The Major Separation of Powers Problems with J.E.B. v. Trump

Judge Boasberg is about to unleash a truly independent counsel on the Trump Administration, and the President himself, subject to none of the strictures that Alexia Morrison faced.

On Wednesday, I briefly wrote about Judge Boasberg's proposed criminal prosecution briefly. Here, I would like to highlight several of the significant separation of powers problems, many of which were raised in DOJ's latest mandamus petition to the D.C. Circuit. Specifically, this special prosecutor would truly be untethered, and would be burdened by none of the modest restrictions that Alexia Morrison confronted.

Let's recap how the Ethics in Government Act (EIGA) operated. First, the Attorney General had to determine if there was "reasonable grounds to believe that further investigation or prosecution is warranted." Second, when such a finding is made, the EIGA called for a special three-judge panel of the Court of Appeals for the D.C. Circuit to "appoint an appropriate independent counsel" and "define that independent counsel's 'prosecutorial jurisdiction.'" Third, the special division was authorized to expand the independent counsel's "prosecutorial jurisdiction." Fourth, the independent counsel could be removed by the Attorney General for "good cause." That removal would be subject to review by the Special Division.

After Congress let the Independent Counsel statute lapse, Attorney General Reno issued a series of regulations that created the new "special counsel" regime. This was the authority that Robert Mueller and Jack Smith invoked to investigate and prosecute President Trump. I've argued at some length why I think those regulations are unconstitutional, but I'll table those issues for now. At least under those regulations, the special counsel was subject to some supervision by the Attorney General, and could be removed for cause. Moreover, Mueller adhered to DOJ policy, and did not indict the President.

Now, let's consider the path that Judge Boasberg is going down.

First, it is not the Attorney General, or some politically accountable figure, deciding whether the investigation and prosecution of the executive branch should begin. It is an inferior court judge. Now, you might reply that Attorney General Bondi is in fact a possible party to the case, since she signed pleadings in Judge Boasberg's court. I think that argument presumes that there was a crime committed, but I take the point. The bigger problem is that Judge Boasberg is also a party to the case. His oral and written orders are the basis of the contempt proceedings. Is he a disinterested party to determine how others should have construed his orders? I think not. When I tell my kids to do something, and they  largely ignore me, I am not a neutral party to decide whether my instructions were clear enough. I continue to think that all judges who initiate contempt proceedings should immediately ask to have the case reassigned to avoid any possible conflict of interest. Really, Judge Boasberg should be a witness in such a proceeding, rather than the deciding authority.

Second, under the EIGA, the three-judge panel decided who the independent counsel should be. And under the special counsel regulations, the Attorney General made that decision. The decision of who to appoint is foundational. Why did Merrick Garland appoint a war crimes prosecutor like Jack Smith to go after Trump, but appointed a mild-mannered former U.S. Attorney like Robert Hur to investigate Biden? Both cases involved alleged purloining of government documents. Why didn't Garland appoint the same official to investigate Biden and Trump? I think the question answers itself.

And in any event, it doesn't much matter who is appointed. Many men of integrity have been sullied by serving as independent counsels or special counsels. Justice Scalia was right in Morrison: when a prosecutor has only a single target, with no restrictions or accountability, he will stop at nothing to get his guy. Remember, Ken Starr, a well-regarded former federal judge, embarked on a modest investigation into President Clinton's business dealings. That case exploded to an inquisition about President Clinton's sex life, ultimately leading to an impeachment and a near-indictment. Robert Mueller, a well regarded former FBI director, started to investigate Trump's removal of Comey, but the investigation spiraled into a never-ending drip-drip-drip about obstruction and corruption. Trump was nearly impeached and indicted over Muellergate.

We all know how these sorts of special prosecutions wind up. Does anyone doubt that the special prosecutor will want to interview President Trump himself? If Trump refuses, would the District Court hold him in criminal contempt? Even if there is no violation found of Judge Boasberg's order, there will be a never-ending series of allegations based on "obstruction," the most malleable crime in federal law. I doubt all of these proceedings will uncover much useful information that we don't already know. But the collateral costs will be massive.

Third, there is a benefit to having judges unconnected with the controversy decide who the special prosecutor ought to be. The three-judge panel, appointed by the Chief Justice, were neutral, and had no role in adjudicating the actual matter. By contrast, Judge Boasberg cannot separate himself from this conflict. Yet, he can still decide who will be the next Inspector Javert.  Relatedly,  there is some value in having a three-judge panel make these decisions, rather than a unilateral judge. As Judge Ho's concurrence from yesterday explains, there is a big difference between a single-member court and a multi-member court.

