Lawfare Archive: The Public Integrity Section, Threats, and Criminal Contempt with John Keller

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Lawfare. I'm Marissa Wong, Internet Lawfare, with an episode from the lawfare archive for May 30th, 2020-6. On May 27th, the Department of Justice reportedly opened a criminal investigation into E. Jean Carol, and whether or not Carol perjured herself in the course of her civil lawsuit

against President Trump in 2024, in which Carol accused Trump of sexual abuse and defamation,

and won a $5 million civil judgment against him.

The new inquiry seems to be the latest chapter in the president's continued use of the Justice Department to investigate and pursue his political adversaries. For today's archive, I chose an episode from May 27th, 2020-5. In which James Pierce sat down with John Keller to discuss how the Trump administration's proposed changes to the public integrity section, can hinder the Justice Department's ability

to investigate corruption matters fairly and impartially. It's the lawfare podcast. I'm James Pierce, lawfare legal fellow, with John Keller, recently of the Justice Department, and now a partner at Walden, Moch, and Aaron.

“You have to show, kind of, an enhanced or an elevated man's ray of the defendant knew exactly”

what they were doing, that they knew that they were violating a clearance-specific order, and that they pushed forward and did it anyway, purposefully, willfully. Today we're talking about potential changes at the public integrity section, whether Jim Komi, Threat, and the President, and Criminal Contempt. When I reached out to you, when we reached out to you, the Ice Age is a whole week ago

to bring you on the podcast. I think we had talked about focusing on criminal contempt, an issue that's come up particularly in the JGG, the Alien Enemies Act case in front of Judge Boesberg, and we certainly want to get into that and focus on that today, but a couple of other things have happened between whatever that was last Monday, and today, including reporting over the weekend

that the Justice Department is considering some changes to the public integrity section you are home for many years in the government, as well as some reporting not unrelated, one might say about a potential prosecution of former FBI director Jim Komi in connection

“with, I think, a posting on Instagram, maybe some seashells, spelling out, the phrase '86,”

'47, get rid of the '47's President Donald Trump. So, love to get your thoughts on all of those.

Let's start with the first of those two more recent developments.

So, according to a Washington Post article over the weekend, as I mentioned, it sounds like there may be movement of foot to change some things about consultation requirements

Can you help us understand exactly what the public integrity section was, why it came

“into existence, and I think that will provide the context to understand what these changes”

are and what they might mean? Yeah, the public integrity section is an office or was an office of investigators and prosecutors based out of Washington DC with nationwide jurisdiction to handle matters involving abuses of the public trust by government officials, and later that mandate included all election crimes cases as well, so anything involving campaign finance offenses or

ballot fraud or other corruption of the election process. The section was established in 1976 in the wake of the Watergate scandal, and there was input

from Congress, the section, the Attorney General was required to report to Congress every

year on the activities of the section, and the idea was after Watergate that there would be a dedicated office within the Department of Justice that would have a core of expertise

“in handling investigations and prosecutions of public officials at all levels of government”

all the way up to the highest office in the land, and that the office would be staffed with career officials that would be insulated to some extent from political influence and political pressure in these sensitive kinds of cases. So that's helpful background, and I should say, as a disclosure to our listeners, you and I have worked together, I spent a couple of years working with you at the public integrity

section, so I have some experience, but certainly not as much as you do.

So give us a sense of what that means, and for purposes of these questions, let's just kind of assume no policy changes, and certainly the reporting hasn't suggested that any have taken place, though, as we may talk about, there have been some changes to the section under the current administration, can help us understand how the public integrity section

“interacts or interfaces with U.S. attorney's offices throughout the country, right?”

I mean, any of these potential investigations are going to happen somewhere presumably in the United States or have ties to some district out of the 93 or 94 federal districts. How does the public integrity section work either with the U.S. attorney's offices or with other sort of litigating sections within the justice department? So the section has two primary functions.

One is to investigate and prosecute cases either on its own independently or in cooperation with another office of the department, whether that's an office at handles, other specific subject matter areas, it at main justice in DC, so you've got the narcotics and dangerous drug section, you've got the violent crime and racketeering section, you've got the money laundering section, so either with one of those sections, or as you mentioned, with one

of the United States attorney's offices across the country, actually investigating and prosecuting in court matters involving abuses of public trust or election crimes, that's one function. The other function is to consult and advise and in some cases approve matters that other offices in the department are handling, that the public integrity section is not itself prosecuting in court.

