What Can a Judge Do If Trump Defies the Courts?
A former federal judge offers insights on the growing friction between the White House and the judiciary.
TroibNews 
As tensions escalate between President Donald Trump and the judiciary, a previously unthinkable question surfaces: Is the administration willing to openly defy federal judges if it fails to achieve its goals?
This dilemma has gained prominence in the dispute concerning the administration's deportation of Venezuelan nationals under the Alien Enemies Act. The judge overseeing the case, James Boasberg, chief judge of the federal district court in Washington, D.C., instructed the government to turn around planes carrying deportees. However, the administration maintains that it did not intentionally disregard the court's directive. Judge Boasberg has since sought additional details from the government and is scheduled to hold a hearing on Friday to assess the situation further.
To better understand the implications and options available to Judge Boasberg, I spoke with Shira Scheindlin, a former federal judge in Manhattan with 22 years of experience on the bench. Known for her firm courtroom control and handling of complicated legal disputes, Scheindlin provided her insights.
In discussing whether the U.S. is already facing a constitutional crisis, Scheindlin emphasized that the critical tipping point would occur if the executive branch chooses to ignore the judiciary, though Trump has stated he wouldn't resort to such measures.
But what if this line is crossed?
“That’s when authoritarians become dictators and really tear down the temple by just ignoring the Constitution, ignoring the judiciary,” she remarked. “That would be the shocking end to our 250-year experiment.”
Did you ever face a situation where there was credible evidence that the government had intentionally violated one of your orders?
No. I don’t recall such an event occurring.
In the deportation case, the government argues there is a distinction between oral and written orders from a judge, suggesting that oral orders lack significance unless they are documented in writing. What do you think of that?
That it’s creative? That’s all I can make of it, because I’ve never heard it before.
When a judge issues an oral order, they often affirm it by saying, “that’s my order” or “so ordered.”
Appealing an oral order is challenging unless there’s a certified transcript. Given the high-profile nature of this case, I would assume they had a court reporter present. There should be a transcript available, allowing for an appeal based on that document.
In my own experience, litigants have sometimes taken transcripts to the Second Circuit, saying, “you know, she’s wrong.”
With Judge Boasberg's hearing scheduled for Friday, what approach would you take if you were in his position?
He’s asked specific questions about when particular flights took off and landed, who issued the orders, and who communicated with the administration following his oral directive. I suspect he has numerous questions that he believes the government must answer, and so far, the government has been evasive in addressing straightforward inquiries.
Answering those questions is not particularly difficult. What was the flight? Name and number. What airport did it depart? What time? Who did you contact after I issued my oral order? At what time?
He knows the timing of his order, which is likely documented in the transcript. Those are the questions I would focus on during the hearing.
If Judge Boasberg or any other judge determined that the government willfully violated a court order, what options would he have?
I can tell you that every former judge has been posed this question, including me. I believe the only real option is civil contempt.
Criminal contempt generally requires referral to the Justice Department for prosecution. If a lawyer or witness refuses to comply with a judge's directive or lies, charging them with criminal contempt necessitates the involvement of the U.S. Attorney’s office, which, under the Trump administration, is unlikely to happen.
This raises another question, which was brought up in the Eric Adams case: could a special prosecutor be appointed? That poses challenges concerning separation of powers, so I think criminal contempt is off the table.
On the other hand, civil contempt is a feasible route if the facts are straightforward. Surprisingly, remedies for civil contempt can include incarceration.
Typically, it involves fines. If an attorney is involved, a grievance could be filed against them if they lied to the court or personally violated the order—an option available through the local bar association.
So potential consequences include fines or grievances; in theory, it could also involve jail time. I only did that once, placing someone in jail for civil contempt who was particularly defiant, which prompted compliance.
Sanctioning individuals can also be an interesting approach, as fines could double daily, escalating quickly. A $1,000 fine doubling each day can rapidly accumulate significant sums, particularly for an individual, even if not for the U.S. government.
How would incarceration occur in a civil contempt case? Wouldn’t that still involve the executive branch?
Yes, you'd need the U.S. Marshal to take the individual away, which is indeed problematic.
When I held someone in civil contempt, I specifically instructed the Marshal, “take this person across the street to the jail.”
That's inherently tied to the executive branch—specifically, the U.S. Marshal transporting the individual to a federal facility. So it's a concern, though a prosecutor's role isn’t necessary.
Doubts about the Department of Justice's credibility have been voiced since the beginning of the Trump administration—whether regarding the dismissal of charges against Eric Adams or the firing of civil servants.
How should one approach a situation where there’s skepticism about the government’s representations in court?