Every level of the judiciary risks losing its credibility if judges fail to live up to these principles. But appellate courts have at least one built-in check: No appellate judge can act alone. Appellate courts act only through multi-member panels. So appellate judges must convince their colleagues before they can exercise the judicial power of the United States. District court decisions, by contrast, are (with rare exception) made by just one judge. District judges are the only members of the judiciary who can exercise the judicial power of the United States without anyone's consent but their own. With unilateral power, there's unique danger that some district courts may get off track. So it's vital that district judges exercise their powers carefully and with integrity—and critical that appellate judges be ready to intervene when district courts refuse to stay in their lane.

District Court judges have almost unlimited authority over their docket. Circuit judges have to persuade their colleagues.

Fourth, the EIGA and Reno regulations at least provided some mechanism for removal. Chief Justice Rehnquist cited the possibility of removal as a basis to uphold the EIGA. But is there any way to remove Judge Boasberg's special prosecutor? I don't think so. Short of mandamus by the D.C. Circuit or the Supreme Court, the special prosecutor can follow Trump to the ends of the earth.

Fifth, Judge Boasberg would sub silentio resurrect the EIGA. The history of the independent counsel statute is well known.  Republicans and Democrats agreed that the Independent Counsel statute was a mistake, and let it lapse. But who knew, all along, that Rule 42 permits a single district court judge to unilaterally install a truly independent counsel, subject to none of the restrictions under the EIGA? I realize the Supreme Court ducked the Rule 42 issue in the Donzinger case. Justice Gorsuch, and Judge Menashi (2nd Circuit) in dissent, were clearly right. That prosecution involved a private citizen. This was not a case where a special prosecutor is opening an investigation into the executive branch itself.

Sixth, at least in the Donziger case, the special prosecutor could ostensibly assert the authority of the United States in parallel to DOJ. But in the Boasberg case, the special prosecution would be asserting the sovereign authority of the United States in conflict with the Department of Justice. I see an analogy to United States v. Nixon. I remain convinced that Nixon was not justiciable because it was an intra-executive branch dispute. There was a conflict between the special prosecutor and the President. The courts had no business resolving that conflict. Here, Judge Boasberg is about do something far more problematic. He will be seizing the prosecutorial authority of the executive branch, delegating it to a private citizen, who will then prosecute the executive branch, all in the absence of clear statutory authorization. This sort of move makes anything Judges Reed O'Connor or Matthew Kacsmaryk did look like child's play.

The government's brief states the issue well:

The Executive Branch must itself prosecute, or face a court-appointed private prosecutor who would apparently exercise core executive powers of prosecution. And that private prosecutor would exercise those powers outside the President's or the Attorney General's control, all in service of a prosecution that the Executive Branch opposes. District courts cannot outsource prosecutorial power to private citizens, insulate them from Executive Branch control, and then unleash them against the Executive Branch.

Seventh, where will the budget come from for this special prosecutor? DOJ certainly will not give a penny. The lawyer cannot keep an office at Main Justice. Does the court have the budget to pay for this crusade? Or will the court order the government to divert funds for the lawyer and his team? Then again, there may be a line of attorneys who will gladly work pro bono to nail Trump.

Update: Judge Menashi's dissent discusses the funding issue. In Donzinger, the special prosecutor was paid from the judiciary's budget. He observed, "Providing judiciary-funded prosecutors to the executive branch creates tension with Congress's power of the purse."

Eighth, please do not forget about "officer stuff." In the Florida special counsel litigation, Seth Barrett Tillman and I argued that the special counsel was not an officer, but was at most an employee, and as an employee lacked the "significant authority," per Buckley, to bring a criminal indictment. (Our 11th Circuit brief in the since-mooted case is a good place to start.) In the past, DOJ has argued that court-appointed special prosecutors were employees. Thus, in our view, the special prosecutors could not exercise the "significant authority" to investigate and prosecute the executive branch, and perhaps the President himself. Remember, a court-appointed prosecutor would not be subject to the DOJ opinion on whether the President could be indicted. Alternatively, the special prosecutor position would be appointed for only a single purpose. This position would lack duration because it is not continuous. Therefore, it cannot be an "officer" of any type. The current qui tam case before the Eleventh Circuit just became far more important. I will probably write about that case soon.

Even assuming Morrison v. Olson is valid, what Judge Boasberg is doing is unconstitutional. Indeed, he is taking all of these steps after the Supreme Court ruled he lacks jurisdiction! Putting aside the venue issue, the absence of a cause of action is a jurisdictional defect. (Seth and I addressed this issue in our Emoluments Clause briefing at p. 8-9.) The Chief Justice gave Judge Boasberg an easy jurisdictional out: issue a grumbling opinion, but dismiss the contempt proceedings. Instead, the court seeks to push forward.