So any matter involving election crime requires a consult with the public integrity section to ensure a degree of consistency and that subject matter expertise is brought to bear in a sometimes esoteric area of campaign finance or ballot fraud, and there's a similar requirement in congressional investigations. So any U.S. attorney's office or main justice component investigating a member of Congress

for criminal violation has to consult with pin and get pin approval to take certain steps. Issue certain legal process, file charges, enter into a plea agreement, and again, that is to ensure some consistency nationwide and to ensure subject matter expertise. There are kind of nuanced areas involving a little known constitutional clauses, including the speech or debate clause, which, as you know, provides a privilege to members of Congress

for anything and any speech or debate in either house that can't be used against them criminally. They can't evidence of their legislative acts cannot be used against them in criminal proceedings and they can't be charged for things that they've done in their legislative capacity in short. And so because of these areas of law that are not often litigated and the need to protect

precedent and ensure consistency, the public integrity section has a role also to ensure

individual district that is led by a political head of that office, a U.S. attorney that

“is appointed by the President of the United States, the public integrity section, as I think”

I mentioned, has no political appointees in it. The head of the section is a career prosecutor. And so again, to ensure a degree of kind of a political review and enforcement. Yeah, I think that's helpful to set up what reporting has suggested the potential policy changes are, as I understand them and I'd be curious if your understanding is any different.

The department is exploring, again, according to the Washington Post reporting, essentially

removing what I think you kind of described as the second function that the public integrity

section or pin plays, which is really this consultation requirement.

“Is that your understanding and I think, you know, you touched on this and kind of setting”

out the two roles pin plays, but if that is your understanding, what do you think the potential consequences of that type of policy change would be? So that is my understanding, and from the reporting I've seen, my understanding is that both the public integrity's consultation and approval and review role is being reviewed and perhaps reassessed and public integrity has also had the majority of its personnel transferred

out of the office so that it is now down to four or five people from what was for a long

time and office of the full office of 30 to 35 prosecutors and as part of that reduction in force, and I don't mean that as a term of art, I don't mean that people were laid off,

“but as part of detailing the majority of the attorneys out of the section, I think a revised”

division for the section that it will no longer investigate and prosecute its own individual cases in court and that it will be limited to some form of consulting or advisory role. If that role that that consultation advisory role review role is limited or is erased completely and the section is entirely shut down, and I think in in combination with the idea that the section will no longer be prosecuting these cases, it means that U.S. attorneys' offices

on their own independently will be making decisions in these highly sensitive, sometimes politically charged matters, and those are decisions from whether or not to open an investigation to whether or not to file charges to whether or not a certain plea agreement is appropriate in a given matter, and those decisions have serious consequences. When the Department of Justice opens an investigation, if that news is made public or is leaked, there is a widely held belief in the

public that an investigation was open for a good reason and someone has probably done something wrong. You know, for better words, the presumption of innocence being what it is, that is still I think a widely held kind of public belief that when the Department of Justice is investigating somebody, it means they probably engage in some kind of misconduct. And so part of public integrity's role was to make sure that we were only opening criminal investigations when there was sufficient

predication to do so, sufficient basis to believe that a crime had actually occurred before just opening a grand jury investigation, launching subpoenas, dragging people into testify, and potentially really harming some high-profile figures, reputations. We wanted to make sure the matters were properly vetted before that kind of step was taken. Let alone say nothing of the more serious step of actually charging someone with a crime and potentially prosecuting them and convicting them in

court. Let me jump in just to play a little bit of devil's advocate and maybe this is something you'll address in just a moment. But, you know, one response to what you're saying may well be listen, there are, as we just said, many U.S. attorney's offices throughout the country, many of those U.S. attorney's offices are staffed with experienced prosecutors, experienced public corruption prosecutors. The section public integrity may be going away, but the justice manual, presumably,

is still there and has certain guidance. Why isn't it enough that we've got these matters being handled individually in the U.S. attorney's office? What is? Maybe to put it somewhat across the sort of the value add that the public integrity section brings, that a lot of these

Yeah, that's a good question and a fair point. And I don't mean by anything I've said to

dismerge the reputation or for abilities of any of the prosecutors in the U.S. attorney's offices around the country, certainly as you say, there are experienced and capable prosecutors in all of those offices and many of those offices handle matters of the greatest sensitivity

