“They are trying to intimidate, threaten and just run over the courts in ways that we have never seen,” said one retired federal judge, who, like about a half-dozen other former and current judges, spoke to CNN anonymously given the climate of harassment the Trump administration has created and the tradition of jurists not to comment publicly on politics and ongoing disputes.
How judges counter
The courts have tools to fight back — a lawyer in a courtroom who refuses a direct order or lies could be held in contempt on the spot. Judges also have the power to demand witness testimony and documents. They may also commission independent investigations and can make a criminal referral or levy civil penalties, like fines.
But so far, many judges have hesitated to move too quickly to levy sanctions or other punishments aimed at the Trump administration.
“The truth is we are at the mercy of the executive branch,” said one former federal appellate judge, adding that courts have fewer enforcement mechanisms than the White House, such as law enforcement and prosecutorial power. Sanctions situations also typically escalate slowly, and appeal opportunities for the Justice Department are ample and can take years.
“At the end of the day, courts are helpless,” the former judge added.
Some judges, like Boasberg in Washington, DC, and Judge Paula Xinis in Maryland, have already analyzed how they could respond to disobedience by moving toward sanctions or contempt proceedings for members of the Trump administration. In both judges’ courts, the administration has delayed following judicial orders when detainees were sent to a prison in El Salvador without the proper due process.
Courts also move slowly at times. In one Maryland case on Friday, lawyers for a Venezuelan man sent to El Salvador by the Trump administration told a judge they are still looking at whether they’ll ask the court to hold the administration in contempt. The administration actions happened in March.
“The more egregious the contemptible behavior, the more speedy the judge will probably move, and the heavier weapons they’ll use,” said another former federal judge, who sat on a trial-level district court bench. “Courts in general will see they need to move with speed and sharpness on this, if they’re going to get to the bottom of what happened,” the former judge added.
Trump gets help from his appointees
In some situations, Trump-appointed judges have slowed or stopped direct conflict between the administration and judges.
The Supreme Court, with its conservative majority, this year signed off in Trump’s favor on most emergency disputes over the use of his powers to reshape the federal government, undercutting standoffs.
But Trump’s appointees to the federal bench haven’t unilaterally refrained from questioning the executive’s approach.
For instance, in a case over the Trump administration stopping the payout of grant programs, a judge in Rhode Island on Friday chastised the Department of Housing and Urban Development for “inaction” as potentially a “serious violation of the Court’s order.” Nonprofit groups that received grants for affordable housing for low-income senior citizens had reported the administration hadn’t paid out $760 million in grants the court said it must months ago.
The judge, the Trump-appointee Mary McElroy in the Rhode Island US District Court, responded, “At risk of understatement, that is serious,” then invited the Trump administration to “explain itself.”
In Boasberg’s immigration case on Friday, a divided DC Circuit Court of Appeals with two Trump appointees in the majority ended a contempt proceeding that began three and a half months ago. The hold that had been over the case and the decision Friday have hurt Boasberg’s ability to gather evidence of suspected disobedience of Trump administration officials toward the court.
Judge Greg Katsas of the DC Circuit, a Trump appointee, wrote that stopping the criminal contempt proceeding could help defuse a long and messy standoff between the judiciary and the Trump administration.
Boasberg has already signaled some of his other options. “This Court will follow up,” he said at a hearing in late July, noting recent whistleblower revelations about Justice Department leadership’s approach to the case.
“In addition, whether or not I am ultimately permitted to go forward with the contempt proceedings, I will certainly be assessing whether government counsel’s conduct and veracity to the Court warrant a referral to state bars or our grievance committee which determines lawyers’ fitness to practice in our court,” the judge added in July.
In late June, a whistleblower publicly accused then-top Trump Justice Department official Emil Bove of telling attorneys they may need to ignore court orders like Boasberg’s and “consider telling the courts ‘f*** you,’” the whistleblower wrote to Congress.
Since then, Bove, a former defense attorney to Trump personally, was confirmed by the Republican-held Senate to become a judge himself. He now sits on the 3rd Circuit federal appeals court overseeing Pennsylvania, New Jersey and Delaware.
Bove told the Senate he couldn’t recall whether he made the comments about ignoring the courts.