Going forward, the airplane case should no longer be known as J.G.G. v. Trump. It is better captioned as J.E.B. v. Trump, as Judge James E. Boasberg ("Jeb" for short) is going down a personal path against the Trump Administration. He will be the judge, jury, and executioner about the fate of the executive branch. Hell hath no fury like a scorned inferior court judge.

We are treading down a very dangerous path. I fear the judiciary will suffer the same fate of Ken Starr, Robert Mueller, and Jack Smith. None of this bodes well for the separation of powers.

The D.C. Circuit must intervene here. I know it was fashionable to dunk on the Fifth Circuit as this rogue right-wing court, but in candor, that court was never quite that conservative. There are many moderate members who can tip the en banc vote. The D.C. Circuit, by contrast, has an over-whelming liberal majority, and will have that majority for a generation. If the D.C. Circuit upholds this action, I will see it as no different than the new liberal majority on the Wisconsin Supreme Court that upheld a 400-year line item veto. A special prosecutor is not the way to deal with Trump.

Comments

[Joe_dallas]

Interesting question - What actions or non actions taken after the SC ruled he lacked jurisdiction are subject to contempt?

I can see an argument that actions or non actions occurring before the SC ruled he lacked jurisdiction would be subject to potential contempt procudures. But after the SC ruled he lacked jurisdiction seems to be more than the judge just pushing the envelope.

[tylertusta]

From what I've found, the general rule is that courts can continue contempt proceedings even if they later have the case dismissed for jurisdictional purposes.

But I'm also told it's not an absolute rule. Boasberg's finding of jurisdiction in his class TRO may be found to have been frivolous. He was in such a rush as to get an order out that he didn't give it more than a perfunctory consideration. That would be an offramp that SCOTUS may take.

[Joe_dallas]

Tyler - I can understand that the contempt proceedings may be valid for events occurring prior a higher court ruling the court lack jurisdiction, but the contempt proceedings appear to be related to events (or non events) occurring after the SC ruled he lacked jurisdiction.

[tylertusta]

The alleged noncompliance (not turning the planes around & the invocation of state secrets) occurred before the judge was told he didn't have jurisdiction.

[SMP0328]

The Supreme Court ruled Judge Boasberg lacked jurisdiction. That means he had no authority to impose any orders in this case. Yet, he wants to find the Trump Administration in contempt for not complying with the orders he lacked authority to impose. Trump shall not be permitted to defy Judge Boasberg, but his honor may defy the Supreme Court's decision regarding jurisdiction. That's some big ego you have there, your honor.

[A Japanese Student]

There was a court that had jurisdiction; I think it is within the judge's authority to preserve that jurisdiction. (Maybe the judge should have invoked 28 USC 1631 and let SDTX proceed with contempt? Not something I'm familiar with, however.)

[Bubba Jones]

It seems problematic that POTUS can play whack a mole with jurisdiction simply by moving the prisoner around.

And I love the idea of blaming the Judge for trying to get a TRO out before the planes took off.

This story illustrates why we can't rely on cops and prosecutors to uphold the constitution or even rudimentary ethics.

Akshually, I can avoid the constitution by labeling my oppression as something else.

[not guilty]

"There was a court that had jurisdiction; I think it is within the judge's authority to preserve that jurisdiction. (Maybe the judge should have invoked 28 USC 1631 and let SDTX proceed with contempt? Not something I'm familiar with, however.)"

Contempt jurisdiction lies with the court whose order has been contemned. Judge Boasberg can pursue criminal contempt against those who violated his orders before the Supreme Court vacated them.

[David Nieporent]

Yet, he wants to find the Trump Administration in contempt for not complying with the orders he lacked authority to impose.

It's almost as if there's caselaw directly on point on this issue!

[Riva]

Even outside of separation of powers concerns (which, let's be honest, are beyond you), the notion of contempt in this context is absurd. You won't understand but I'll throw you a bone with a brief comment from Margot Cleveland on the administration's motion to stay:

Introductory sentence really is nub of case & what Judge Boasberg, blinded with anger, ignored. Given a) no jurisdiction; b) no basis to certify class; c) SCOTUS vacated; and d) order was not clear, there was no sanctionable, willful contempt.

[not guilty]

Riva, have you read Walker v. City of Birmingham, 388 U.S. 307 (1967)?

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, at 314. 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.