“and do an exceptional job of that. But what I think you lose if you get rid of public integrity”

is all of those offices, as I said before, are run by a political figure. They are run by a presidential appointed and Senate confirmed U.S. attorney. And those U.S. attorneys are inherently political. That role is political and those individuals are often people who have had political careers. And so they are subject to local and national political pressure and their own kind of political ambitions. And the public integrity section is removed from that environment

and is able to make decisions I think in a very kind of cool and calm and calculated and objective

manner or not always make all of the decisions but at least provide advice and guidance in that

manner. And so is an important check or additional voice on actions that a politically charged U.S. attorney's office may want to take even and even where there isn't a political aspect to an investigation or a charging decision that in a U.S. attorney's office, you still have the issues of consistency and subject matter expertise. So part of justice is fairness and you don't want to have one high profile matter handled in one district in one manner and then a very similar

“matter handled in another district in a completely different manner. Because I think that undermines”

kind of faith in the department. And so that's another important role that public integrity played is ensuring that these matters were handled consistently. And then the last thing is subject matter expertise as good as every U.S. attorney's office is as good as the prosecutors are in U.S. attorney's offices. There is no U.S. attorney's office that has what the public integrity section had previously, which was dozens of prosecutors who were solely dedicated to public corruption

and election crime matters. And we're extremely well versed in that law. And so again, this is not to suggest that a U.S. attorney's office couldn't go it alone or figure it out on their own.

But it is always helpful to have subject matter experts in the room talking through issues,

spotting potential problems and vulnerabilities and trying to make the investigation prosecution

“and the decision making as informed as possible. I think that's actually a great segue into the”

second of the more recent topics that we wanted to discuss with you, which is maybe trying to deploy some of your subject matter expertise or the kind of experience that you brought when you at the public integrity section to what has been reported as a potential prosecution of former FBI director James Komi. So, according to reporting, as I mentioned, a bit earlier, and as I'm sure many people have seen, Komi through Instagram put up an image of seashells of 86-47,

which is, as I understand it, get rid of, maybe more aggressively kill or do it do away with, 47-47's president Donald Trump. So, you know, if we're not going to say U.S. terms, obviously let's just say within the public integrity unit, somebody had stumbled across this and said, you know, what would be your take on whether there is something worth investigating here, what type of whether it's a statute or legal theories might you explore? Is there a case here?

How would you go about tackling that? And maybe I'll try to tee up something more concrete for you. I think a lot of reporting is suggested this is something akin to a threat, a threat to to assassinate or harm the president. How would you analyze this situation? The most commonly used statute for a fact pattern like this is 18USC, 1875C, which is a threat statute, an interstate threat statute. That's widespread. It's because it's a

And so that's the framework under which we would at public integrity analyze a fact pattern

“like this allegations like this. And just to me, just jump in, I think it's also the case,”

if I'm not mistaken, that 871, which you may or may not have in front of U.S. a specific threat statute with respect to the president of the United States, right? So, either of those, I mean, the president also happens to be a person. So, either if those would be in the ballpark, but that's a, that's a president's specific threat statute. No, that's, that's absolutely correct. And would, would be more fitting for this fact pattern. But the, but the analysis in terms of

the elements of the offense and what conduct and level of men's rad that the government have to prove is essentially the same in both. But, but you are, you are one hundred percent correct that because of the victim here, would be the president of the United States 871, would, would be the operative statute, although you could, you could probably bring 875 as well. But, so the kind of gatekeeping questions that we would have in terms of,

is there even something worth investigating here, would be, does the communication constitute a true threat? And so, as, as a legal matter, as a term of art, a true threat is something that has been defined by the, by the Supreme Court, as a communication that is, that is outside the bounds

of the protections of the first amendment for free speech. And so, once a communication crosses

this line into a true threat, it is no longer protected by the first amendment. And so, the first question is, okay, well, what's a, what's a true threat? A true threat is defined in, in this Supreme Court case, Virginia V. Black, as a serious expression of an intent to engage an act of unlawful violence against a particular individual or a group of individuals. So, unpacking that a little bit, you start with a serious expression. And the Supreme Court has said over, over the

course of, of a number of cases over the decades in this area, that a serious expression means something that is not parody, it's not intended as a joke, also something that is not political

“hyperbole. And that, that latter point, I think, is especially important here in a Vietnam War”

error case, Watts of the United States. The Supreme Court was confronted with a Vietnam War draft protester, who said something along lines of it a protest, if they ever make me carry a rifle,

the first man I'm going to get my sights is LBJ, the president at the time when it

would be Johnson. And in this case, he was convicted in the lower court of a, of making a, a threat against a president. And the case went all the way up to the Supreme Court and the Supreme Court reversed a conviction and said, basically, that this was maybe a poorly, a poor choice of words, but essentially was political criticism of the president based on the draft. And that our country has a longstanding and firm commitment to protecting political criticism of our government.

