The Contempt Power, the Pardon Power, and the Rule of Law

Over the last eight and a half weeks I have trained my analysis on specific parts of the massive assault on decency and democracy this Regime has unleashed. There is no shortage of commentators seeking to define this crisis in more sweeping terms so providing analysis focused on specific questions has seemed a more valuable contribution. We may now be approaching a point where these modes of analysis are not easily separable. The Regime appears to have willfully violated the order of a federal court in the ongoing dispute over its extraordinary rendition without any due process of men alleged to be Venezuelan gang members. Chief Judge Boasberg of the U.S. District Court for the District of Columbia has held hearings and issued successive orders to determine exactly how events unfolded and what sanctions he must consider. It is possible this dispute will grow into an acute crisis between the Executive and Judicial Branches of the U.S. government that could include a collision between the contempt powers of the federal courts and the pardon power of the presidency. I emphasize the word possible. Many commentators have been quick to announce that a defining rule-of-law crisis is upon us. I am less certain, but I am very concerned. In the days and weeks ahead it will be important to understand how the respective powers of the judiciary and the executive operate in this situation and the implications of a clash between those branches for the rule of law. I offer a primer on some of those issues here.

A tl/dr on what follows: Federal courts have powers and tools with which they can enforce their authority and require compliance with their orders. Those tools operate independently of the Executive Branch in some important respects but could also be thwarted by a hostile President in others. If a true clash of authority occurs between this Regime and the Judicial Branch, the federal courts will have to act strategically to put abuses of power by the Regime on clear public display while using the tools they have available to preserve their own authority.

The Contempt Power — Civil vs. Criminal

The contempt power is the most direct coercive tool federal courts can employ to secure compliance with their orders and enforce their authority. Contempt sanctions come in two forms: civil contempt and criminal contempt. The distinction has nothing to do with the nature of the case a judge is hearing: criminal contempt is equally available in a civil proceeding and vice versa. Instead these terms speak to the nature and purpose of the judicial sanction.

The purpose of civil contempt sanctions is to bring a violator into compliance with a court’s order. Consider a discovery dispute in which a person is asked to give testimony. The person refuses, the party seeking the information secures an order from the court to compel their testimony, and the person nonetheless continues in their refusal. At that point the person probably stands in violation of the court’s order and the court can employ civil contempt sanctions to secure their compliance. Sanctions for civil contempt can range from the imposition of disadvantages within the lawsuit itself—losing the chance to contest a factual issue for which you refuse to provide evidence, for example—to more forceful sanctions like a monetary fine for every day the contemnor continues in their refusal or even imprisonment in a federal holding facility. This scenario is a familiar one in cases involving journalists who are ordered to disclose a confidential source. The fact that temporary imprisonment can sometimes be used to secure compliance with a court’s order does not change the fact that the contempt sanction is civil in nature.

The defining limitation on a civil contempt sanction is that it can only continue for as long as the court’s order is being violated. If a party comes into compliance with the order the sanction will be lifted — the journalist can get out of the holding cell by giving up her confidential source — and if the court’s order ends, either because the court chooses to lift the order or it expires by its own terms, then contempt sanctions no longer serve a purpose and must likewise end. Civil contempt sanctions do help to enforce and defend the court’s authority but their immediate purpose is to secure compliance with a court order for the benefit of parties to the litigation.

The defining feature of criminal contempt, in contrast, is punishment. Like civil contempt, criminal contempt can involve fines or imprisonment and indeed often does, but it is a very different tool. Criminal contempt is reserved for situations in which a person does not merely stand in violation of a court’s order but has committed a flagrant and outrageous violation or series of violations or otherwise has engaged in behavior that constitutes a severe affront to the court’s authority. When a court determines that a sanction of criminal contempt is required, the purpose of the sanction is to punish that flagrant violation, vindicate the court’s authority and deter future wrongdoing. Unlike in civil contempt, a violator cannot avoid or end a sanction by coming into compliance with the court’s original order and the purpose of a criminal contempt sanction does not end when the underlying order expires.

