routine when they called saying
"Vee Haff Pictures of Nake-ed Trump!"
instead of hanging up, or just smiling at getting Punked, Schitt just continued "Umm, so what is the nature of the Material????, obviously we would welcome the opportunity to get copies of the material...."
pretty bad when it's the Prank Caller who hangs up first.

Frank

[Martinned2]

Is there any particular reason to assume that a contempt, even a criminal one, is an "offence against the United States"?

[Martinned2]

It turns out that that question has been asked and answered: https://tile.loc.gov/storage-services/service/ll/usrep/usrep267/usrep267087/usrep267087.pdf

[Martinned2]

For completeness, there are obiter dicta in an earlier case where the Supreme Court suggested that the pardon power did not extend to "fines . . . imposed by a co-ordinate department of the government for contempt of its authority", but one might take that as being limited to civil contempt.

https://tile.loc.gov/storage-services/service/ll/usrep/usrep114/usrep114411/usrep114411.pdf

[Michael Resanovic]

Pardon is legally forgiveness, not nullification. Hence it applies to punitive actions, but doesn't release the contemnor from still doing something he's obligated to do for the plaintiff.

[not guilty]

"Is there any particular reason to assume that a contempt, even a criminal one, is an 'offence against the United States'?"

No assumption is necessary. In both federal and state court:

Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:

"These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech."

Gompers v. United States, 233 U. S. 604, 233 U. S. 610 (1914).

Bloom v. Illinois, 391 U.S. 194, 201 (1968) (footnote omitted).

[Martinned2]

It makes sense that a criminal contempt is a criminal offence, but at the same time it is sufficiently sui generis that it might not be a offence *against the United States*, or at least not in the sense of how that term is used in article II, section 1, clause 6. Structural separation of powers arguments like the case of The Laure alludes to could suggest that the President cannot pardon someone who has been found guilty of criminal contempt, for example.

[rloquitur]

Did anyone see that last bit of Boasberg's screed? He is holding out hope that the government will purge the contempt. Not just no, but fuck no.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

What does he think that looks like? That we time travel and turn those planes around?

He's a buffoon. A deranged buffoon.

[wvattorney13]

How do you purge a criminal contempt? You purge a civil contempt. A criminal contempt is a punishment for a past action.

[not guilty]

I agree. If the relief imposed upon a finding of contempt is in fact a determinate sentence with a purge clause, then the contempt is civil in nature. Hicks v. Feiock, 485 U.S. 624, 640 (1988).

[rloquitur]

Shows that the judge knows his hand is weak.

[SRG2]

Summary: the executive does something beyond their proper powers. The Judiciary tell them not to and to unwind their action. Josh complains that it's the judiciary who are violating their powers.

[rloquitur]

Judge issues order without jurisdiction then whines when it is complied with.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Hey did you see that part where the Judiciary didn't have jurisdiction?

[David Nieporent]

No. Where on earth did you get that from?

[Magnus Pilatus, MBA, MD, JD, PhDx2]

SCOTUS?

[David Nieporent]

SOTUS did not, of course, say that the judiciary didn't have jurisdiction.

[rloquitur]

"Additionally, that night — after the oral injunction was relayed to the agencies, see Apr. 3 Hrg. Tr. at 21, and as custody-transfer
operations proceeded — the Government never contacted the Court with any questions about the injunctions’ scope. That is telling. The Government had been in regular email contact with
chambers throughout the day, and it thus knew that it would get a rapid reply to any question it might have about the injunction. Indeed, that is exactly what had happened that morning: on the
email chain that included the Government, Plaintiffs asked the Court to confirm whether the first TRO covered only named Plaintiffs, and the Court replied a mere nine minutes later. "

Does this judge realize how ridiculous this looks? How were the alleged contemnors supposed to email him? Snicker.

[Michael Ejercito]

I am sure the planes returned to the U.S.

What is sipposed to be the basis of the contempt proceedings?

