Could Trump Officials Be Prosecuted? What To Know After Judge Finds Evidence Of Criminal Contempt For El Salvador Flights

Judge James Boasberg ruled Wednesday the Trump administration likely committed criminal contempt by flying migrants to El Salvador despite a court order forbidding it, raising questions about what consequences Trump officials could face for ignoring court rulings—and whether President Donald Trump’s pardon power could help negate any potential punishments.

Attorney General Pam Bondi (L) talks with Secretary of State Marco Rubio during a meeting of … More governors at the White House on February 21.

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Key Facts

Boasberg ruled Wednesday there’s sufficient evidence to suggest the Trump administration “willfully disobeyed” his March 15 order, which barred the Trump administration from deporting migrants under the Alien Enemies Act.

The Trump administration announced on March 16 that flights deporting more than 200 people to El Salvador had already taken off before Boasberg ruled and the judge lost jurisdiction over the flights once they left U.S. airspace, but Boasberg struck down those arguments Wednesday.

Boasberg said the government’s argument intentionally mischaracterized his “clear and unequivocal” ruling stating the Trump administration could not let the migrants leave U.S. custody, regardless of whether or not they had already left the country.

Boasberg’s ruling was the first formal ruling stating the Trump administration likely intentionally violated a court order, teeing up the possibility that he—or other judges in the future—could punish specific Trump officials for contempt of court as a result of defying their rulings, though Trump himself remains immune from facing both criminal or civil liability for his acts in office..

Boasberg suggested Wednesday he intends to try and hold administration officials in criminal contempt—in which defendants are subject to criminal prosecution as a result of their defiance of the court—but other courts could decide to hold officials in civil contempt, which means they would face civil penalties like fines or imprisonment to force them to comply with rulings.

But Trump could help lessen the blow of any criminal punishments: Trump’s DOJ wouldn’t necessarily prevent officials from facing criminal penalties, as private lawyers could be appointed to prosecute any contempt allegations, but the president likely still would be able to pardon anyone convicted of contempt, legal experts told Forbes.

Plaintiffs in other cases have raised similar concerns, particularly in the case of Kilmar Abrego Garcia, a legal immigrant whom the Trump administration has admitted it deported to El Salvador due to an administrative error, as Garcia’s attorneys have asked Judge Paula Xinis to hold the government in contempt for not complying with a Supreme Court ruling ordering the White House to facilitate Garcia’s return to the U.S.

What To Watch For

Boasberg said Wednesday the Trump administration must say by April 23 whether or not they plan to try and erase the contempt charges. If they do want to try and comply now with Boasberg’s March 15 ruling, the government must say by April 23 what steps it’s taking to do so, which the judge noted would most likely be by transporting the migrants it deported to El Salvador back into U.S. custody. If they don’t want to do that, the government will have to submit sworn declarations by April 23 indicating which specific officials were responsible for making the decisions to keep the flights going to El Salvador, rather than turn them around in compliance with Boasberg’s order. Boasberg would then move forward with prosecuting those officials for contempt. The Trump administration, for its part, said Wednesday it will “immediately” appeal Boasberg’s contempt ruling, though it’s unclear when an appeals court could rule on the issue.

What’s The Difference Between Civil And Criminal Penalties?

Judges hold parties in civil contempt in order to compel them to comply with a court’s action, imposing consequences designed to force them to follow the court. Any penalties levied are “coercive, not punitive,” Frank Bowman, a former federal prosecutor and professor at the University of Missouri Law School, told Forbes in an email, noting that could include consequences like levying escalating fines on a party or putting them in prison until they comply. Those punishments go away as soon as they follow the court, which Bowman notes means, “If a Trump aide does something contemptuous that can’t be undone, the civil remedy may be useless.” Criminal contempt is instead used to punish someone for acting in defiance of a court, rather than get them to comply. That’s a formal criminal charge that is punishable under federal law in most cases by up to $1,000 in fines or up to six months in prison.

Would Trump’s Doj Prosecute Officials For Contempt?