That’s a very relevant question. You'd need to gather extrinsic evidence to refute any falsehoods.
We previously discussed evasiveness—refusing to answer or dodging questions—but making false statements to the court requires extrinsic evidence to establish that the statement was untrue.
For instance, if opposing counsel were able to determine the flight details and it turned out the government misrepresented the timeline, saying, “the plane took off before your order,” when it actually took off after the directive, that would be serious. Such an instance may warrant a grievance against the attorney for dishonesty, but substantiating that claim would require evidence.
You can’t simply assert, “I don’t trust you.” That would likely be ineffectual.
You could express your doubts, saying, “I am very concerned about your candor with the court,” but taking action would necessitate factual backing to demonstrate dishonesty.
Judges often develop a keen sense of these situations through experience. Judge Boasberg, with his long history on the bench, would likely recognize when something feels off.
Attorneys carry an ethical obligation to maintain candor to the tribunal.
Are you worried we might face a scenario where the government explicitly defies a court order?
Yes, I do have concerns about that. As members of civil society, we’ve been discussing the possibility of a constitutional crisis.
Commentators often argue, “not yet, but almost.”
A constitutional crisis would manifest if the executive branch stated to the judiciary, “Too bad, I don’t have to listen to you.” We haven’t reached that point yet, but this administration is approaching it closely.
If they outright declare, “We don’t have to listen to you,” that poses a significant threat.
It’s crucial for the three branches of government to maintain equality and mutual respect.
What do you think would happen in such a case, particularly involving a Supreme Court ruling, regarding public confidence in the judicial system and implications for American politics?
A genuine constitutional crisis, wherein the executive branch dismisses the judiciary, would severely threaten our democracy.
We are built on the principle of separation of powers, established among three co-equal branches of government.
That would represent the authoritarian leader saying, “I’m dismantling the whole system.”
Such an act signifies when authoritarians evolve into dictators, fully disregarding the Constitution and the judiciary. We would lose our independent judiciary.
That scenario would mark a shocking conclusion to our 250-year experiment, with disastrous impacts.
In terms of public trust, I believe over 50 percent of the populace would feel outraged and alarmed. They didn’t vote for a leader intent on dismantling democratic structures.
Trump has called for the impeachment of Judge Boasberg, but we recently saw a rare statement from Chief Justice John Roberts countering that idea. What are your thoughts on Trump’s comments and Roberts’ response?
Trump knows better.
His associates have entertained impeachment discussions for weeks, starting with Judge [Paul] Engelmayer, whose early ruling they disliked, leading to calls for his impeachment. They have now shifted their focus to Judge Boasberg.
Many of us have publicly opposed such talk of impeachment, clarifying that a ruling one disagrees with does not constitute a high crime or misdemeanor, which is what impeachment requires.
It’s an outrageous proposition to suggest that disagreement with a ruling could justify impeachment. As Roberts pointed out, one can appeal and pursue the case through the proper channels, but abolishing a judge is off the table. The Constitution guarantees them life tenure, and impeachment lacks a valid foundation; a ruling one dislikes simply isn’t a high crime or misdemeanor.
Criticism is mounting not just from Trump, but also from congressional Republicans and conservative activists. Do you believe judges can disregard this barrage of criticism? After all, judges consume news, and reports of rising threats against them are concerning.
I’ve experienced public criticism and attack firsthand. The key question is whether those factors deter or intimidate you.
Intimidation is a real concern, especially when you have family members to consider. There have been instances of violence against judges—it’s part of the historical context.
Tragic events have occurred, including judges losing loved ones. The violence we've seen in recent years is alarming, particularly in light of the January 6 incidents.
It only takes one unstable individual for a judge or their family to be put in jeopardy.
Such climate aims to instill fear, but most judges will likely remain resolute. They will continue their commitment to justice, which is commendable; however, it’s unfortunate that even in the back of their minds, they must harbor concerns about their safety—both their own and that of their families.
That’s distressing, yet I believe they will persevere.
Judges have certainly shown resilience; it seems that Trump has faced a continuous string of losses at the trial level, regardless of whether the judges were appointed by Republicans or Democrats.
As we conclude, is there anything else you’d like to add?
Roberts’ decision to address the impeachment talk was noteworthy, perhaps unprecedented.
While he delivers a state of the judiciary speech annually, it is exceedingly rare for him to step forward to make a statement like this. The last instance might have been when Trump was in office during his early criticisms of judges for their political affiliations.
Roberts asserted then that there are no partisan judges; they all adhere to the law.