[not guilty]

"Does this judge realize how ridiculous this looks? How were the alleged contemnors supposed to email him? Snicker."

Uh, by composing an email message and then hitting "send"?

[rloquitur]

Some random official is going to email a judge?

[David Nieporent]

No; some random official is going to call or email his lawyer, who is going to email the judge.

[rloquitur]

Yeah, no kidding, but the reality is that this is a criminal contempt proceeding--the judge yapping about the ability to send emails undercuts his criminal case. Get the picture now?

I get it dude, you'd give your eye-teeth to give Judge Boasberg a nice tongue bath and you probably fantasize about doing it Aun Shinrikyo style (i.e., buying and drinking his bathwater). This is why you'd empathize with the idea that the Trump Administration should have cooperated with the judge and been super duper compliant. But criminal contempt can't punish an attitude or even a four corners approach to the written order. But that's not the reality. The Trump Administration is under no requirement to go above and beyond like an obedient servant.

[David Nieporent]

Get the picture now?

No. Other than that you're a lunatic, but that's overdetermined.

[rloquitur]

Well, I can explain it to you; I can't understand it for you.

[rloquitur]

Speaking of Muellergate:

https://redstate.com/elizabeth-vaughn/2020/02/24/newly-declassified-fbi-documents-at-odds-with-claims-of-mueller-team-in-papadopoulos-case-n129468

[Noscitur a sociis]

But unlike with Mueller, Trump would have no power to effect the removal of the special prosecutor….

I agree with Justice Gorsuch in the Donziger case.

Because Gorsuch was unable to persuade three of his colleagues to hear the Donziger case, the opinion of the Second Circuit remains good law. In that case, the court held that “the Attorney General has the power to direct and even remove special prosecutors” who have been appointed under Fed. R. Crim. P. 42(a)(2). 38 F.4th 290 (2d Cir. 2022).

[Kords]

Regarding Young v. United States ex rel. Vuitton et Fils SA, 481 US 787 (1987), the case squarely held that courts have power to appoint private persons to prosecute contempt proceedings (and it is also authorized by Rule 43 of the Federal Rules of Criminal Procedure). I obviously understand why Blackman would agree with Justice Scalia's concurrence suggesting that courts lack such power given that it would effectively allow Trump's DOJ to engage in contemptuous acts without consequence.

Scalia's concurrence was based on a relatively limited conception of the Article III "judicial power," under which courts may only "decide, in accordance with law, who should prevail in a case or controversy." On the other hand, Scalia argued for an expansive view of the executive power, suggesting that the Executive Branch has a monopoly on "the prosecution of law violators" because such prosecutions are "part of the implementation of the laws." But Scalia is probably wrong as a matter of original understanding.

As Professor Emma Kaufman has explained, "The idea that the state has a monopoly on criminal prosecution took root in the late nineteenth century, after the birth of police and prisons." (The Past and Persistence of Private Prosecution, 173 U. Pa. L. Rev. 89 (2024)). But before that, private prosecutions were commonplace. Even now, governments "outsource their criminal dockets to firms, giving birth to a contractual, privatized model of criminal law." As such, it is dubious that as a matter of original understanding, the power of prosecution was considered as belonging solely to the executive.

Even in Scalia's concurrence, he suggested that “it [was] not necessary to decide whether the Constitution[] ... forbids Congress from conferring prosecutory authority on private persons.” And in a later opinion, again hinted that criminal prosecution might not need to be “conducted by government at all.”

So if that is the case, then it is hard to see why judges may not use the authority provided by FRCP 43 to appoint private prosecutors for contempt proceedings because Congress approved the adoption of the Federal Rules of Criminal Procedure.

[wvattorney13]

"Even in Scalia's concurrence, he suggested that “it [was] not necessary to decide whether the Constitution[] ... forbids Congress from conferring prosecutory authority on private persons.” And in a later opinion, again hinted that criminal prosecution might not need to be “conducted by government at all.”

