The authority of the U.S. Marshals has a dual loyalty. They are under the aegis of the Department of Justice, but they are also the protectors and law enforcement arm of the federal courts.
I've been wrestling with this problem for months since Donald Trump was elected. What was going to happen when he disobeyed a court order? I've covered the use of the U.S. Marshalls before, but hit dead ends on their use. This time I'm going to take the scenario a lot farther.
Knowing anything about Donald Trump, it was bound to happen in his second term. All the things that he said he was going to do that were completely unconstitutional and were going to have to be litigated. He would lose. He would defy the court order. And then what?
It's just happened with the plane loads of Venezuelans sent to El Salvador at the same time as the court said to turn the planes around. CNN put together a timeline of happenings in the court and the plane loads of gang members in the air. The White House is claiming that they didn't violate the order. Karoline Leavitt has given a completely bogus excuse. It's quite plain that they did violate the court order. The judge is scheduling a hearing immediately on this. This has caused newspeople across a broad spectrum to try to make sense of how court orders can be enforced.
So it's happened. What can a federal court do? Could the U.S. Marshals actually go out and arrest Donald Trump or any of his staff, or the ones who physically carried out the deportation? Trump, no, but we'll get to that later. Anybody else, probably yes.
The U.S. Marshals have the broadest authority of any law enforcement agency in the United States. They can do more than the FBI. They can make arrests without a warrant or any offense against the United States committed in their presence. Or any possible felony that they have reasonable grounds to believe a person has committed.
If you have committed contempt of court, the court can issue a warrant for your arrest and put you in jail right then and there.
Not obeying a court order is contempt of court.
The Trump Administration has already disobeyed other court orders besides the one about these deportations, such as the Trump administration not unfreezing all the federal funds that were part of the order.
The Marshals are responsible for obeying, executing, and enforcing all orders of the US District Courts, the US Court of Appeals, and the United States Tax Court.
An article on Democracy Docket explored what might happen when the Marshals are given an order by a court and the DOJ cancels it.
If the court orders that an executive branch member of Trump's administration be arrested by the Marshals, Pam Bondi can just revoke the order, and then the court will be out of options.
"...the Constitution gives judges no power to compel compliance to their rulings, it is the executive branch that ultimately enforces judicial orders."
It's not over yet, though. With criminal contempt, the president could just issue a pardon, and that would be the end of it. Civil contempt is another story. There is no pardon for civil contempt.
Federal Rules of Civil Procedure 4.1.
a) In general, process other than summons or subpoenas must be served by a US Marshal or Deputy Marshal or by a person specially appointed for that service.
It doesn't have to be a US Marshal. The court can just make up their own new law enforcement on the spot. They must be within the state where the court has issued the order or within a hundred miles.
The judge would most likely use other law enforcement agencies like court security officers, probation officers, or local police and sheriffs.
The power to enforce contempt of court was created by the Judiciary Act of 1789. It has a long history of uses and abuses since then. It's history is described at FJC.gov. The Federal Judiciary Center.
Rule 45 (g) Contempt. The court ... may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.
So far, we've got a Marshal going after a Trump administration official for disobeying a court order. The Attorney General cancels the order to the Marshals. The court then appoints another law enforcement officer, not under the Dept. of Justice, and the agent goes out and arrests the Trump administration official and puts him in a holding cell in the courtroom or in any non-federal facility. Trump administration demands the official to be released. Since the order was already disobeyed, and there is no way to retroactively comply with the order now, the administration promises never to do it again and reverse anything committed by disobeying the order. Official is released.
Then the same order is disobeyed again. This time the court goes for the first official's boss. Court skips the Marshals and creates their own service. Arrest the new higher official and the rest of the scenario repeats itself. This could go all the way up to cabinet officials, and even the Vice President. The Supreme Court presidential immunity decision said absolutely nothing about the Vice President. The decision also had nothing to do with civil violations, only with criminal acts. Technically, the judge could have the president arrested and put in jail, or that holding cell. There is the Dept. of Justice policy that civil cases cannot be brought against the president while in office, but this isn't the DOJ, it's the court system. The Dept. of Justice argues before it, but has no control over it. Civil suits can be filed against the president at any time in federal or nonfederal courts. Whether they'll actually get anywhere is a different question.
Then Trump says the judge should be impeached. Article III federal judges can only be impeached by the House and convicted by the Senate. Majority in the House, and 67 in the Senate, or 2/3 of Senators present. No Democratic Senator, not even Fetterman, is going to vote against a judge holding the Trump administration to account.
Judge stays on the job, and any questions about the validity of his order are removed. Trump tries to defund the court. He orders the General Services Administration to stop paying the utility bills and maintenance of the courthouse, if there's a lease or rent, he cancels it. Trump tells the Treasury Dept. to stop paying the judge's salary.
Judge sues Trump in another federal court with pro bono attorneys from numerous non-profits. Judge wins. Court, maintenance and court services return. Trump takes the case to the Supreme Court saying he has all the power of the things he tried to do. Supreme Court realizes they could be next and rules against Trump.
Till the next case.
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Update: From the NY Times.
Judge Boasberg on Monday ordered the government to detail the timing of the flights of the Venezuelans to El Salvador by Tuesday, asking them when they thought his order went into effect.
The Justice Department lawyers tried to have the hearing canceled and refused to answer detailed questions by the judge.
Judge Boasberg ordered the DOJ lawyer, Abhishek Kambli to certify in writing, under seal if necessary, by noon Tuesday, that no immigrants were removed after his order.
This would mean anyone, anywhere. He's not even dealing yet with Trump's use of the Alien Enemies Act.
The government seems to think they can respond only to the judge's written order, ignoring the verbal order from the bench. Or that the government can respond differently to each one.
Judge Boasberg's comment was, "That's a heckuva stretch."
The battle is on right here about the authority of a judge vs. the executive. Boasberg has stopped these proceedings dead in their tracks to focus on the government testing his authority.
Tomorrow will be very interesting.
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Tuesday Update:
The Department of Justice once again refused to answer questions that Judge Boasberg had demanded.
"The Government maintains there is no justification to order the provision of additional information, and that doing so would be inappropriate," the Justice Department wrote in their response.
Judge Boasberg categorized the response as, "We don't care, we'll do what we want."
The government said that two of the planes had left US territory and airspace before the judges written decision at 7:25 p.m. on Saturday. The third plane left at 7:27 according to information obtained, obviously from plane transponders, because the government did not include that information on the third plane.
The government declined to give any additional information.
"If, however the Court nevertheless orders the government to provide additional details, the court should do so through an in camera and ex parte declaration, in order to protect sensitive information bearing on foreign relations."
The government, of course, did a filing last night asking the judge to reverse his original decision.
Not covered, apparently, was the controversy over the order Judge Boasberg gave from the bench for the planes to turn around, which was hours before his written decision, the verbal being completely ignored by the government.
The parties in the case are next set to meet in court on Friday.
