Federal judges are still treating the Trump administration like a good-faith litigant, and that has to stop. The administration doesn’t believe it has to follow court orders it doesn’t like and keeps figuring out ways to avoid complying.
The most brazen defiance so far happened over the weekendafter Trump invoked the Alien Enemies Act of 1978 to deport more than 200 Venezuelans he claims are gang members of Aragua train. At an emergency hearing on Saturday, U.S. District Judge James Boasberg blocked the deportations. Department of Justice lawyers told the court that two planes were already in the air. Boasberg verbally ordered the administration to turn those planes around. They did not.
The lack of consequences thus far is likely partly why DOJ attorneys felt comfortable telling Judge Boasberg to pound sand during a Monday hearing. Well, first, they tried to get Boasberg thrown off the case and the hearing canceled. Now Trump is calling for Boasberg to be impeached.
When that didn’t work, the DOJ attorney who appeared at the hearing, Abhishek Kambli, refused to answer questions about the flights, invoking national security concerns. Kambli also said the administration believed they had complied with the order because the order to turn the planes around was issued verbally and didn’t appear in the written order issued later, and they only needed to comply with the written one.
The administration is really leaning into this. White House press secretary Karoline Leavitt said“There’s actually questions about whether a verbal order carries the same weight as a written order, and our lawyers are determined to ask and answer those questions in court.”
There are, literally, no questions about this, and it doesn’t take a big DOJ lawyer brain to see why. If verbal orders had no force, there would be no point in judges ruling from the bench, which is necessary in cases where timing is urgent.
On Monday, Boasberg characterized the administration’s position as “we don’t care, we’ll do what we want.” The administration isn’t doing anything to dispel that.
Trump’s border czar, Tom Homan, told Fox“We’re not stopping. I don’t care what the judges think.“ Stephen Miller told ABC that no district court judge has authority over the president regarding “the expulsion of terrorists from our soil.”
It’s wrongheaded to continue debating things like what timeexactly, the planes to El Salvador were in the air to determine whether the administration openly defied a court order. That sort of benefit of the doubt might be warranted if administration officials weren’t doing TV hits bragging that judges can’t stop them. Or if this was the first time they appeared to ignore a court order, which it’s not.
Last month, U.S. District Judge Amir H. Ali ordered the administration to restore United States Agency for International Development funding, and it just didn’t. The plaintiffs went back to court to get Ali to basically reissue the same order, but Ali still declined to hold administration officials in contempt.
The administration also refused to follow U.S. District Judge John McConnell’s order to unfreeze billions in federal spending. In defending the refusal, the DOJ argued McConnell’s order covered only one spending freeze, not funds frozen under different memos. McConnell said his order was “clear and unambiguous,” and though McConnell said the administration defied his order, he didn’t impose penalties.
The administration also engages in courtroom tactics that no other litigant could get away with, like refusing to say who heads Department of Government Efficiency, designed to stall litigation holding Elon Musk and DOGE responsible. DOJ attorneys also pulled a stunt in the Climate United lawsuit over the administration’s freezing of climate groups‘ bank accounts.
Climate United moved for a temporary restraining order requiring the funds be released. DOJ attorneys asked plaintiffs’ counsel for a 24-hour extension, moving the hearing from March 11 to March 12, and moving the administration’s filing deadline back. This is common, and it’s generally expected that opposing counsel agree, which is what Climate United’s lawyers did.
Then, on the night of March 11, the administration terminated Climate United’s funding under a different provision and then argued on March 12 that the request for a TRO was now moot because Climate United no longer had any funding to unfreeze.
What can be done about this? To put it bluntly, judges must start treating the administration and its attorneys like anyone else who consistently refuses to follow court orders.
First, federal judges can hold parties in civil or criminal contempt. Civil contempt isn’t about punishment, but about forcing a party to comply with an order or certain conditions. Courts can impose fines or even jail timebut once a party complies, civil contempt ends. Criminal contempt punishes someone for disobeying court orders, but it’s a nonstarter here because the president has complete pardon authority and could pardon anyone charged.
Civil contempt is another story. During Trump’s first term, Education Secretary Betsy DeVos was held in contempt and fined after violating a court order to stop the collection of certain student loans. In 2003, the Environmental Protection Agency was held in contempt when it failed to comply with an order about record preservation.
DOJ attorneys can be held in contempt, too. In 2009, U.S. District Judge Emmet Sullivan found federal prosecutors in contempt after they ignored his order setting a deadline to produce documents. At the hearing, Sullivan yelled, “That was a court order. That wasn’t a request. I didn’t ask for them out of the kindness of your hearts. … Isn’t the Department of Justice taking court orders seriously these days?”
Courts can also sanction DOJ attorneys under Rule 11. When lawyers sign legal filings, they certify their arguments are being brought in good faith, and the filing is not for an improper purpose like harassment. Generally, an opposing party moves for sanctions, but judges can impose sanctions without a motion.
Federal courts have previously ruled that government attorneys can be sanctioned under Rule 11. Those sanctions are usually monetary but can only be levied against attorneys, not their clients.
Finally, federal courts can also require any attorney, including government lawyers, to pay excess costs and attorney fees if they “unreasonably and vexatiously” file bad-faith motions or abuse the judicial process. This can’t be used until later in the litigation process, however, as it requires showing the behavior significantly lengthened the proceedings. Contempt and Rule 11 sanctions, though, can happen anytime.
Judges can—and should—refuse to grant the relief the administration requests when they haven’t acted in good faith. That’s what U.S. District Judge William Alsup did in denying the request to stay his order reinstating thousands of probationary employees.
The administration relied on a sworn declaration of Charles Ezell, acting head of the Office of Personnel Management, for their assertion that individual agencies, not OPM, ordered the firings. When Alsup required Ezell to appear to answer questions under oath, the administration withdrew the declaration so he wouldn’t have to.
That declaration was the only support for the administration’s argument. But when demanding a stay, the administration suddenly had six declarations from agency officials it had never previously produced.
If a judge does finally impose any sort of penalty, the Trump administration will inevitably race to the friendly confines of the United States Supreme Court to get them to undo it. That Court has ruled, though, that federal courts have inherent power to impose contempt for “disobedience to the orders of the Judiciary.”
Right now, federal courts are sending the message that court orders don’t really mean anything if the Trump administration thinks they don’t. There’s no reason to treat the government, the most powerful litigant in the country and one with boundless resources and thousands of attorneys, with kid gloves. The administration knows full well what it’s doing, and what it’s doing is mocking the authority of the federal courts. The federal courts should stop helping them.
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