So if that is the case, then it is hard to see why judges may not use the authority provided by FRCP 43 to appoint private prosecutors for contempt proceedings because Congress approved the adoption of the Federal Rules of Criminal Procedure."

Because in this game of chess, the president could just say that anyone indicted by this private or special prosecutor is hereby pardoned.

[shawn_dude]

There's a difference between their having the authority and that authority being used successfully.

The President has already pardoned people who beat cops with fire extinguishers. That isn't a good reason to stop prosecuting people who beat cops with fire extinguishers.

[Michael Resanovic]

Good points. It's worth pointing out that private prosecutors were legally considered to be representing the sovereign, not themselves. This, despite the fact that they took no oath of office, no oath of allegiance, received no pay, could be female (esp. in rape cases), and could even be foreigners (iirc there's an example of the last point in Douglas Hay's "Policing and Prosecution in Great Britain from 1759-1850"). It was still Crown/state vs. def.

[Noscitur a sociis]

I’d recommend Prof. Jonathan Barth’s Criminal Prosecution in American History: Private or Public, 67 S.D. L. Rev 119 (2022). It makes a thorough and compelling case that private prosecution was much more prevalent for much longer than has been conventionally understood. The fact remains, however, that that wasn’t true at the federal level: U.S. attorneys were granted exclusive prosecutorial authority in the Judiciary Act of 1789, and the government has retained it ever since (outside of special provisions like the one at issue here).

[Kords]

You're right that the history of private prosecutions is more firmly entrenched with regard to the states than the federal government, but even Professor Barth thinks the notion that the feds have exclusive prosecutorial authority with respect to federal crimes is overstated.

It is true that the federal government "adopted a public system of prosecution far earlier than many of the state and local governments, and yet, even in federal courts, the victim was neither silent nor shut out of the process. Private citizens, at first, could lawfully initiate federal prosecutions by lobbying the federal grand jury directly if the federal district attorney determined not to press charges. Attorney General William Bradford, in 1794, affirmed that a private citizen could legally compel a federal district attorney to act upon a grand jury presentment, even after the district attorney decided not to prosecute. . . . Not until the middle of the nineteenth century was private participation in federal courts officially curtailed."

To me, that history suggests that to the extent private prosecution conflicts with federal law, that conflict is statutory rather than constitutional. So because Congress seems to have allowed for private prosecutions for contempt via FRCP 43, such prosecutions are legal. The history suggests it is constitutional. And FRCP 43 represents an exception to any statutes that normally bar private prosecutions in other contexts.

(And I recognize that you seem to agree with my position given your reference to "special provisions like the one at issue here." But I just wanted to explain my thinking on the subject a little bit more.)

[Kazinski]

I'd also like to express my contempt for Judge Boasberg.

His opinion reeks of "do you know who I am?"

But really who is he going to find in contempt? Trump? Trump has criminal immunity. Some underling doing Trump's bidding? The pilot?

His order says he finds "The Government" in contempt:
"As this Opinion will detail, the Court ultimately determines that the Government’sactions on that day demonstrate a willful disregard for its Order, sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt."*

I suppose Trump can pardon the Government for criminal conduct as much he can pardon a corporation.

How does a prosecution, even by a special prosecutor, go forward if everyone has been pardoned?

Boasberg is just wanking.

*I was assured just a few days ago that Boasberg is as much the government as the DOJ, but lets not explore that topic now.

[TaioF920]

I heard Boasberg lets his wife peg him with a strap on.

[not guilty]

You heard that from whom, TaioF920?

And that, if true, is the business of anyone other than the judge and his wife how?

[Sarcastr0]

Did you take some MAGA asshole pills today or what?

[Michael P]

There are no such things, and you as usual have only inchoate rage, but other than everything about it, great comment!

[rloquitur]

For one, I don't need to take asshole pills.

[David Nieporent]

You're just naturally gifted at being one.

