Amid the growing battle between President Donald Trump and the courts, a once-unthinkable question is harder to shrug off: Will the administration deliberately defy federal judges if it doesn’t get what it wants?
The issue has come into sharp relief in the challenge to the administration’s deportation of Venezuelan nationals under the purported authority of the Alien Enemies Act. The presiding judge — James Boasberg, chief judge of the federal district court in Washington, D.C. — directed the government from the bench to turn the planes around carrying the deportees. That did not happen, though the administration claims it did not deliberately defy the judge. Boasberg has since pressed the government for more information, and on Friday, he will hold a hearing to consider the matter further.
To consider Boasberg’s options and the implications, I spoke with Shira Scheindlin, a former federal judge in Manhattan who served on the bench for 22 years. She is no stranger to complex, high-profile disputes involving the government, and as I can attest from brief personal experience — I once litigated before Judge Scheindlin while I worked in the private sector — she had a well-earned reputation for exercising firm control over her courtroom and the lawyers who appeared before her.
Scheindlin said that in the debate over whether the United States is already in a constitutional crisis, the real red line is if the executive branch defies the judiciary, a move that Trump says he wouldn’t take.
But if it were to happen?
“That’s when authoritarians become dictators and really tear down the temple by just ignoring the Constitution, ignoring the judiciary,” she said. “That would be the shocking end to our 250-year experiment.”
This interview has been edited for length and clarity.
Did you ever confront a situation where there was a credible suggestion that the government had deliberately violated one of your orders?
No. I don’t remember any such event happening.
In the case over deportations under the Alien Enemies Act, the government has argued that there is a difference between an oral order and a written order from a judge — that oral orders are somehow meaningless if they aren’t immediately embodied in a written order. What do you make of that argument?
That it’s creative? That’s all I can make of it, because I’ve never heard it before.
When a judge makes an order from the bench, they sometimes say at the end, “that’s my order” or “so ordered.”
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It’s tough to appeal an oral order unless there’s a certified transcript. Given that this is a high profile case, I bet he had a court reporter in the courtroom. I bet there is a transcript, and I bet they could have appealed it based on the transcript.
I have had that happen — where it was so urgent that [a litigant] took the transcript, got up to the Second Circuit and said, “you know, she’s wrong.”
Judge Boasberg has scheduled a hearing for Friday to determine next steps. The government has been making submissions in response to his orders, but they’ve been somewhat tentative and somewhat defiant. If you were Judge Boasberg, how would you approach this hearing?
I think he’s posed very specific questions to the government as to when certain flights took off. When did certain flights land? Who gave the [order]? Who was in touch with [the administration] after he issued his oral order?
I’m sure he has a lot of questions that he thinks the government has to answer, and I think the government so far has been evasive in answering such simple questions.
It is not hard to answer the questions I just gave as examples. What was the flight? Name and number. What airport did it leave? What time did it land? Who did you speak to after I gave my oral order? What time?
He knows the time of [his order]. That’s probably on the transcript. Those are the kinds of questions I think I would be asking on Friday.
Assuming that the judge — Judge Boasberg or any other judge for that matter — eventually concludes that the government deliberately violated a court order, what are the judge’s options?
I can tell you that every former judge I know has been asked this question by somebody in the media, including me. I think the only real option is civil contempt.
The reason why it cannot be criminal contempt is generally that would be referred to the Justice Department to prosecute. So you might have a lawyer, a witness that you direct to answer [a question], they refuse, and/or they lie. If you want to charge them with criminal contempt, you have to get the U.S. Attorney’s office or Main Justice to prosecute, and clearly the Trump Justice Department, or the Bondi Justice Department, is not going to prosecute.
Then you get that question, which was raised in the Eric Adams case, could you appoint a special prosecutor? That’s tricky because of separation of powers, so I think criminal contempt is off the table.
I think civil contempt, however, is something that could be done if the facts are fairly straightforward. The remedy in civil contempt, believe it or not, can include incarceration.
Usually it’s fines. If it was a lawyer, you might file a grievance against the lawyer. That could be done if these lawyers either lie to the court or personally violate the order — you might want to bring a grievance before the grievance committee of the local bar where they’re admitted, something like that.
So it could be fines, could be a grievance, but in theory, it could also be jailing somebody. I did that only once in my time on the bench. In a civil contempt case, I actually put somebody in jail because he was so defiant, and then … he did what he was told to do.
You could also sanction the person, and that’s always interesting, because you could have fines that double every day, so it can get serious fast. I don’t know how good at math you are, but a $1,000 fine doubling every day can quickly add up to real money — not for the United States government, but for an individual. If somebody was individually sanctioned, that adds up.
How would incarceration work in civil contempt? Wouldn’t you still need the involvement of the executive branch?
Well, you need the person taken away by the U.S. Marshal. That’s the problem, right?
When I held someone in civil contempt, I had to say, “Marshal, take this person across the street to the jail.”
That is part of the executive branch — just the U.S. Marshal escorting the person over to the federal facility. So it still has that problem, but you don’t need a prosecutor.
There have been reasons to doubt the veracity of the DOJ’s arguments in court since the start of the Trump administration — to take just a couple examples, the arguments about why the prosecution against Eric Adams is being dismissed, and the arguments about why some civil servants have been fired.
How do you approach a situation where you might not fully trust the representations that the government is making in court?
