Judges Have One Defense Against Trump They (Mostly) Haven’t Used Yet

Judicial contempt is a tool few jurists have reached for to curb the administration’s misrule—and for good reason. But that may be about to change.

While Congress’s unwillingness to counteract Donald Trump’s escalating authoritarianism has prompted much public handwringing, the past few months have brought out some public frustration with the judiciary’s efforts to rein in Trump. Recently, a Reuters analysis of court records revealed that federal judges around the country found that the Trump administration had unlawfully detained immigrants a staggering 4,400 times, with the administration consistently deploying the same legal arguments that have been slapped down a hundred times already.

In one representative example of frustration, Minnesota District Judge Michael J. Davis wrote that “there has been an undeniable move by the Government in the past month to defy court orders or at least to stretch the legal process to the breaking point in an attempt to deny noncitizens their due process rights,” in an order granting release to one petitioner. Before Border Patrol commander Greg Bovino was unceremoniously dumped following public backlash to the killings of Renee Good and Alex Pretti in Minneapolis, a federal judge in Chicago had ordered him to appear for daily briefings to explain what seemed like continuous violations of a court directive to limit use of force.

On a handful of occasions, federal judges have broached the natural conclusion of this executive defiance, the only real tool that judges have at their disposal to move past the mere issuing of an order to actually enforcing it: contempt. Maryland Judge Paula Xinis raised the prospect of contempt over the Justice Department’s recalcitrance in providing information in the case of the wrongfully deported Kilmar Ábrego García. Minnesota Judge Patrick Schiltz threatened acting ICE Director Todd Lyons with it over the failure to release one particular detainee. Then there is D.C. Judge James Boasberg, who is looking into whether administration officials could be held in contempt over a failure to heed his order for Homeland Security to turn around planes that were removing people under the Alien Enemies Act—a case more than a year old.

This week, a judge in Minnesota finally took the leap and issued a contempt order against the government attorney in a case in which the government had failed to release a petitioner with all his documents despite a court order (this attorney also happens to be a military judge advocate general detailed to the Justice Department, which is a whole separate issue). Matthew Isihara is ordered to pay a $500 fine daily for every day the petitioner goes without the return of his documents.

Yet in the face of all this flagrant disregard of federal court directives—a mix of the malicious and the incompetent—this has been the only formal contempt finding against a public functionary or official, amounting to a somewhat limited fine. Why?........

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