[rloquitur]

Yep. But I am smarter than you. I continue to laugh at all the law you keep citing. This is a political fight, not a legal one. The idea that Boasberg can't do contempt borders on frivolity. And hence you scoff at it. And i get that you can't have a legal system without that concept, but like Judge Boasberg says, context matters.

You may not like it, but you better understand that's what you are dealing with. Trump is not going to tolerate piss-ant judges like Boasberg (who was all good with sending forged documents to a court, hence the wrist-slap to Clinesmith) stopping him from undoing the sheer lawlessness of Biden in letting pretty much anyone across the border. And if it means that the idea of judicial supremacy is broken, well, TFB. Federal courts have been way way over their skis forever, and it's high time they get their wings clipped.

[Kazinski]

In the alternative if Boasberg does find the Government in criminal contempt, maybe Capitol punishment would be in order. 50% cut in funding and relegate DC to Maryland.

That seems equitible.

Maybe eradicate all the district judges in DC too.

[Kords]

The order specifically says that he will make inquiries as to the specific individuals to hold in contempt.

As for your question regarding how a contempt prosecution can "go forward if everyone has been pardoned," that is a pure hypothetical until the individuals involved have actually been pardoned. If such a pardon issues, then I would expect the contempt prosecution to end. But the mere possibility of future pardons does not mean that a prosecution can't go forward in the present.

[David Nieporent]

But the mere possibility of future pardons does not mean that a prosecution can't go forward in the present.

Several convicted J6ers tried that argument after the election but before the inauguration: "Trump's going to pardon us when he takes office, so you should just not sentence us now." Every judge laughed at that.

[shawn_dude]

"I'd also like to express my contempt for Judge Boasberg."

...but not for the guy that illegally deported someone to a death prison without due process.

[Michael Resanovic]

The power to find in contempt has always had both prosecution and adjudication baked into it. The idea that there is a constitutional rule against judges appointing someone to prosecute - when they have the inherent (though defeasible) powers both to find in contempt and to set procedure - is unsustainable. Maybe there's a statute law/federal rules problem, but not a constitutional one.

[pts]

And what happens if Trump signs the affidavit the judge is requesting and says he ordered the plane to go. Will the judge hold him in criminal contempt? And then what happens? Will Bondi order the marshals to stand down? All of this comes from the modern position that the courts can remedy anything. They can't.

[ikaritenshi]

this is dumb. even if the court does assign its own attorney. it still needs the executive to carry out the punishment.

Grandstanding at its finest. I can't imagine the Supreme court allowing this to go forward, talk about escalation. Especially on an issue the court ruled you had no jurisdiction to rule on, while legally that may not matter, it matters politically and optically. Finding the administration in contempt at this point is as much a political endeavor and legal one. Especially on a position the president has strong voter support on. i cannot see Roberts who protects the institution above all else, allowing this to forward, if it makes past the circuit level.

[Incunabulum]

Let me see if I got this straight.

Trump might be guilty of contempt because he didn't follow the order of a judge that the USSC says didn't have the authority to issue?

Leave it to judges to think the only allowable response to a judge leaving the reservation is to just take it and cry to another judge later.

[shawn_dude]

The USSC never said the "withholding of removal" order by the immigration judge in 2019 was improper. Not sure where you're getting that from. Or do you mean the USSC decision that agreed that the administration must "facilitate" the return of Garcia?

[David Nieporent]

Trump might be guilty of contempt because he didn't follow the order of a judge that the USSC says didn't have the authority to issue?

Yes. You don't get to ignore a court's order because you personally decide that it shouldn't apply to you.

Leave it to judges to think the only allowable response to a judge leaving the reservation is to just take it and cry to another judge later.

If an innocent person is arrested by a police officer, the only allowable response is to take it and cry to a judge later. That's the way a legal system works.

[Michael Ejercito]

The order allegedly violated was an order for planes to turn around.

The planes have not returned to America yet?

[David Nieporent]

The order allegedly violated was an order for planes to turn around.

That was not, in fact, the order. If you're going to try to be pedantic, you should probably get your facts straight. The order was "those people need to be returned to the United States."