SCOTUS long ago opined that:

"An injunction duly issuing out of a court of general jurisdiction with equity powers, upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming, but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished."
* * *
We insist upon the same duty of obedience where, as here, the subject matter of the suit, as well as the parties, was properly before the court; where the elements of federal jurisdiction were clearly shown; and where the authority of the court of first instance to issue an order ancillary to the main suit depended upon a statute, the scope and applicability of which were subject to substantial doubt. The District Court on November 29 affirmatively decided that the Norris-LaGuardia Act was of no force in this case and that injunctive relief was therefore authorized. Orders outstanding or issued after that date were to be obeyed until they expired or were set aside by appropriate proceedings, appellate or otherwise. Convictions for criminal contempt intervening before that time may stand.

United States v. United Mine Workers of America, 330 U.S. 258, 293-294 (1947) (footnote omitted), quoting Howat v. Kansas, 58 U.S. 181, 189, 190 (1922).

In Willy v. Coastal Corp., 503 U.S. 131 (1992), the Supreme Court reaffirmed U.S. v. UMW, opining:

A final determination of lack of subject-matter jurisdiction of a case in a federal court, of course, precludes further adjudication of it. But such a determination does not automatically wipe out all proceedings had in the district court at a time when the district court operated under the misapprehension that it had jurisdiction. . . .

In United States v. Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), we upheld a criminal contempt citation even on the assumption that the district court issuing the citation was without jurisdiction over the underlying action. In that case, the question was raised on direct review, and not collateral attack. We think the same concern expressed in these cases—the maintenance of orderly procedure, even in the wake of a jurisdiction ruling later found to be mistaken—justifies the conclusion that the [Fed.R.Civ.P. 11] sanction ordered here need not be upset.

503 U.S. at 137.

[Riva]

Are you aware that the contempt proceedings in the cases you cite did not involve the executive branch and are irrelevant to the grave separation of powers concerns in Boasberg’s travesty? And to note again, a) no jurisdiction; b) no basis to certify class; c) SCOTUS vacated; and d) order was not clear, there was no sanctionable, willful contempt. And finally, wtf?, try to be a little more brief, less is more, just for future reference.

[not guilty]

Still waiting, Riva. Have you read Walker or have you not read Walker?

Do you have a clue what the collateral bar doctrine is?

I promise it won't break your keyboard to tell the truth about that.

[Commenter_XY]

The alleged contempt here is for something not explicitly mentioned in Judge Boasberg's orders; the flights in the air. One need only comply with the actual written order, not mere oral admonition. Isn't that black letter law?

If it isn't in the written order, why the kerfuffle?

[David Nieporent]

One need only comply with the actual written order, not mere oral admonition. Isn't that black letter law?

No, it is not. Not at all, not even a little bit. At least unlike Brett you will admit you're wrong about the law after being told, but I wish you'd save us a step and stop making assertions that need to be corrected.

[Commenter_XY]

David, is there case law addressing the difference between oral admonitions from the court versus written orders from the court? I thought the judge had to specifically name what was covered and the legal rationale, under his written order. I look at that like I look at contracts...you go by what was written on paper.

[Riva]

Is there case law? It’s so basic it’s called black letter law. Crazy Dave probably thinks that means it’s racist. “Oral statements are not injunctions…[a] judge who proclaims’I enjoin you’ and does not follow up with an injunction [in writing] has done nothing” Bates v Johnson” 901 F2d 1424,1427 (7th Circuit 1990) and also a little thing called Rule 65(d) of the Federal Rules of Civil Procedure.

[David Nieporent]

the notion of contempt in this context is absurd.

It's almost as if there's caselaw directly on point on this issue!

[nonzenze]

The Court has routinely held the all orders from a court need to be complied with, even those that are later overturned (for whatever reason) on appeal. This isn't even remotely controversial

[Riva]

Nothing remotely questionable? Oral orders? Ambiguous oral orders against the executive branch that exceed the authority of the judicial branch? This lunatic democrat proclaims something from the bench, and even before a written order issues, the executive branch is supposed to kiss his ring and order a national security flight overseas to turn around? Regardless of nationality security concerns? Regardless of even how much fuel the plane had?

[Commenter_XY]

Is James Boasberg related to Alexandre de Moraes? One wonders.

[tylertusta]

Josh is whistling past the graveyard. The farce will continue.

[John F. Carr]

"I continue to think that all judges who initiate contempt proceedings should immediately ask to have the case reassigned to avoid any possible conflict of interest."

Isn't that standard practice for indirect contempt? Once the judge refers the case for prosecution it goes into the pool of cases to be assigned to a neutral judge. Sheriff Joe was not tried by the same judge who ordered him not to target Latino drivers.

[tylertusta]

I don't know the answer here. Maybe there's a district court rule?

Rule 42's only thing on it is: "If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents."

[MollyGodiva]

If EB officials commit crimes, there needs to be a way to prosecute them that the EB can not block. No where in the Constitution does it say the President has absolute authority to block federal criminal prosecutions, especially against his own subordinates.