The Trump-controlled Justice Department is unlikely to prosecute any of the administration’s own officials for contempt, particularly for defying court orders in cases the agency itself is handling in court. But that doesn’t necessarily stop Trump aides from being prosecuted. Federal law states contempt charges should be prosecuted by the government, “unless the interest of justice requires the appointment of another attorney.” That means if the government refuses to prosecute someone—as the Trump administration likely would—the court would then appoint a different attorney to prosecute the contempt charges. Doing so would be “relatively novel at a trial court in a criminal case,” Mark Osler, a former federal prosecutor and professor at University of St. Thomas School of Law, told Forbes, noting the more common scenario is private attorneys taking over for the DOJ in civil cases they withdraw from in appeals courts. Boasberg noted in his ruling Wednesday he would appoint an outside prosecutor should the Trump administration refuse.

Can Trump Pardon Officials Who Are Held In Contempt?

Trump cannot pardon anyone who’s held in civil contempt of court, which Bowman told Forbes makes that “the only contempt remedy that could be effective” for levying punishments on Trump officials. Rep. Jamie Raskin, D-Md., the ranking member on the House Judiciary Committee, suggested in a recent letter to Trump the president could have difficulty pardoning any aides for criminal contempt as well, claiming the president may be “unable to pardon a federal employee” for contempt “because such an offense may not qualify as an ‘offense against the United States.’” (The Constitution gives presidents the “Power to grant Reprieves and Pardons for Offences against the United States.”) Some legal scholars have also questioned the pardon power for criminal contempt more broadly, protesting Trump’s pardon of Arizona sheriff Joe Arpaio for contempt during his first presidency by claiming pardons for contempt unlawfully undermine the judicial branch. Judges need to be able to have the power to punish people for contempt in order for the court system to effectively function, the thinking goes, with scholars also arguing it violates the separation of powers between branches of government. That suggests any pardons Trump does make could be challenged in court, leaving it up to judges to decide whether the moves are allowed. Bowman disputed there would be any legal issues with Trump pardoning aides for contempt, however, telling Forbes about the legal arguments against contempt pardons, “I don’t think they fly.” “Presidents have issued many pardons for contempt since at least the 1800s, and the Supreme Court has specifically held that criminal contempt can be pardoned,” Bowman noted.

Why Can’t Trump Be Punished For Defying Court Orders?

While his aides could be punished for defying any court rulings, Trump himself is shielded from facing any criminal or civil penalties for acts he takes as part of his duties in office. The Justice Department has long had a policy not to prosecute sitting presidents on any kind of criminal charges, and the Supreme Court last year extended that immunity to say Trump and other presidents also cannot face criminal charges after they leave office for actions that were part of their official presidential duties. That means if Trump were to act against a court order by doing something that was within his official capacity as president, it would be up to Congress to impeach him and remove him from office, versus him possibly facing charges in court. Trump also can’t face any civil punishments for his official duties, as the Supreme Court similarly ruled in Nixon v. Fitzgerald that presidents can’t be held liable in civil cases for actions they undertook as part of their official duties.

Key Background

The possibility that Trump or his aides could defy court rulings has become a growing fear among critics of the president in the months since he took office, as judges have increasingly imposed rulings blocking his policies. Those rulings have led to outcry by Trump and his allies that judges are abusing their power and don’t have the authority to overrule the president’s actions, with Vice President JD Vance saying in February judges “aren’t allowed to control the executive’s legitimate power” and GOP lawmakers filing longshot articles of impeachment against judges who issue unfavorable rulings. Boasberg’s March 15 ruling has become a flashpoint in that debate, as reports suggest Trump officials intentionally ignored the judge’s ruling by not turning around the flights to El Salvador, believing Boasberg couldn’t control flights that were already in the air. Garcia’s case has further compounded fears among Trump critics that the White House will defy the rule of law, as the government has declined to give any indication they intend to facilitate Garcia’s return to the U.S. as the Supreme Court requested—instead just claiming their hands are tied because he’s now under El Salvador’s jurisdiction. Trump officials have broadly denied they’ve intentionally violated any court rulings, and have also taken pains in other cases to note the government is complying with rulings that it doesn’t like. Trump told Fox News host Laura Ingraham in March he “never did defy a court order” and suggested he didn’t intend to going forward, saying, “No, you can’t do that.”

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