That’s a very good question. You have to try to develop evidence extrinsically to prove the falsehood.
We talked about being evasive — in other words, just refusing to answer or ducking the question — but actually making a false statement to the court? You would have to have extrinsic evidence that it’s false.
If [opposing counsel] was able to find out what flight, what plane, when it left, when it landed, and it turns out that the government lied and said, “Well, the plane took off before your order.” Let’s say it turned out it took off an hour after the order. That’s bad. That’s a grievance to be filed against the individual attorney, who is an officer of the court, but you’d have to develop extrinsic evidence.
You can’t just say, “I don’t trust you.” I don’t think that would work.
You could say, “I’m very doubtful that you have been candid with the court. I’m concerned about the veracity of what you’ve told me,” but I’m not going to take action without facts to prove that you have been dishonest with the court.
Judges do have a sixth sense for that. They’ve been around. [Judge Boasberg] also has been around a long time. He’s very experienced. I think you kind of know it when you see it.
The lawyer has an ethical obligation to be candid to the tribunal.
Are you worried that we’ll see a situation where the government explicitly and outright defies a court order?
I am concerned about that. We’ve been talking — we being civil society, everybody — about whether we’re in a constitutional crisis.
Everybody keeps writing an op-ed saying, “Not yet, but almost.”
The constitutional crisis will occur when the executive branch says to the judicial branch, “Too bad, I don’t have to listen to you.” That’s a constitutional crisis, and we haven’t quite gotten there.
It seems to me that this executive branch is getting as close to that line as they possibly can without crossing it yet. But if they really just say, “We don’t have to listen to you,” that’s very bad.
There have to be three co-equal branches of government, and each branch has to respect the other.
What do you think happens in a situation like that — particularly if it’s a Supreme Court ruling — in terms of the public’s confidence in the judicial system and the effects on American politics?
If we really had the constitutional crisis that I just described — where the executive branch says to the judicial branch, “I don’t have to listen to you” — that’s a very, very, very serious threat to our democracy.
We are built on the separation powers. We’re built on three co-equal branches of government.
That’s the authoritarian dictator saying, “I’m tearing down the whole wall.”
That’s when authoritarians become dictators and really tear down the temple by just ignoring the Constitution, ignoring the judiciary. We won’t have an independent judiciary any longer.
That would be the shocking end to our 250-year experiment. It would be bad.
And as far as public trust, I think more than 50 percent of the public would be very concerned and outraged. They didn’t vote for this guy to tear down the house.
Trump has called for Judge Boasberg to be impeached, but this week, we saw a rare statement from Chief Justice John Roberts pushing back on that idea. What do you make of Trump’s comments — and also Roberts’?
Trump knows better.
His cronies have been talking impeachment for weeks now. They started with a judge from my court, Judge [Paul] Engelmayer, one of the early rulings they didn’t like. They attacked him and said he had to be impeached, then they wanted to impeach a different judge. Now it’s Boasberg.
A lot of us have spoken out against the word “impeachment,” pointing out very simply that a ruling you don’t agree with is neither a high crime nor a misdemeanor, and impeachment is limited to those [circumstances] and has never been used in any other way.
So that’s outrageous. It’s a terrible thought. You disagree with the ruling, as Roberts said, you appeal it and you appeal it again, and that’s our system. But you can’t get rid of the judge. The Constitution gives us life tenure. That’s the Constitution, and so impeachment is just not on the table. There’s no basis. It’s not a high crime or misdemeanor.
There’s been rising criticism, not just from Trump, but as you mentioned, congressional Republicans and also conservative activists. Are you confident that the judges can tune out all of this criticism? Judges read the news too, and there have been reports of rising threats to judges.
I’ve been in that position where I’ve been publicly attacked, publicly criticized. The question is, does that deter you? Does that scare you? Does that intimidate you? That’s the threat.
Do you become intimidated? You do have family, you have spouses and children and parents, and there has been violence against judges. You know the history as well as I do. One judge lost her son, and another judge lost a husband and a mother.
Terrible things have happened, so you can’t help but worry about your security in an age where we’ve seen on TV, in a loop that never stops, what the January 6 rioters did, how they acted, how they tore through that building.
It only takes one nut, and you or your family could be in danger.
They’re doing it to cause a chilling effect, but I think most judges are not going to be deterred. They’re going to continue to stand up. They’re going to continue to do what they think is right, but it’s unfortunate that they have to, even in the back of their mind, worry that a judicial ruling could mean that they’re physically in danger — them and their family. That’s sad, but I don’t think they’ll be deterred.
They certainly haven’t been. It seems to me [that Trump has] been losing most cases at the trial level, no matter who appointed the judge, whether it’s a so-called Republican appointee or Democratic appointee, either way. He’s been losing in the district courts, and he lost again in the Ninth Circuit.
Before we wrap up, is there anything else you’d like to add?
Roberts’ decision to speak out was unusual, almost unprecedented.
He gives a state of the judiciary speech once a year, but I think only once before, maybe twice in all the years he’s been chief justice, has he just come out and decided to make a statement. I think the last time was when Trump was president at the beginning, and he kept criticizing judges for being an Obama judge or a Clinton judge.
And Roberts said there is no Obama judge. There is no Clinton judge. There’s no Reagan judge. They’re all federal judges, and they all do what they think is right.
It was very unusual that immediately after Trump himself called for impeaching judges, [Roberts] must have said to himself, “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.”