A neutral three judge panel selecting the prosecutor is the way to go.

[rloquitur]

Sez you.

Here's something you may enjoy:
https://www.nationalreview.com/corner/attorney-general-bondis-claim-that-courts-have-ruled-that-abrego-garcia-is-a-member-of-ms-13/

[MollyGodiva]

That link has no relevance to my statement.

[Bubba Jones]

I dunno. I think it provides an example that proves the importance of what you seek. It shows how the EB can't be trusted to police itself.

I don't know if that was the intent of rloquitur.

[agarrett]

Well, there's Article II, "The executive Power shall be vested in a President of the United States of America." Prosecution is an executive power, so it comes under the President and he presumably has discretion on how to exercise it.

Now, you say there needs to be a way to prosecute them that the executive can't block. OK, one way is a constitutional amendment, changing the way the government manages prosecution - to be fair, there's basically no way to do this while Trump is still in office, but if it's a good idea, maybe try to convince people. Next way is for Congress to say the President is not taking care to execute the laws, and impeach him. Again, with the current GOP led congress, this is pretty unlikely, but if there's enough outcry, it's not impossible.

On the other hand, for a judge to just determine he can take on executive powers, well, that's not a way to do it.

[JoeFromtheBronx]

"Prosecution is an executive power"

Historically, prosecutions arose in a variety of ways.

[MollyGodiva]

Shhhhhh. Let the MAGAs get their lips orange and their tongue sore before hitting them with historical facts.

[Bubba Jones]

>there needs to be a way to prosecute them that the executive can't block

Presumably kidnapping someone and sending them to El Salvador is a violation of state law.

[A Japanese Student]

Or, granting grand juries the ability to prosecute sua sponte.

[Stephen Lathrop]

A Japanese Student — The notion to grant grand juries any particular power not already recognized implies some authority with legitimate capacity to do it. That would only be this nation's joint popular sovereign.

But on the other hand, since before the time of the founding, it had been part of customary grand jury practice to do just as you say, with a power known as, "presentment." At the time of the founding, that was explicitly recognized as an already-existing part of American common law, which the Constitution had blessed.

Presentment was a power used often in colonial America, augmenting the power of the grand jury to shield against injustice, with a sword in the hands of the grand jury to enforce justice. It was used along with another grand jury power now unheard of, to petition government on all manner of questions relating to governance. Those petitions were meant to be received by governors, and to be read with dual implications—on the one hand as entreaties from supplicants acting as subjects of government, but on the other hand as joint decrees from People acting with joint popular sovereignty, to remind government that the grand jury exercised a power greater than government's.

Although the practice of grand jury petition receded, the power of presentment continue to be exercised right into the 20th century. But it was also opposed, and hedged, and resisted, by the judicial establishment. The resistance started early, with Chief Justice Marshall, who opined against presentment, without quite saying it should never be used. Along the way, especially in the 20th century, legislation to suppress presentments got passed.

Later, parts of the controversy featured disputes over grand jury secrecy. A grand jury presentment against someone in government—possibly even a judge—would mean little if prosecutors and judges suppressed it, and the grand jurors themselves were forcibly silenced. Which happened.

There was a blow-up over that kind of thing in a 20th century case involving wrongdoing at the Rocky Mountain Arsenal, which made a mess while making plutonium components for nuclear weapons. During a lengthy grand jury investigation, the grand jurors lost faith in a federal prosecutor, and attempted to get around him with a presentment, which a judge tried to suppress using threats which invoked grand jurors' secrecy oaths. The controversy boiled into public view during Congressional hearings prompted apparently by leaks from the grand jury. In retrospect, it looks like a grand jury presentment over the Rocky Flats case did in a circuitous way affect public policy significantly.

I suggest now could be a time which calls for searching reconsideration of grand jury presentments, as means to defend American constitutionalism. There would be much to think about, not much time to do it, and heated partisan advocacy to contend with.

All of which, by centuries old custom, any particular grand jury could bypass, with a presentment to target any government figure, including even a Supreme Court Justice. But it seems evident, I think, that for that to make any difference, what happened next would have to include interventions by public demonstrations and assemblies such as this nation has rarely seen. The risk of violence that implies already exists, of course.

If today's Supreme Court is too pusillanimous to defend American Constitutionalism, or even if it is not, the American People will have to do the real work of defending, or fail trying.

Grand juries are tribunes of the People, not parts of any branch of government, nor under governance by any branch. They might have a role. The, "you," in Franklin's famous admonition, "A republic, if you can keep it," obviously referred to the People themselves, not to their governments.