And so when I, her hyperbole is used, in order to, to, to make that criticism, we're not going to punish that criminally. We don't want to chill that kind of speech. And so here, you know, 86-47, a communication sent by the former, the former head of the FBI is clearly in a political context. So that's, that's one issue to grapple with. The other is, is it even conveying an intent to

“engage in violence? And I think, I think it's arguably ambiguous. Does 86 mean, you know, impeach the”

president, get rid of the president by voting him out? Yeah, let me, let me stop you for a moment. I mean, what does 86 mean to you? I mean, I sort of stumbled a little bit over the, like, I'm curious, kind of, if somebody says, let's, let's 86 this or let's 86 them. I mean, like, what is your, what is your instinctive view on, on what that actually means as, for, you know, for practically? Yeah, I don't know how helpful this context is going to be, but 86, to me,

has a very specific meaning in context, but it's because I grew up waiting tables. And so when we ran out, when the restaurant ran out of a certain item on the menu, it was 86, whatever it was, 86, garlic mashed potatoes, 86 onion rings. And so it, you know, when I hear that phrase, it means to me, well, we're out of a lot, we don't have loads anymore, get rid of them, you know, cross them off the menu. So, you know, that, that, it's hard to maybe map that onto, onto this context.

take much of a leap to interpret it as, as potentially advocating some kind of violent action.

But it's very, it's, it's facially ambiguous. So, when we're confronted with something that's facially ambiguous, we have to look at the context. If it's facially ambiguous, are we going to investigate it to figure out, you know, which interpretation is correct or was intended, or are there clues on the face of the communication itself that allow us to make an determination

“that this is pretty clearly not intended as a violent communication. And here, I think those clues are”

one, it was posted by the former head of the FBI. So, presumably, although not guaranteed, but presumably, the former head of the FBI is not intentionally engaging in criminal threatening activity and didn't intend it that way. But, but, you know, that, again, that's not a guarantee.

So, we can't stop there. So, the second question is, well, how was the matter? How was the

communication posted and delivered? Many times in the threats space and public integrity handled a lot of this kind of case in, in the wake of the 2020 election when there was widespread hostility directed at election officials when they were scapegoated as being, you know, supposedly a part of some kind of conspiracy to swing the election or change the election results, which was completely unfounded, by the way. Public integrity was also involved in vetting those allegations of fraud,

and they were, they were completely unfounded. There was no fraud in the 2020 election that was targeted at swinging the election, the presidential election. And so, and so, we, we can front,

these kinds of issues where you have a kind of facially ambiguous threat. And almost always,

if someone is intending malice, real physical malice, physical harm, they deliver the communication in a way that is at least somewhat anonymous. They either use a Twitter handle that is not their true name or they use an email address through a, through an email provider that maybe is overseas, they try to anonymize and mask themselves in some way. Just to, just to be clear, that's not a legal element, right? But that is, as you're saying, in your experience for someone who's genuinely

“trying to communicate a threat, often a way of, of going about it. Do I have that right?”

That's exactly right. And it's just another piece in, in the kind of contextual analysis of is this something that, that warrants a federal criminal investigation. And so, again, the fact that you have the former head of the FBI with law enforcement experience and some knowledge of the law certainly, and you have him doing it publicly and not trying to mask himself or not amise himself in any way, suggest that his contemplation or understanding of 86 was not in, in, in terms of violence.

And he didn't intend it as a threat of violence. And so, I think we probably, public integrity wouldn't have even opened this case for a federal investigation. If we did, and it sounds like the Department of Justice without involvement of the public integrity section has opened an investigation,

“at least here. I think it is a very poor candidate for prosecution, not only because of some”

issues that we've talked about, but also because it has to be, in order for something to be a true threat, it has to be a serious expression of the, of the speakers intent to engage in active violence. And something as, as kind of vague as 86, 47, even if you're going to assume there was some consideration of violence in that post, was it that Komi himself was going to engage in some kind of violence for the president? Was he, was he suggesting that others generally should engage in some

kind of violence toward the president? Was he suggesting that some specific group of people should engage in some kind of violence toward the president? The, the post is so vague that it would be difficult to prove that the, that the, that the communication met the objective test for a truth threat that it was, that it was an expression of it intent by the speaker to engage in violence him or herself or direction toward others working in concert with the speaker to engage in violence.

