How Courts can get Trump to Obey the Law: A Primer

By Spencer Klein and Norm Eisen

The government’s apparent refusal to follow court orders in multiple cases has set the judicial and executive branches on a collision course and threatens a constitutional crisis. In one case that is receiving national attention, Abrego Garcia v. Noem, the government has refused to bring back a father of three who was unlawfully deported to a Salvadoran prison, in defiance of a court order mandating it do so. In another, the government continued to fly planes filled with Venezuelan migrants to El Salvador, in defiance of a court order instructing it to halt the flights hours earlier. The latter case, JGG v. Trump, came to a head Wednesday when the presiding judge found probable cause that the government willfully violated his orders, setting in motion a process that could result in the government being held in criminal contempt.

These two landmark cases illustrate steps courts could take to force the government to follow its orders.

Kilmar Abrego Garcia was arrested and deported by ICE, due to what the Department of Justice called an “administrative error,” and despite a 2019 immigration court order protecting him. Earlier this month, Judge Paula Xinis of the United States District Court for the District of Maryland ordered the government to bring Abrego Garcia back to the United States. Last week, the U.S. Supreme Court upheld Judge Xinis’s order, finding that it required the government to “facilitate” his release and return, but directed the district court to clarify how the government should do so.

Just this evening, the Fourth Circuit Court of Appeals stated that “‘facilitate’ is an active verb,” therefore the Supreme Court decision requires the government to take affirmative steps to secure his return. So far, the government has not taken any action to comply and has hinted that it might ignore Judge Xinis’s order altogether. At a hearing on April 15, Judge Xinis chastised the government for doing “nothing” to follow the order. She gave the plaintiffs two weeks to gather evidence that showed any steps the government had taken to comply with the court’s order. If the evidence fails to do so, the question becomes what the court or plaintiffs can do to enforce the court’s directive.

There are several ways to compel the government to comply with Judge Xinis’s order:

Civil Contempt

Civil contempt is one effective remedy available to the court to address noncompliance. A federal court possesses inherent power to enforce its orders. This power allows the court to impose penalties on parties to make them comply with its orders through civil contempt. Under its civil contempt authority, a court may impose fines or even order the imprisonment of noncompliant parties until they abide by the court’s directive.

The Abrego Garcia proceedings are moving swiftly in the direction of civil contempt. On April 12, attorneys for Abrego Garcia asked Judge Xinis to issue an order requiring the government to explain why it should not be held in contempt. While the court has not acted on this motion yet, it indicated an openness to considering it during Tuesday’s hearing. The court has also ordered an investigation into whether the government willfully violated its order. Expect to hear in the next two weeks about depositions, demands for government documents, and assertions by the government that its materials cannot be divulged because of different types of privilege.

Criminal Contempt

In the JGG case, the court has already started down the road of criminal contempt. The purpose of criminal contempt is different from civil contempt. While civil contempt aims to coerce a party to follow a specific court order, criminal contempt seeks to punish willful violations of a court’s order. A party can still face criminal contempt, even if it brings itself into compliance. Criminal contempt is much more difficult to obtain than its civil counterpart. Like other criminal charges, it requires a trial by jury. It also requires a prosecutor. As the government is the offending party, this becomes a bit complicated. However, courts have appointed private attorneys to press the case for criminal contempt when the government refuses to prosecute. In his opinion issued on Wednesday, Judge Boasberg suggested he may take this course.

In the Abrego Garcia case, the court’s primary goal is to enforce its order and ensure Abrego Garcia's return, making this form of contempt less likely, at least at the moment. However, criminal contempt can be a potent tool when a court aims to remedy past defiance. This is likely why Judge Boasberg opted for criminal contempt: after the government had defied his order, the Supreme Court struck the order down, citing a procedural defect. But there remains the apparent willful violation of the order while it was in place. Judge Boasberg based his contempt finding on that previous violation.

Sanctions

Another potential response to noncompliance with a court order is sanctions under Rule 11 of the Federal Rules of Civil Procedure. Under Rule 11, any filing an attorney makes with the court must be supported by fact and law. The consequence for submitting a frivolous, false, or legally unsupported statement to the court is sanctions. These can take many forms, including fines, referral to disciplinary authorities, and even effectively deciding the case in the other side’s favor (known as “death penalty” sanctions).

In this case, there are no indications yet that the plaintiffs will seek sanctions. However, it remains a distinct possibility: for instance, if plaintiffs discover that the government has not been candid about its ability to request Abrego Garcia’s return under its contract with El Salvador, the court may seek to impose sanctions for submitting a false filing.

Bar Complaints

Another option is available not just to plaintiffs, but any member of the public: a complaint with a state bar. In order to appear in court or practice law in a state, an attorney must be admitted to practice there (or be supervised by an admitted attorney). As a condition of maintaining a legal license, attorneys must comply with a state’s rules of professional conduct, which are enforced by the bar. Upon a complaint from a client, other attorney, or member of the public, a state bar may initiate an investigation, make factual findings, and issue sanctions. The most severe of these sanctions is disbarment. Unsurprisingly, attorneys seek to avoid this punishment at all costs.

The Maryland Rules of Professional Conduct, to take one example, contain several rules that may be implicated by the behavior of government attorneys in the Abrego Garcia case. The threat of sanctions from a state bar might convince government attorneys to either ensure compliance with a court’s order or withdraw from the case.

The government’s disregard for the court’s order in Abrego Garcia v. Noem is a clear and present danger to our nation’s carefully constructed system of checks and balances. The court, litigants, and members of the public may use civil contempt, Rule 11 sanctions, and bar complaints to restore the proper balance, but we are left with no guarantee as to how the executive branch will react. In a direct and chilling conclusion, the Fourth Circuit acknowledged the “incipient crisis” and wrote, “We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.” The outcome of this interaction, whatever it is, will have serious consequences for a bedrock safeguard under our constitution: the assurance that when the judiciary issues an order, the executive will follow it.

Check back in with The Contrarian next week to learn about the JGG case in more detail, specifically how criminal contempt proceedings might progress in that case.

Norman Eisen is the Publisher of The Contrarian

Spencer Klein is a voting rights attorney and Senior Legal Advisor at State Democracy Defenders Fund. Make sure to stay connected with Spencer on X and Bluesky