[Rossami]

re: "there needs to be a way to prosecute them that the EB can not block"

There is - impeachment. Sounds like you want another way to prosecute. In some circumstances, that may be a reasonable request. Do you have a draft of the proposed constitutional amendment to implement it?

[SRG2]

No where in the Constitution does it say the President has absolute authority to block federal criminal prosecutions, especially against his own subordinates.

The president can pardon his subordinates thus voiding the prosecution. In principle an outraged Congress could impeach the president for such an action. As if.

[MollyGodiva]

This is what Trump should do. It is the simplest and most transparent option. He can clearly articulate who is getting pardoned and for what crime.

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

Knowing what we know, my guess is he's going to pick some Norm Eisen linked attorney, as while JEB is the face of La Resistance, Norm is the three-brain cells behind it.

[Bob from Ohio]

No, going to be a GOPer for sure.

My money is on Paul Clement, he has sided with the Resistance! twice this year already.

[Katall]

Josh is hell bent on allowing Trump make the constitution a suicide pact. No checks on the executive (so long as a democrat is nor in office).

[rloquitur]

Because he deported a bunch of criminals? Cry me a river. Where the fuck were you when Biden turned the DOJ into the Praetoriam Guard (the Ashley Biden diary prosecution).

And dude, Biden showered with adolescent Ashley. Yuck.

[David Nieporent]

Where the fuck were you when Biden turned the DOJ into the Praetoriam Guard (the Ashley Biden diary prosecution).

Yet another made up miscarriage of justice from the lunatic rloquitur! Where was he when Galileo was prosecuted for heresy!??!?!

[SRG2]

As the Praetorian Guard assassinated a fair number of emperors, this suggest at least a degree of independence.

Aside: Gibbon said that the precise point when the Roman Empire went into decline was when the Praetorian Guard replaced its large shields with smaller shields because the traditional ones were too heavy.

[wnoise]

To be clear, not the constitution, but Josh's weirdo interpretation of the constitution.

[not guilty]

Professor Blackman runs away like Usain Bolt from any mention/discussion of Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787 (1987), which is controlling authority directly on point:

Petitioners first contend 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. We disagree. While it is true that Federal Rule of Criminal Procedure 42(b) does not provide authorization for the appointment of a private attorney, 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.

Id., at 793 (emphasis added).

[rloquitur]

This judge is just such a bozo.

[ReaderY]

Sorry, Mr. Judges, but federal judges have the inherent power to enforce their orders when core constitutional rights and the rule of law is at stake.

Suppose Mr. Trump instructed the El Salvadorans to start building gas chambers and paid them to mass-slaughter his political enemies or a group he wanted to focus people’s hate on. Would you still be arguing that courts have no power to stop him? That he can do the nasty, whatever the nasty may be - mass murder, rape for sex tourism pleasure, vivesection, chopping up organs and body parts for medical-use sale - as long as the nasty itself takes place outside US territory? Because under your argument, he perfectly well could, and they’d have no power to stop him doing that either.

Given that Mr. Trump has taken a comparatively small but quite significant step in that direction, I think we’re passed the point of claiming courts are powerless to act.

I think Cooper v. Aaron is directly on point here. If officials constituting the executive government, federal or state, “wage war on the Constitution,” as the Cooper opinion put it, courts have the power to fight back. Yes this is currently a relatively small-scale skirmish and not full war. But if the probing reconnaissance forces are not turned back, every indication so far is that a much more massive and violent attack will follow.

[ReaderY]

Sorry, I meant Mr. Blackman. I had intended to erase only the honorific “Professor.”

[Sarcastr0]

If you'd leaned into 'Mr. Judges' being some deeply sarcastic insult, I'd have believed it.

[tylertusta]

What is the limit to judicial power to "fight back?" How far can courts go?

We can use your hypothetical: Trump himself ordered El Salvadorans to kill political enemies.

...can courts issue a TRO against a President?

[shawn_dude]

Rossami says the only solution is impeachment. So if the house majorities--in this case both Republican--think mass slaughter of Trump's enemies is a good idea, then there is apparently zero Constitutional recourse. Assuming, that is, that impeachment is the only solution.

I find that construct odd because if each branch of government is a check on the other, the judicial branch cannot be gelded like Blackman and Rossami believe it is.

[tylertusta]

I don't see why people are trying to elevate the judiciary to be something they cannot be. A President who is so lawless as to import foreigners to mass murder US citizens won't care about any TRO. A TRO is basically just a sternly-worded letter, so unless a judge physically tries to stop the murder I don't see how it's possible.

Judges cannot impeach and remove a President from office. They cannot raise armies. They cannot lead armies into battle nor can they appoint officers to run the military in their stead. They cannot tax, and they cannot raise funds to pay for the military that would be needed.