Yeah, and let me, let, let me just pause on that, that point that you just made at the end there and, and also alluded to of, of directing others. So I, I think, you know, someone else might ask or, or another potential theory of prosecution beyond a true threat would be, as you said, inciting or arousing others to try to go and, and carry out violence. Talk to me about how under, what, what we think of as the Brandenburg Insightment Theory, you know, how would you analyze

Insightment is generally speech or a communication that the courts are looking at and they're,

they're making a decision. Is this entitled to first amendment protection, which is very broad,

“especially in the political arena? Or is it not? Does it cross the line into criminal speech?”

And Insightment is different from a true threat in that you don't have to have the intent to engage in the violence yourself, as, as you just mentioned, and as most listeners probably understand, Insightment is, is the crime of encouraging others to engage in criminal activity. And so on this fact pattern, but, but the elements that have to be proven for Insightment is that you are encouraging others to imminent lawless action that is likely to result based on your words and the context.

And so here, the question would be, does 86-47, the post on Comet's Instagram account,

does that encourage others to imminent lawless action, to imminent violence against the

president, immediate violent action against the president that is likely to result based on this relatively vague and ambiguous post? And I think the clear answer, even clearer to me than the true threat answer, is no in terms of Insightment. So let me ask this, if you've got any

“examples that you're fingertips, I think you mentioned a little while ago, having been some work”

with elections sort of threats task force and having done, it sounds like quite a lot of analysis of threats, I think you mentioned some in connection with the 2020 election and allegations of fraud there. I mean, can you think of any any cases or obviously things that are, that are, that are public, that does or did meet the department's view and we're actually prosecuted as true threats as a kind of compare and contrast. And you may not have any at your fingertips, but

you know, I thought it was helpful earlier to hear you kind of lay out some of the criteria or some of the contextual factors that you often see when you actually, you see a genuine objective intent to cause harm on whether it's a public official or otherwise. You know, anything that comes to mind that you could use to to give a sense of, you know, what does meet the criteria of a true threat that's that's subject to prosecution or has been prosecuted whether by the public

integrity section or after its consultations? Yeah, a couple of examples going to mind. There was one a prosecution of a woman named Caitlin Jones in the Eastern District of Michigan that public integrity joined with the US Attorney's Office and Caitlin Jones had made a threat against an election where a number of threats against an election worker in Michigan after the 2020 election. And there were a barrage of contacts and posts both verbal and also through imagery. Some of them

rose the level of or eventually kind of escalated to include things like, you know, your daughter and then using the daughter's name, sure is beautiful, it would be terrible if something happened to her. And then a picture of a mutilated body. So something like that, again, while the language itself is somewhat vague and ambiguous, it would be terrible if something happened to her. It doesn't really say I'm going to go harm her. It's got that classic kind of mafia, so sort of implicit suggestion of

threat. A threat at a minimum. And then when a company with an image of somebody who's been

“mutilated, you know, I think the intent is clear. And so, you know, that's the kind of thing that”

clearly evinces and intent to communicate a threat. It doesn't necessarily mean that the speaker was going to actually carry out the threat against the daughter. And maybe I should have said earlier that that is no part of the true threat analysis, the the crime of an interstate threat or a threat against a president is not to discourage actual violence against the victim or the president. It's to discourage the threat of violence against the victim or the president.

And so again, turning back to the example in Michigan, the kind of pattern of repeated contact, the hostility, there was implicit in the contacts and then leading to some of these kind of egregious examples where they're threatening the daughter and using imagery. That's a clear threat. There was another one which is maybe a little bit closer to the line, but a threat against an election official in Arizona where the defendant said something like, if you don't, you know,

de-certify or change the election results or if you don't get with the program, something like that,

you know, your ass will never make it to your next little board meeting.

You know, that taking the light most favorable to the defendant could

because you will be voted out of office or you will be fired or you will be criminally investigated and jailed, maybe, but that was a voicemail threat. And so you had the context of the speaker's voice to help inform the decision there and it was a, it was a hostile call in my view. And you also had the listener reaction, which is a factor that courts have said is important in considering when a matter is kind of truly borderline. And there the victim cook it as a

“physical threat, I think, understandably. You know, those are kind of two different ends of the”

spectrum. One, I think, is most people would readily agree, be ashamed of something happening your beautiful daughter, picture of mutilated body. That's a threat to harm your daughter.