It was significant that, following Trump’s call for judges to be impeached, Roberts would declare, “Enough is enough. I’m going to speak out. I’m the chief justice. They can’t touch me. I’m going to say what I think.”
Debra A Smith for TROIB News
This dilemma has gained prominence in the dispute concerning the administration's deportation of Venezuelan nationals under the Alien Enemies Act. The judge overseeing the case, James Boasberg, chief judge of the federal district court in Washington, D.C., instructed the government to turn around planes carrying deportees. However, the administration maintains that it did not intentionally disregard the court's directive. Judge Boasberg has since sought additional details from the government and is scheduled to hold a hearing on Friday to assess the situation further.
To better understand the implications and options available to Judge Boasberg, I spoke with Shira Scheindlin, a former federal judge in Manhattan with 22 years of experience on the bench. Known for her firm courtroom control and handling of complicated legal disputes, Scheindlin provided her insights.
In discussing whether the U.S. is already facing a constitutional crisis, Scheindlin emphasized that the critical tipping point would occur if the executive branch chooses to ignore the judiciary, though Trump has stated he wouldn't resort to such measures.
But what if this line is crossed?
“That’s when authoritarians become dictators and really tear down the temple by just ignoring the Constitution, ignoring the judiciary,” she remarked. “That would be the shocking end to our 250-year experiment.”
Did you ever face a situation where there was credible evidence that the government had intentionally violated one of your orders?
No. I don’t recall such an event occurring.
In the deportation case, the government argues there is a distinction between oral and written orders from a judge, suggesting that oral orders lack significance unless they are documented in writing. What do you think of that?
That it’s creative? That’s all I can make of it, because I’ve never heard it before.
When a judge issues an oral order, they often affirm it by saying, “that’s my order” or “so ordered.”
Appealing an oral order is challenging unless there’s a certified transcript. Given the high-profile nature of this case, I would assume they had a court reporter present. There should be a transcript available, allowing for an appeal based on that document.
In my own experience, litigants have sometimes taken transcripts to the Second Circuit, saying, “you know, she’s wrong.”
With Judge Boasberg's hearing scheduled for Friday, what approach would you take if you were in his position?
He’s asked specific questions about when particular flights took off and landed, who issued the orders, and who communicated with the administration following his oral directive. I suspect he has numerous questions that he believes the government must answer, and so far, the government has been evasive in addressing straightforward inquiries.
Answering those questions is not particularly difficult. What was the flight? Name and number. What airport did it depart? What time? Who did you contact after I issued my oral order? At what time?
He knows the timing of his order, which is likely documented in the transcript. Those are the questions I would focus on during the hearing.
If Judge Boasberg or any other judge determined that the government willfully violated a court order, what options would he have?
I can tell you that every former judge has been posed this question, including me. I believe the only real option is civil contempt.
Criminal contempt generally requires referral to the Justice Department for prosecution. If a lawyer or witness refuses to comply with a judge's directive or lies, charging them with criminal contempt necessitates the involvement of the U.S. Attorney’s office, which, under the Trump administration, is unlikely to happen.
This raises another question, which was brought up in the Eric Adams case: could a special prosecutor be appointed? That poses challenges concerning separation of powers, so I think criminal contempt is off the table.
On the other hand, civil contempt is a feasible route if the facts are straightforward. Surprisingly, remedies for civil contempt can include incarceration.
Typically, it involves fines. If an attorney is involved, a grievance could be filed against them if they lied to the court or personally violated the order—an option available through the local bar association.
So potential consequences include fines or grievances; in theory, it could also involve jail time. I only did that once, placing someone in jail for civil contempt who was particularly defiant, which prompted compliance.
Sanctioning individuals can also be an interesting approach, as fines could double daily, escalating quickly. A $1,000 fine doubling each day can rapidly accumulate significant sums, particularly for an individual, even if not for the U.S. government.
How would incarceration occur in a civil contempt case? Wouldn’t that still involve the executive branch?
Yes, you'd need the U.S. Marshal to take the individual away, which is indeed problematic.
When I held someone in civil contempt, I specifically instructed the Marshal, “take this person across the street to the jail.”
That's inherently tied to the executive branch—specifically, the U.S. Marshal transporting the individual to a federal facility. So it's a concern, though a prosecutor's role isn’t necessary.
Doubts about the Department of Justice's credibility have been voiced since the beginning of the Trump administration—whether regarding the dismissal of charges against Eric Adams or the firing of civil servants.
How should one approach a situation where there’s skepticism about the government’s representations in court?
That’s a very relevant question. You'd need to gather extrinsic evidence to refute any falsehoods.