Those are the things that would have to happen to stop a recalcitrant, murderous President. There is no amount of "equitable jurisdiction" and "all writs" that allows the judiciary to assume the above roles while we remain the same nation that we were before. Courts would have to usurp all of the power in the federal government where judges would then become dictators.

[Commenter_XY]

Rossami is right that = impeachment is the only solution for the POTUS, absent assassination (and we know with certainty that there are people willing to try) or natural death from old age, if you want him out of office.

Look, an impeachable offense is only what a majority of the House agrees to. But you need 67 votes in the Senate to remove, that isn't happening.

[David Nieporent]

You overlook the 25th amendment, which is not very plausible either, but it would be weird to list assassination and not an actual legal method.

[Commenter_XY]

You're right David, 25A covers incapacitation, an oversight on my part on yet another way to legally remove POTUS Trump from office. The point is, there are plenty of ways for POTUS Trump to leave office if there is a consensus to do so. There just isn't one. And BTW, Senator Booker does not count as consensus. 😉

In the present circumstance, impeachment is the remedy, and Rossami got that right, IMO. These are people who should not be here, meaning TdA members. POTUS Trump was elected, in part, to address illegal immigration. He is. Rather inventively.

This case was forum shopped from the start, and SCOTUS said, Nuh Uh, LA has jurisdiction. To me, everything after that is moot; Boasberg (who, IMO, was a just FISA Court rubber stamp for the government for warrant-less surveillance of American citizens, like the rest of his colleagues on the FISA court) is out of the picture, his job is done. LA, take over.

As far as Judge Boasberg goes, I don't question his legal ability, he is, after all, a Fed dist court judge. I don't question his authority as a federal district court judge, either. I do question his objectivity and impartiality in this matter. And when I look at his lengthy judicial track record and career, coupled with his behavior now, that is enough for me. Better hand this over to another judge.

[Bob from Ohio]

Suppose Mr. Trump issue Order 66 and murdered all the Jedi Knights? Could a district judge enjoin that? Well, could he?

You have lost your hold on reality, I'm afraid.

[LawTalkingGuy]

This reply would be funny if we didn’t have actual historical examples of governments creating the legal and political infrastructure for extermination campaigns in an incredibly short period. Such that what was inconceivable one day became reality later.

[Bob from Ohio]

You too have lost your hold on reality, I'm afraid.

Only the Trump that exists in your head would launch an extermination campaign. Not the real Trump.

[LawTalkingGuy]

…why wouldn’t he?

[Bubba Jones]

Apparently it doesn't even have to leave the US. They just need to move them between Districts.

[shawn_dude]

Or to that one jurisdiction in Texas.

[SRG2]

federal judges have the inherent power to enforce their orders when core constitutional rights and the rule of law is at stake.

Except if Trump is president, in which case the fuhrerprinzip applies.

[Mark Leen]

Isn't Trump immune? Also, wouldn't he just issue pardons? Its not likely Congress is going to impeach and remove Trump over it. So isn't the most likely result that the matter goes nowhere?

[tylertusta]

Trump's probably immune, but there's no shortage of anti-Trump lawyers (the ones who disagree that immunity exists) that would love to go after Trump regardless of whatever SCOTUS says. There's no shortage to of the mischief that lawyers can create when they put their minds to it, especially when their default setting is "Trump is guilty until proven innocent, and the law allows me to go after Trump until I'm told it can't."

Trump could issue pardons, yes, which makes this whole thing silly.

[shawn_dude]

He's only immune in Federal court.

[Darwinnie]

TL;DR: judges shouldn’t hold anyone in the executive branch liable for criminal contempt when they defy the judge’s orders. It’s a political issue only. And since the AG is a political appointee and won’t indict, there’s nothing anyone should do about it.

[LawTalkingGuy]

Very interested in what JB will say in 2 years if the Democratic House lists defying court orders as a reason to impeach Trump.

[Bob from Ohio]

"what JB will say"

Why are they wasting their time?

[LawTalkingGuy]

He actually argued the second one was unconstitutional. So I assume he’ll argue that judge Kacsmaryck has the power to enjoin the House.

[tuphat]

Josh can't even get the name of the case right. It's "J.G.G.," not "J.E.B." Jeeze ...

[David Nieporent]

That's not him getting the case name wrong. That's him very very very mistakenly thinking he's being clever.

[tuphat]

Oh.

[oihOfosemaJ]

Why can't Pam Bondi take the referral, appoint a do nothing prosecutor whose only function is to identify who President Trump should pardon, Trump issues pardons, and prosecutor shuts down the office?

Since Bondi wouldn't be ignoring the request for a special prosecutor, Judge JEB is done with the matter once Bondi appoints her prosecutor.