The judge then added, "However that's accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you."

[rloquitur]

"The order was 'those people need to be returned to the United States.'"

Not what the written order said.

[David Nieporent]

Do you think that if a judge issues two orders, "I didn't violate Order #2" is a defense to a charge of contempt for violating Order #1?

[Michael Ejercito]

Was there a deadline?

Courts know how to impose deadlines. A court is quite capable of telling a defendant, "You be here at 9 am tomorrow or you will be in jail until a verdict is rendered."

By what time were these people supposed to be in the U.S.?

[David Nieporent]

Was there a deadline?

"Immediately."

[rloquitur]

As a practical matter, for most litigants, the answer is that you'd better follow both orders. But here, the Administration has some good caselaw on its side, and that vitiates criminal liability. Boasberg knows it. That's why he's made it so so easy for the Administration to purge the contempt. He's begging the Administration to give him a tiny win. And they are going to spurn him like a strumpet.

[David Nieporent]

But here, the Administration has some good caselaw on its side,

It does not. There is no caselaw that told them they could defy Boasberg's order. Yes, the 7th circuit had said that orders must be in writing, which has exactly as much legal effect on litigants in Boasberg's court as the Canadian Supreme Court saying it.

[rloquitur]

Vitiates willfulness, dumbass.

[David Nieporent]

Um, it does no such thing. There's no question that they were aware of the order and chose not to obey it. That's what defines willfulness.

A sincere belief that they weren't violating his order would negate willfulness. A sincere belief — even if they had one at the time, which seems unlikely — that they didn't have to obey his order would not.

[rloquitur]

Are you willfully ignorant? Did they know about two orders? Did they know the context? Did they just look at the written order and say, well, shit, they're already removed? That's the point. Also, if counsel said that it was ok, well, there's that too.

Why do you think that Boasberg is giving them an off-ramp?

[David Nieporent]

Did they know about two orders?

Yes. (Unless their Trump attorney should be held in contempt for himself violating the court order, since Judge Boasberg expressly said in that same oral order, "So, Mr. Ensign, the first point is that I -- that you shall inform your clients of this immediately,")

Why do you think that Boasberg is giving them an off-ramp?

Do you think courts ever want to hold people in contempt, and undergo a full-blown criminal trial, if they can avoid it?

[rloquitur]

I think you entirely miss the point. This is not a legal battle--it's a political one. It must be maddeningly frustrating to you for people to bring your robed demi-gods into the hurly-burly of messy politics where demagoguery can rule. But that's where we are because this judge decided to overstep practical red lines.

I get it that "the law" says that he gets to hold people in contempt even though he didn't have jurisdiction, but the optics of that are terrible. I get it that he thinks that his "oral command" had to be followed, and that seems a dubious proposition, legally speaking, but he's got some caselaw to support him, and the government has some caselaw to support its position. I get it that he thinks that he was being accommodating by responding to emails, but that's not a good look either--hey judge, make your written order clear the first time and don't rely on context.

And now for the most ridiculous thing---he says there's probable cause to find that the government be held in contempt--ok, but finding that the government as a whole screwed the pooch is not the same is finding that some individual in the government did so. How in the world is some person--doing his job--supposed to know the context? Supposed to know the term of art, "removal"? Boaaberg's gonna run into the same problem that many plaintiffs find when suing the government--there's a division of labor, and that often precludes a finding of an individual who is to blame (from a tort standpoint).

As a side note, Pam Bondi is taunting Judge Xinis. Bondi keeps saying that we don't want Abrego-Garcia back. What's Xinis supposed to do--take Bondi's 1A rights ?

[David Nieporent]

but finding that the government as a whole screwed the pooch is not the same is finding that some individual in the government did so.

Which is why this order was the first step in the process, not the last step. Quoting the conclusion of the order:

"For the foregoing reasons, the Court will find probable cause that Defendants’ actions constitute contempt. It will provide them an opportunity to purge such contempt. If they opt not to do so, the Court will proceed to identify the contemnor(s) and refer the matter for prosecution. A separate Order so stating will issue this day."