Because criminal contempt is punishment, it mobilizes all the due process requirements of any criminal sanction including proof of guilt beyond a reasonable doubt and the right of trial by jury, though a federal statute now limits criminal contempt sanctions in most cases to six months imprisonment or $1,000 fine and where those limits apply the right to a jury trial does not attach. Even in cases where there is no jury, however, a conviction for contempt carries all the obloquy and potential impacts on one’s civic status that a criminal record entails.

The Pardon Power

Article II, Section 2 of the Constitution gives a sitting president “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” “Offenses” means crimes and “against the United States” means federal crimes. The Pardon Power has been defined and used very broadly. Presidents can issue mass pardons, as Andrew Johnson did in successive iterations to forgive Confederates who attacked the United States during the Civil War and as the current occupant of the office did for people who attacked the United States at the Capitol on January 6, 2021. A President need not wait until a person has been convicted or even indicted in order to issue a pardon; in that sense presidential pardons can operate preemptively. A President can only pardon past conduct, however: there are no prospective get-out-of-jail-free cards.

A pardon must be accepted in order to become effective; a person can decline the offer of executive grace. Once a pardon is accepted, however, it is absolute. In the rare cases when there is some question about whether a pardon actually issued or was accepted a court will treat that question as a matter of evidence and determine the facts as best if can, but pardons once accepted cannot be revoked or nullified. As the Court has put it, “The Executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.”

Can a President Pardon a Federal Crime of Contempt?

Yes. The Supreme Court issued a square holding to that effect a hundred years ago in a case called Ex Parte Grossman. Indeed the current occupant of the office did exactly that early in his first term on behalf of Joe Arpaio, the former Sheriff of Maricopa County, Arizona and serial abuser of Latino people. On July 31, 2017 Arpaio was convicted of criminal contempt for engaging in multiple serious violations of a federal court order by illegally detaining immigrants who lacked regular status, a practice he had been forbidden to continue. Within less than four weeks Mr. T***p issued Arpaio a full pardon for that conviction “and any other offenses under [the federal courts’ contempt authority] that might arise, or be charged, in connection with” his case. That pardon was an insult to the integrity of the federal courts but at the time it was largely viewed as a one-off, more corrupt assistance to a like-minded thug than part of a systematic assault on the rule of law.

Could the current occupant of the presidency start serially pardoning anyone in his administration whom federal courts determine must answer to criminal contempt charges for their defiance of judicial orders? Yes, he probably could. The Arpaio pardon provides an unfortunate template for that kind of abuse of the pardon power. Mr. T***p could make it clear that he will employ the pardon power to insulate any attorney or executive official from criminal accountability for ignoring, subverting and violating the orders of federal courts. Such an abuse of power would clearly be an impeachable offense but only Congress could impose that consequence.

Can a President use the Pardon Power to Nullify Civil Contempt Sanctions?

No, he cannot. The Supreme Court spoke to that issue in Ex Parte Grossman where its holding that a presidential pardon can nullify a criminal contempt depended on the key distinction between the nature and purpose of criminal and civil contempt as coercive tools: “For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts the sentence is punitive in the public interest to vindicate the authority of the Court and to deter other like derelictions.”

Who Prosecutes a Federal Criminal Contempt Proceeding?

Federal prosecutions are almost always carried out by members of the Executive Branch who report to Cabinet-level officials under the umbrella of the President’s authority. Prosecuting crime is a core executive function. On the rare occasions when a statute or regulation has authorized the creation of a special prosecutor who is less directly accountable to senior executive officials, that reallocation of authority has occasioned sharp disagreement about whether the Appointments and Vesting Clauses of Article II or general separation of powers principles are violated.

Prosecution of criminal contempt, however, stands as a singular exception to this proposition. In a series of cases extending back to the early decades of the Republic the Court has held that federal courts possess inherent power to impose and prosecute contempts against their authority. That power is not and cannot be dependent on the Executive Branch. While cooperation with the executive is the norm in prosecuting criminal contempt, the Court made clear in the 1987 case of Young v. United States ex rel Vuitton that “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.” That proposition is now written into Federal Rule of Criminal Procedure 42, which authorizes federal courts to appoint attorneys from outside the federal government to prosecute criminal contempts if the government declines to take up the prosecution or if the interest of justice otherwise requires. Of particular note, the late Justice Antonin Scalia—who famously dissented in the 1988 case of Morrison v. Olson when the Court upheld the creation of a special prosecutor that Scalia believed was too independent from the Executive Branch—joined the Court’s ringing affirmation in Young of the power of federal courts to prosecute criminal contempt without relying on the Executive.