We previously discussed evasiveness—refusing to answer or dodging questions—but making false statements to the court requires extrinsic evidence to establish that the statement was untrue.
For instance, if opposing counsel were able to determine the flight details and it turned out the government misrepresented the timeline, saying, “the plane took off before your order,” when it actually took off after the directive, that would be serious. Such an instance may warrant a grievance against the attorney for dishonesty, but substantiating that claim would require evidence.
You can’t simply assert, “I don’t trust you.” That would likely be ineffectual.
You could express your doubts, saying, “I am very concerned about your candor with the court,” but taking action would necessitate factual backing to demonstrate dishonesty.
Judges often develop a keen sense of these situations through experience. Judge Boasberg, with his long history on the bench, would likely recognize when something feels off.
Attorneys carry an ethical obligation to maintain candor to the tribunal.
Are you worried we might face a scenario where the government explicitly defies a court order?
Yes, I do have concerns about that. As members of civil society, we’ve been discussing the possibility of a constitutional crisis.
Commentators often argue, “not yet, but almost.”
A constitutional crisis would manifest if the executive branch stated to the judiciary, “Too bad, I don’t have to listen to you.” We haven’t reached that point yet, but this administration is approaching it closely.
If they outright declare, “We don’t have to listen to you,” that poses a significant threat.
It’s crucial for the three branches of government to maintain equality and mutual respect.
What do you think would happen in such a case, particularly involving a Supreme Court ruling, regarding public confidence in the judicial system and implications for American politics?
A genuine constitutional crisis, wherein the executive branch dismisses the judiciary, would severely threaten our democracy.
We are built on the principle of separation of powers, established among three co-equal branches of government.
That would represent the authoritarian leader saying, “I’m dismantling the whole system.”
Such an act signifies when authoritarians evolve into dictators, fully disregarding the Constitution and the judiciary. We would lose our independent judiciary.
That scenario would mark a shocking conclusion to our 250-year experiment, with disastrous impacts.
In terms of public trust, I believe over 50 percent of the populace would feel outraged and alarmed. They didn’t vote for a leader intent on dismantling democratic structures.
Trump has called for the impeachment of Judge Boasberg, but we recently saw a rare statement from Chief Justice John Roberts countering that idea. What are your thoughts on Trump’s comments and Roberts’ response?
Trump knows better.
His associates have entertained impeachment discussions for weeks, starting with Judge [Paul] Engelmayer, whose early ruling they disliked, leading to calls for his impeachment. They have now shifted their focus to Judge Boasberg.
Many of us have publicly opposed such talk of impeachment, clarifying that a ruling one disagrees with does not constitute a high crime or misdemeanor, which is what impeachment requires.
It’s an outrageous proposition to suggest that disagreement with a ruling could justify impeachment. As Roberts pointed out, one can appeal and pursue the case through the proper channels, but abolishing a judge is off the table. The Constitution guarantees them life tenure, and impeachment lacks a valid foundation; a ruling one dislikes simply isn’t a high crime or misdemeanor.
Criticism is mounting not just from Trump, but also from congressional Republicans and conservative activists. Do you believe judges can disregard this barrage of criticism? After all, judges consume news, and reports of rising threats against them are concerning.
I’ve experienced public criticism and attack firsthand. The key question is whether those factors deter or intimidate you.
Intimidation is a real concern, especially when you have family members to consider. There have been instances of violence against judges—it’s part of the historical context.
Tragic events have occurred, including judges losing loved ones. The violence we've seen in recent years is alarming, particularly in light of the January 6 incidents.
It only takes one unstable individual for a judge or their family to be put in jeopardy.
Such climate aims to instill fear, but most judges will likely remain resolute. They will continue their commitment to justice, which is commendable; however, it’s unfortunate that even in the back of their minds, they must harbor concerns about their safety—both their own and that of their families.
That’s distressing, yet I believe they will persevere.
Judges have certainly shown resilience; it seems that Trump has faced a continuous string of losses at the trial level, regardless of whether the judges were appointed by Republicans or Democrats.
As we conclude, is there anything else you’d like to add?
Roberts’ decision to address the impeachment talk was noteworthy, perhaps unprecedented.
While he delivers a state of the judiciary speech annually, it is exceedingly rare for him to step forward to make a statement like this. The last instance might have been when Trump was in office during his early criticisms of judges for their political affiliations.
Roberts asserted then that there are no partisan judges; they all adhere to the law.
It was significant that, following Trump’s call for judges to be impeached, Roberts would declare, “Enough is enough. I’m going to speak out. I’m the chief justice. They can’t touch me. I’m going to say what I think.”
Debra A Smith for TROIB News