[rloquitur]

Yeah, I know. The problem is that he has to find that an individual willfully failed to comply. That's a tough putt.

[rloquitur]

Actually, DN, in certain states, there is a right to resist an unlawful arrest and to defend one's home against an unlawful attack by cops.

[David Nieporent]

Yes, in some jurisdictions, but "unlawful" in that context doesn't mean, "I'm innocent so they can't arrest me." It refers to a situation in which the arresting officers are breaking the law in some way.

[NvEric]

Judge Boabserg is in contempt and has been from the start by knowingly acting un-Constitutionally and now, most likely, involved in a criminal conspiracy, by knowingly pursuing "Civil Action No. 25-766 (JEB)" which in itself is designed to be the true purpose of his desires.

[David Nieporent]

Those are certainly all words.

[Stuart]

Wow Joshi you predicted it. Simply amazing, never before has there been a legal analyst with your uncanny ability. Simply, truly, amazing.

[rloquitur]

https://redstate.com/rusty-weiss/2025/04/17/biden-fbi-ordered-release-of-maryland-father-after-officers-suspected-him-of-human-trafficking-report-n2187959

To quote a famous movie, "This guy's dirty."

[David Nieporent]

As with the claims that he's MS-13, there's a conspicuous lack of anything even remotely resembling evidence — and as with his detention in 2019, the actions of law enforcement are utterly inconsistent with the evidence-free accusations. The Tennessee Star — which is not actually a newspaper, but one of a group of astroturfed websites designed to look like local newspapers — story makes about as much sense as one would expect if ignorant people were making things up. The police arrested them for local crimes but let them go because the FBI "ordered" them to, even though the FBI can't order them to do any such thing and also it would've been ICE, not the FBI, that they'd have contacted if they had illegal aliens in custody. And also he's on a terrorist list (LOL) and not on a deportation list. A third grader explaining why he came home late makes up more believable excuses.

But I just want to emphasize that literally none of this matters. He was still deported illegally.

[rloquitur]

"But I just want to emphasize that literally none of this matters. He was still deported illegally."

You still don't get it. This is a political fight. The story is a little sketchy--sounds like the cops garbled the message. But it is out there. Understand what you are dealing with.

[shawn_dude]

Dropping this listing of the facts in this case here for folks that might not have the full picture.

[JoeFromtheBronx]

If we want to bring back Robert Mueller, let's remember that his report spells out multiple possible criminal acts Trump committed.

It was part of a wider whole that continues into his second administration that so far resulted in in two impeachments.

The impeachment manager, the first time who warned he would just "do it again" if not stopped, was correct.

[rloquitur]

Dude, that ship has sailed; come back, and sailed again.

[Sarcastr0]

Saying a story is old and doesn't matter anymore is an incredible lack of self-reflection from this guy.

[rloquitur]

I am talking about the practical reality here, I didn't want to get into the premise, which is complete bullshit. Mueller was whining that Trump was a big bad meanie who criticized him. He then intimated that was obstruction. Pathetic.

[rloquitur]

https://www.realclearinvestigations.com/articles/2025/04/16/the_remarkable_rags-to-riches_story_of_stacey_abrams_1103954.html

Yet another example of Dem soft corruption. Hey DN, how do you like working hard for you money--you support these scum, and they wouldn't give you the time of day.

Stacey Abrams is a POS.

[Sarcastr0]

Dude, that ship has sailed; come back, and sailed again.

I am talking about the practical reality here!

[rloquitur]

What I find extremely funny is that you guys toil away--commenting on blogs, trying to show that you're part of the team. You're just fanboys. These corrupt scum wouldn't give you the time of day.

[Sarcastr0]

I find your assumption of my motives to be some quite telling projection.

[David Nieporent]

I am mystified what makes you think I "support" Stacey Abrams.