Complaints
Boasberg has been one of the judges who’s been most criticized publicly by Trump and others in the president’s top circle. Boasberg decided in mid-March the administration couldn’t send detainees to El Salvador under a war-time act without due process and told the government to turn the airplanes around and bring the detainees back into US custody.
In July, the Justice Department formally complained about Boasberg to the appeals court above him, accusing him of judicial misconduct.
That complaint emerged after the conservative website the Federalist reported on comments Boasberg made at a private, annual meeting for leaders in the judicial branch — an incident separate from the immigration case he’s handled.
Boasberg and about a dozen other federal judges from around the country had an informal breakfast meeting with Roberts in early March, CNN has confirmed.
When Roberts asked the judges to share what was concerning their jurisdictions, Boasberg said the judges of the trial-level court in Washington, DC, over which he presides, had concerns the Trump administration might ignore court orders, and that would cause a constitutional crisis. Roberts responded without indicating his thoughts, a person familiar with the meeting told CNN. A Supreme Court spokesperson didn’t respond to a request for comment.
“Judge Boasberg attempted to improperly influence Chief Justice Roberts,” said the Justice Department’s complaint about the judge, sent to the chief of the appellate court above him. The administration maintains it never intentionally violated his orders in the immigration case, and that after Boasberg spoke to Roberts at the judicial conference, he “began acting on his preconceived belief that the Trump Administration would not follow court orders,” a reference to the immigration case proceeding.
Fears of a constitutional crisis
Steve Vladeck, Georgetown University law professor and CNN legal analyst, called the DOJ’s complaint against Boasberg preposterous in a recent analysis he wrote on Substack. Vladeck said that while the complaint is likely to be dismissed when a court reviews it — just as most misconduct complaints against judges are resolved — the Trump administration’s approach may have been intended more to intimidate other federal judges and play to the president’s base.
“None of these developments,” including the Boasberg complaint, “are a constitutional crisis unto themselves,” Vladeck told CNN. “But they all reflect efforts to undermine the power and prestige of the federal courts for if and when that day comes.”
“The problem is that too many people are waiting for a crossing-the-Rubicon moment, when what we’ve seen to date is the Trump administration finding lots of other ways to try to sneak into Rome,” Vladeck added.
However, several of the former and current judges who spoke to CNN thought the courts aren’t yet facing a full-blown constitutional crisis.
“We’re in the incipient stages of a constitutional crisis. We’re in the early stages,” one federal judge told CNN recently. “We’ve all been talking about it since the moment [Trump’s] been elected — that the administration could defy federal court orders.”
A full constitutional crisis, this judge said, would emerge if the administration disregarded Supreme Court orders. That hasn’t happened yet, and attorneys from the Justice Department are still engaging in many proceedings by meeting their deadlines and arguing in earnest at court hearings.
J. Harvie Wilkinson III, a long-serving, conservative judge appointed by Ronald Reagan on the 4th Circuit US Court of Appeals, pointed to presidential history in a recent opinion telling the Trump administration to follow court orders to facilitate the return of a Maryland immigrant, Kilmar Abrego Garcia, after he was mistakenly sent to El Salvador. Wilkinson wrote about President Dwight Eisenhower being willing to carry out the desegregation of schools following the Supreme Court decision in Brown v. Board of Education.
“The branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both,” Wilkinson wrote. “The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time with sign its epitaph.”
Suing the bench
Some of the Trump administration’s unusual attacks of the judiciary are still testing how far they could go.
The DOJ filed its complaint as the judges were gathering at the 4th Circuit’s conference in Charlotte, North Carolina, in late June. The judges from Maryland, North Carolina, South Carolina, Virginia and West Virginia were shocked when they heard of the lawsuit naming all Maryland federal district judges all as defendants, and the district court realized the need to swiftly hire a lawyer to defend them, people familiar with the response told CNN.
The Justice Department has said it sued as a way to rein in judicial overreach.
Defense attorney Paul Clement, on behalf of the Maryland judges, called the lawsuit “truly extraordinary” and “fundamentally incompatible with the separation of powers.”
Eleven former federal judges from various circuits, including some appointed by Republican presidents, warned in their own amicus brief in the case that if the Trump administration is allowed to carry its approach through “to its logical conclusion,” it would “run roughshod over any effort by the judiciary to preserve its jurisdiction that frustrates the Executive’s prerogatives. … That result would be devastating to the efficacy of the Nation’s courts.”
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