D.C.’s chief federal judge is facing a severe limitation as he considers criminal contempt proceedings against government officials for brazenly ignoring court orders to halt deportation flights: President Donald Trump’s power to subvert accountability by issuing pardons.
A brief pause issued by the D.C. appellate court late Friday only delayed this particular confrontation of powers.
The situation amounts to nesting brewing constitutional crises, as the judiciary grapples with its ability to contain the executive branch. And as is true for many of Trump’s other expansions of executive power, his potential use of pardons in this case would be rooted in the acts of a long history of American institutionalists who believed a president would respect the rule of law.
It’s been a month since Trump invoked a wartime measure to label some migrants “enemy aliens” and drape secrecy over an Immigration and Customs Enforcement operation to rapidly remove them to an El Salvador prison widely accused of being a site of torture. This week, U.S. District Judge James Boasberg found probable cause that federal officials committed criminal contempt by refusing to obey his court and return the planes these migrants were deported on mid-operation, warning that “the Constitution does not tolerate willful disobedience of judicial orders.”
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Boasberg gave the White House the option to “cure” the violation by returning the Venezuelans and Salvadorans back to U.S. custody and raised the specter of deputizing an independent prosecutor to investigate the matter.
The threat immediately led to several legal scholars, like Harry Litman and Lee Kovarsky, noting that Trump could kill off any prosecution attempt by issuing presidential pardons to whichever White House, Justice Department and Department of Homeland Security officials were involved.
Although some legal experts suggested last week that Boasberg should have opted for an accusation of civil contempt, which would sidestep the pardoning question, the judge didn’t have that option. The Supreme Court had already removed the basis for the underlying class action lawsuit in Washington when it ordered that jailed migrants bound for El Salvador’s Terrorist Confinement Center instead challenge their pending removals in the districts where they’re being held, typically in Louisiana and Texas. So Boasberg reached for the only tool left: criminal contempt, which stands on its own even if the subordinate case was toppled.
But that paves the way for Trump to issue presidential pardons, which can wipe the slate clean for anyone who commits a federal crime. And thanks to William Howard Taft, the U.S.’s 27th president who went on to become a Supreme Court chief justice, that includes criminal contempt of court.
It all comes down to the 1925 Supreme Court decision known as Grossman, which turned 100 years old the very month that Trump invoked the Alien Enemies Act to initiate the rushed removals that led to this moment.
In that decision, Chief Justice Taft concluded that presidents should retain this kind of power over the courts. After all, he noted, they’d already done it 27 times over three-quarters of a century by that point without any blatant corrupt misuse that justified the need “to invoke a test in the federal courts of its validity.”
“Our Constitution confers the discretion on the highest officer in the nation in confidence that he will not abuse it,” Taft reasoned.
Rutgers Law School professor David Noll said that the decision remains controversial — especially now. That’s particularly because of Taft’s historically unique position as a justice who had once been president.
“He used his position as chief justice to advance the interest of the executive branch,” Noll told NOTUS. “What you see in Grossman is consistent with Taft’s general worldview: He had great faith in the fact that the president would look out for the interests of the country.”
Taft’s particular dismissal of concerns about presidential power reads differently now, especially after Trump’s liberal use of the pardoning power to release all rioters convicted in the Jan. 6 attack on the Capitol.
“If we could conjure up in our minds a president willing to paralyze courts by pardoning all criminal contempts, why not a president ordering a general jail delivery?” Taft mused in his 1925 decision.
Noll chuckled at the argument.
“With the benefit of hindsight, he’s not only wrong on the Constitution, he’s incredibly naïve in his view about how executive power would be exercised,” Noll said.
The Justice Department made no mention of the Grossman decision in its 80-page appeal of Boasberg’s order it filed Thursday to the D.C. Circuit, not even hinting that pardons were on the table. But Taft’s decision is sure to come up if Boasberg’s criminal contempt inquiry progresses and Trump intervenes.
That seminal case dealt with the way a man named Philip Grossman kept selling liquor at his Chicago business during the Prohibition era even after a federal judge had ordered him to stop, leading to a jail sentence and $1,000 fine for contempt of court. President Calvin Coolidge pardoned Grossman, and the fight made its way to the high court.
Basing its reasoning on the way colonial Americans largely drew from the English legal system, the Supreme Court observed how “before our Revolution, the King of England had always exercised the power to pardon criminal-contempts.”
“There is no substantial difference in this matter between the executive power of pardon in our government and the King’s prerogative,” the high court noted.
The term “king’s prerogative” stems from English law’s view of monarchical power. As English jurist William Blackstone made clear in his influential 18th-century treatise, that royal privilege is based on the idea that a king “is not only incapable of doing wrong, but ever of thinking wrong.”
There is, though, a significant difference between a president pardoning a convicted criminal and absolving someone who is actively flouting a judge’s orders. When a judge issues a sentence, their work in a particular case is done — and isn’t directly affected by a president’s decision to swoop in later with a get-of-out-jail card. But judges have a continued interest in seeing their decrees followed, and presidential intervention threatens to strip judges of their power.The two special assistants to the attorney general assigned to Grossman’s case saw that distinction. They argued that “the pardoning power of the executive cannot be construed to cover contempts of court without encroaching upon the judicial power of the United States.”
They warned about a “tyrannical executive” who could have “disobedience” by their government agents “immediately nullified” through pardons.
But justices weren’t convinced, even though the very same Taft-led Supreme Court just one year earlier made clear that contempt proceedings aren’t the same as a criminal prosecution.
Fast forward to today and the highest ranking trial judge in D.C. is struggling to rein in a White House that is openly mocking his orders — and likely seeing few options on the horizon.
Noll said Boasberg’s best option may be outside of his courthouse.
“If we assume [Stephen] Miller and the executive branch remain defiant … the strongest thing Boasberg can do is draw attention to their lawlessness, which ultimately would lead to public pressure to return the immigrants and maybe even lead to impeachment proceedings,” Noll said.
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Jose Pagliery is a reporter at NOTUS.
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