Could a Federal Court Enforce a Criminal Contempt Conviction Against a Hostile Executive?

The short answer is no, not if the Executive Branch were determined to thwart that enforcement. Under normal conditions, when the rare case arises in which a federal court must consider criminal contempt proceedings against officials of the U.S. government we expect the government to respect the results of that lawful process. In the current crisis, we must confront the likelihood that the man who currently occupies the presidency would use the pardon power to thwart any effort to hold executive officials and lawyers accountable through use of the criminal contempt power just as he pardoned the 2017 contempt conviction of Joe Arpaio. In this circumstance he would probably act before the federal court even initiates the prosecution and use pardons to preemptively shield subordinates whose actions the federal courts identify as flagrantly contemptuous. Presidents do have that power. If it comes to that, the Supreme Court could distinguish Ex Parte Grossman and find that serial abuse of presidential pardons aimed at subverting the authority of the judiciary constitutes a violation of the separation of powers, even when isolated uses of that power do not. I would support that argument. But the Court would have to distinguish and limit precedent that currently appears to give a rogue President that authority.

What is more, coercive actions that involve laying hands on people—arrest, forcing someone to be present in court, security, imprisonment—are carried out by the U.S. Marshal Service and the Federal Bureau of Prisons which are both bureaus within the Department of Justice. A federal court can appoint a non-government attorney to prosecute a contempt but it has no authority to outsource these kinds of law enforcement tasks, or at least no power that has ever before been recognized. If the Regime were willing to adopt a posture of radical hostility toward the Judiciary, the Attorney General could instruct U.S. marshals not to follow the instructions of federal courts in such cases and instruct the Bureau of Prisons not to hold convicted contemnors.

So What Should the Federal Courts Do?

If federal courts confront a crisis of this magnitude, they have a range of tools they can attempt to use in defense of the rule of law.

• Where appropriate, federal judges can initiate a criminal contempt proceeding using their authority under the Federal Rules of Criminal Procedure to appoint an attorney from outside the government to prosecute the contempt. If Mr. T***p responds with profligate uses of the pardon power to shield his subordinates from accountability, that will create a public record of open abuse of power that can have political consequences.

• Federal judges can employ civil contempt sanctions to attempt to secure compliance with their orders. The pardon power cannot prevent civil contempt. Nonetheless, judges in this position will still confront limitations. The sanction of imprisonment in a civil contempt proceeding requires the cooperation of U.S. marshals who may find themselves being ordered to withhold that assistance in a full-blown stand-off between the branches. But judges have other civil contempt tools that are not dependent on U.S. marshals and can still have an impact, including the imposition of adverse consequences in an ongoing lawsuit that would complicate or impede the government’s efforts to accomplish its goals. A hostile Executive Branch will either have to figure out how to continue working with the courts in such cases or else circumvent the courts entirely, which once again will place abuses of power on conspicuous public display.

• More broadly, if the Executive adopts a position of ongoing hostility toward the authority of the Judicial Branch in high-profile cases, it may find that the judiciary will take that conduct into account in every type of proceeding, not just the specific cases in which the Executive defies the court’s authority. The government may no longer enjoy any benefit of the doubt for its good faith or veracity in the myriad circumstances where judges decide how to administer ordinary criminal and civil disputes. If the Executive requests injunctive relief or seeks sanctions against private litigants, for example, the judiciary may find that the government comes to all such request with unclean hands so long as it continues in its defiance of judicial authority. There is frequently no lawful alternative to the courts when seeking to do the daily business of governance. An Executive that sets itself on a course of open hostility toward the Judiciary may discover that it cannot get very much done.

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Mapping out these scenarios is a sobering exercise but a necessary one. The crisis we face will not be solved by law alone, but law remains a vital tool. If the Regime provokes a direct confrontation with the authority of the Judicial Branch, the ultimate resolution of that confrontation will lie with the political branches and The People but the judiciary can help set the terms of that contest with the actions it takes in the weeks and months ahead.