[shawn_dude]

If I understand what the judge is doing correctly, Pam Bondi doesn't get to appoint this one; that's the big deal.

[oihOfosemaJ]

Rule 42. Criminal Contempt, Section (a)(2) reads:

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 judge "must request that the contempt be prosecuted by an attorney for the government." The only way around this is if "the interest of justice requires the appointment of another attorney." Even then, AG Bondi could appoint a prosecutor from outside the government.

I've not read or heard anyone say that the interest of justice applies here of that it empowers the court to appoint the prosecutor.

Only when the government declines the request of the court is the court then empowered to appoint its own prosecutor.

[not guilty]

Uh, Pam (Bottle) Blondie is herself a party Defendant in this lawsuit.

[Prairie State Prosecutor]

It is not clear at this time if Bondi will be party to the criminal contempt charges. Until the time it is clear that she will be a party, Bondi can either 1) make an appointment and let Judge Boasberg expend the time of energy to contest it, or 2) delegate the appointment decision to her subordinate who can make a similar decision.

It is clear that Judge Boasberg's opinion is at odds with and mixes up the language from FRCP Rule 42. Rule 42(2) states:
"(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."

Judge Boasberg's Memorandum Opinion states:

"If the Government “declines” or “the interest of justice requires,” the Court will “appoint another attorney to prosecute the contempt.”

This is not a quote from Rule 42, because Rule 42 says no such thing. It's clear from the text of Rule 42(a) the "the interest of justice requires" means that the government must appoint "another attorney", a different attorney than "an attorney for the government." It distinguished who may be appointed, not who makes the appointment.

"The court must request that the contempt be prosecuted by an attorney for the government." Judge Boasberg must make this request to the government to appoint a prosecutor for the government. It is mandatory. He cannot skip this step. The "interest of justice" requirement does not, repeat not, give the court (Judge Boasberg) the authority to "appoint another attorney to prosecute the contempt." The "interest of justice" consideration only affects who can be appointed, not who makes the appointment.

Only when "the government declines the request" is "the court" authorized to "appoint another attorney to prosecute the contempt."

On top of all this Trump does have pardon power, so it seems to me also that AG Bondi and DOJ hold all the cards here.

[ChristopherJLinas]

To me this comes down to one question: is prosecuting criminal contempt for violating an order of federal district court judge part of "the executive power" referenced in Article II? If so, then that power is vested in the president. Yes, it is unfortunate that a criminal president has prosecutorial discretion not to prosecute himself and his own co-conspirators. But unfortunate realities are still realities, and I think these contempt proceedings are going to get struck down for that reason. We have a system that enables the executive branch to violate the law with impunity so long as he has the audacity to do it and enough support in the congress to withstand a party line impeachment vote.

The other points about the judge's interest in the case, the jurisdictional defect in the underlying order, et cetera, are neither relevant nor persuasive to me.

[shawn_dude]

"We have a system that enables the executive branch to violate the law with impunity so long as he has the audacity to do it and enough support in the leverage against congress to withstand a party line impeachment vote." FTFY

[David Nieporent]

To me this comes down to one question: is prosecuting criminal contempt for violating an order of federal district court judge part of "the executive power" referenced in Article II? If so, then that power is vested in the president.

The Supreme Court has said that the power to prosecute criminal contempt for violating an order of a federal district court judge is part of the inherent power of the judiciary.

[Michael Ejercito]

It is not as if Jusge Boasberg actually has a problem with law enforcement forging evidence...

[Purple Martin]

Update:

Appeals court halts Boasberg’s contempt proceedings against Trump administration

A divided federal appeals court panel on Friday temporarily halted U.S. District Judge James Boasberg’s contempt proceedings against the Trump administration over its deportation flights to El Salvador last month.

The U.S. Court of Appeals for the D.C. Circuit indicated its order is intended to provide “sufficient opportunity” for the court to consider the government’s appeal and “should not be construed in any way as a ruling on the merits of that motion.”

But for now, it prevents Boasberg from moving ahead with his efforts to hold administration officials in contempt. The judge on Wednesday found probable cause for contempt, calling the government’s refusal to turn around the March 15 deportation flights “a willful disregard” for the court’s order.

The three-judge D.C. Circuit panel split 2-1. The two Trump appointees, Judges Gregory Katsas and Neomi Rao, ruled for the administration. Judge Cornelia Pillard, an appointee of former President Obama, dissented.

“In the absence of an appealable order or any clear and indisputable right to relief that would support mandamus, there is no ground for an administrative stay,” Pillard wrote in a brief explanation.
...
https://thehill.com/regulation/court-battles/5256814-appeals-court-boasberg-trump-contempt/

[wnoise]

John Ellis Bush?