Dem
47
GOP
53
Donald Trump and his minions continue to spend a lot of time in court. And, as a result, the losses keep piling up. However, there is one case that is currently at the center of the Trump legal universe, namely the one that involves the flights to El Salvador, and is being overseen by Judge James Boasberg. Everyone's watching that case, because it's the one where the administration has come closest to open defiance.
That defiance continued yesterday, as the White House is not only failing to provide the information that Boasberg demanded, it is also peppering its filings with insulting language, accusing the judge of creating a "picayune dispute over the micromanagement of immaterial factfinding" and engaging in "unnecessary judicial fishing expeditions." To say this is out of the ordinary would be an understatement. And Boasberg is not pleased. He issued a brief order yesterday in which he characterized the information provided by the administration as "woefully insufficient" and laid out a strict calendar for compliance, with the first deadline arriving at 10:00 a.m. ET today.
There's no way to know how this will play out until it actually does, but Politico did speak with Shira Scheindlin, a retired federal judge who spent 22 years on the bench. Trump, of course, is beyond the reach of any judge, except the 100 judges in the Senate, roughly 53 of whom have no interest in exercising that power. However, the lawyers who are toting Trump's water are a different matter, and are definitely within reach.
If the folks who appear in Boasberg's court, or any other, do not abide by judicial orders, or perjure themselves, they could face criminal contempt proceedings. However, as Scheindlin points out, when we're talking federal court, responsibility for prosecuting such charges rests with AG Pam Bondi and the Department of Justice. Clearly, given how thoroughly Trump has corrupted the DoJ, that's a nonstarter. A judge could try to appoint a special prosecutor, but that opens many cans of worms, and probably wouldn't fly.
On the other hand, civil contempt is entirely possible. Civil contempt can be punished in three different ways. The first is jail time, which would certainly hurt those lawyers who end up behind bars, even if it's only for a few days or weeks. The second is fines, which can pile up quickly, and would probably hurt even more. And the third is referral to the bar for discipline, including loss of license, which would probably hurt the most. Truth be told, we've been a little surprised about how reckless some of the government's lawyers have been. Bar courts tend to be very unforgiving of professional misconduct, and Trump cannot pardon "I lost my Bar card."
Also worth keeping in mind is something we mentioned yesterday, but that is probably worth dwelling on a bit more: Chief Justice John Roberts' statement, in response to Republican calls for Boasberg to be impeached, that "For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose."
It's only two sentences (and that is indeed the entire statement), but it's a pretty clear warning to Trump and his underlings not to push their luck. Roberts rarely speaks out like this (and the last time he did it, it was also a warning to Trump in response to his attacks on the judiciary, back in 2018). He also has very little patience with attacks on the judicial branch, and has made his views clear in both his rulings and his annual addresses on the state of the judiciary.
And in Boasberg—obviously, not by choice—Team Trump has ended up with a particularly lousy target for their shenanigans. First, he's a veteran jurist with a stellar résumé. Second, he was appointed to various levels of the judiciary by both George W. Bush (first appointment) and Barack Obama (second appointment), so it can hardly be claimed he's a radical leftist. Third, Roberts has been an admirer for years, and has appointed Boasberg to several special posts, most obviously chief judge of the Foreign Intelligence Surveillance Court. And finally, the icing on the cake, as it were: Boasberg's college roommate was... Brett Kavanaugh.
The White House has most certainly been attempting to create the ridiculous narrative/precedent that the only court decision that actually "counts" is one from the Supreme Court. And the administration is making that argument, in part, because it buys them time to ignore lower courts and, in part, because they like their odds with a 6-3 conservative Court. But if Trump and his acolytes decide to take their battle with Boasberg all the way to the top, they are likely to find at least two conservative justices who are decidedly unfriendly to the administration's case. (Z)