The Trump Administration has followed some court orders and outright refused to follow others. The judges overseeing those cases have shown remarkable restraint when the Administration appears to defy the orders: giving the DOJ lawyers appearing before them several chances to bring their clients into compliance, offering extra time to do so, requiring updates on compliance efforts, giving the other side discovery into those efforts, and so forth.
This Administration plans to ignore court orders that it doesn’t like unless the Supreme Court directly orders otherwise.
As Rodgers and Hammerstein famously said, “how do you solve a problem like Maria the Administration refusing to follow valid court orders?”
The harshest penalty available is criminal contempt. But even that penalty could ultimately require executive branch participation.
Obeying court orders is important
Let’s start with the basics: it is important that everyone, including federal officials, follows court orders. Otherwise, “things fall apart; the centre cannot hold; mere anarchy is loosed upon the world” (with thanks to W.B. Yeats).
Judge Boasberg used slightly more legal terms in his J.G.G. v. Trump opinion, explaining that “it is a foundational legal precept that every judicial order ‘must be obeyed’ — no matter how ‘erroneous’ it ‘may be’ — until a court reverses it.” 2025 WL 1119481, at *1 (D.D.C. Apr. 16, 2025) (quoting Walker v. City of Birmingham, 388 U.S. 307, 314 (1967)). He went on to say that “[i]f a party chooses to disobey the order — rather than wait for it to be reversed through the judicial process — such disobedience is punishable as contempt.” Id. Quoting Walker again, he said that this “rule ‘reflects a belief that in the fair administration of justice no man can be judge in his own case,’ no matter how ‘exalted his station’ or ‘righteous his motives.’” Id. (quoting 388 U.S. at 320–21).
Way back in 1809 (when James Madison was President) the Supreme Court held that government officials may not willfully disobey court orders. To permit officials to freely “annul the judgments of the courts of the United States” would not just “destroy the rights acquired under those judgments”; it would make “a solemn mockery” of “the constitution itself.” United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809) (Marshall, C.J.). “So fatal a result must be deprecated by all.” Id.
There is a commonsense basis for this precedent. The federal courts do not have a police force ready to carry out their orders. In normal circumstances, they depend on the executive branch to do so. President Eisenhower ordered the Arkansas National Guard to enforce court orders to desegregate schools in the 1950s.
[Credit to Everett Collection Historical/Alamy Stock photo]
What is the standard to hold someone in criminal contempt?
In the Judiciary Act of 1789 (when George Washington was President), Congress conferred on federal courts the power “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” 1 Stat. 83.
The power in the Judiciary Act is now codified in 18 U.S.C. § 401, which provides:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as–
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
To be held in criminal contempt, it must be shown beyond a reasonable doubt:
(1) that the court order was “clear and reasonably specific”;
(2) “that the defendant violated the order”; and
(3) “that the violation was willful.”
United States v. Young, 107 F.3d 903, 907 (D.C. Cir. 1997).Finding someone in criminal contempt is difficult. It should be, since it’s a finding of criminal conduct.
For example, to determine whether an order is “clear and reasonably specific,” courts “apply an objective standard that takes into account” not just “the language of the order” but also “the objective circumstances surrounding the issuance of the order.” Id. at 907. This gives potential contemnors the ability to argue that the order was not clear on its face or in the context it was given. One can imagine picking apart the transcript of a hearing where an order is given to argue that the context wasn’t entirely clear.
The willfulness standard also has plenty of room for a strong defense to finding criminal contempt. The court must find that the defendants “acted with deliberate or reckless disregard of [their] obligation[s] under the” Order. Id. at 909. An accident would not meet this standard and one could imagine a de minimis violation would not meet it either.
How can a court hold someone in criminal contempt?
In his J.G.G. decision, Judge Boasberg noted that it was not clear whether he was required to find probable cause that the defendants had violated § 401 but ultimately concluded that this “practice” is a “prudent way of affording alleged contemnors the procedural protections associated with other criminal proceedings.” J.G.G., 2025 WL 1119481, at *7–8.
Look! Due process out in the wild!
After a court finds probable cause, it will typically allow the “contumacious party” an opportunity to purge its contempt. This means that the party can fix the problem by voluntarily obeying the court order.
NB: “Contumacious” is such a great word; it means “stubbornly disobedient; rebellious” and the Webster’s definition has a picture of my kids next to it.
If the party does not purge the contempt by coming into compliance, then the court must determine which person or persons are responsible for the conduct. In some cases, this is obvious because it is the defendant himself. But when the answer us not clear—like in the J.G.G. case—the court will determine “whose ‘specific act or omission’ caused the noncompliance.” J.G.G., 2025 WL 1119481, at *20–21 (quoting Cobell v. Norton, 334 F.3d 1128, 1147 (D.C. Cir. 2003). That process could proceed by declarations provided to the court, by depositions taken by the other party, or by sworn testimony in court.
Rule 42 makes clear that the contemnor must be given notice and an opportunity to be heard. The notice can be in court or through an order to show cause or an arrest order. The notice must provide a reasonable time to prepare a defense and describe the “essential facts constituting the charged criminal contempt.” Fed. R. Crim. P. 42(a)(1).
One interesting question is who would prosecute the contempt. Rule 42(a)(2) says that the court “must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney.” The rule anticipates that the government may decline to do so, noting that if this happens, “the court must appoint another attorney to prosecute the contempt.” Id. The Department of Justice may decline to prosecute here or its attorneys may decide that they have a conflict of interest in doing so. This could lead to the appointment of a private prosecutor who must be a disinterested party.
There would then be a trial. The trial could (and likely would) be by a jury. If the contempt involves “disrespect toward or criticism of a judge,” then the judge who began the process would be disqualified from presiding over the trial. Fed. R. Crim. P. 42(a)(3).
The final step is the imposition of punishment if there is a finding of guilt. Section 401 contains no limitation on the punishment—no mandatory minimum and no statutory maximum. In a 2022 SDNY case, a lawyer named Stephen Donzinger was held in criminal contempt by a New York federal court for disobeying a court order to turn over his computer during discovery and sentenced to six months in prison.
Serving a sentence?
If this whole process played out in the J.G.G. case, then one of the defendants could be sentenced to prison for refusing to obey a court order.
That leads to a whole host of questions:
- Who would arrest the defendant? That would normally be the FBI, which is within DOJ. Would the court then hold the Director of the FBI in contempt for failing to comply with a court order to arrest the defendant and bring him to prison?
- Who would incarcerate the defendant? That would be the Bureau of Prisons, which is also within DOJ. Would a court then hold the Director of the BOP in contempt for failing to comply with a court order to incarcerate the defendant?
But let’s be real here: President Trump will likely pardon anyone found guilty of criminal contempt or commute their sentence.
Even if this happens, the process is important. It is important for federal courts to demand that parties before them follow court orders. It is important for federal courts to demonstrate how due process is, and should be, afforded to those accused of wrongdoing and to lead by example. The process is not futile in the long run, even if seems so right now.