You know, you better get with the program or your ass will never make it to your next little board

meeting. Maybe a little bit closer to line, maybe a little bit more of a, of a tribal case there. But both of those, I think, show a clear, a clear degree of first person kind of involvement and intent and also a degree of physical menace that is not present on the face of the Komi's 86-47 post. And in C-shell's, no less. All right. So I think it's, I think, you know, we've, we've eaten our vegetables and that means

we get to get to the really the main event here, which is to talk a little bit about criminal contempt and, and why we, we initially asked you to, to come on the, uh, the law fair podcast. I know you've got some personal experience having, having handled criminal contempt

“prosecutions and I, and I, uh, I think it would be, you know, I'd like to talk about that, but”

let's kind of level set a little bit first. And if you can just give a sense of what, what is

criminal contempt, how do we define it, uh, and then what, you know, what purpose does it serve? Why is there a criminal contempt doctrine? Let me, let me start with contempt generally because, um, teasing out the differences between criminal contempt and civil contempt, um, can be a little bit thorny, but contempt generally, at least as a, as a statutory matter, um, under 18 USC Section 401, is misbehavior in the presence of the court by any person,

to a degree that essentially it rises to the level of obstructing justice or obstructing the proceedings that are ongoing in the courtroom. So that's one form of contempt. The second form of contempt is misbehavior by any of the court officers. So, uh, you know, think about the courtroom deputy, or even the attorneys, uh, representing the parties in the courtroom, uh, misbehavior by those individuals in the court's presence can rise to the level of contempt. And then the

third category, which is what we're going to focus on today and what is is clearly actionable,

can be actionable as criminal contempt, is a willful disobedience of a clear and specific court order. And so this does not have to be in the presence of the court. As you can imagine, uh, court orders are issued all the time every day and the parties who are bound by those court orders, generally are not executing on the, on the direction from the court in the court's presence. They're out in the world, not doing, uh, what the court has told them not to do, or we're doing

what the court has told them to do. And so if a court orders an individual party to do something or not do something, and it's a relatively clear and specific instruction, and, uh, the party then says, yep, got you judge, I understand exactly what you've ordered me to do. And then

“goes out and does the opposite, that can be grounds for criminal contempt. And so I think you maybe”

touched on this, but so how does that differ from how civil contempt operates? And maybe you can, maybe also speak a little bit to the purposes of what criminal contempt is aimed at trying to accomplish, as opposed to what civil contempt is trying to accomplish? Yes. So civil contempt is a means to, to force compliance. In other words, civil contempt is used to force someone to do something that court has told them to do. So imagine a witness who comes into court and is, is subpoena

to testify, gets on the stand, uh, is sworn in, is asked to question and says, I refuse to testify. I plead the fifth. And the judge says, well, uh, Mr. Mrs. Jones, we've already been through this, you don't have a fifth of the matter right in these proceedings, and I'm ordering you to testify. And the witness says, well, I, I understand the order of the testify are on her, but I refuse. In that kind of situation, the court would, would most frequently use civil contempt and say,

Or I'm going to put you in jail until you come in here and testify. And as soon as the, the

contempt nor in that case, the witness agrees to testify and comes in and testify, the contempt is perched. It is, it is no longer an ongoing concern. It's no longer an ongoing matter. And so the, the whole kind of intent behind civil contempt is to force compliance. Criminal contempt, like all the other criminal statutes, is not about addressing the immediate scenario in front of the court. It's about deterrence and about punishment. And so criminal contempt is designed to address the disobedience,

the willful disobedience of a court order in order to punish that disobedience and vindicate the authority of the court and to deter others in the future from doing something similar and disregarding

“a court order. And you know, I think even as I say it, that can sound somewhat punitive and somewhat”

harsh and I could imagine someone saying, well, why, if you have civil contempt that the court can use to basically force someone to comply with what they've ordered them to do, why do you really need the additional penalty out there of criminal contempt? And my answer would be, well, the rule of law, our entire society really depends on respect for court orders and court authority. It doesn't

mean that the courts are always right and it doesn't mean that you can't challenge a court order

through the ordinary process by taking an appeal and seeing if a higher court is may overturn the lower court's decision. A point that I'll note that the chief justice has made a couple times recently, not necessarily directly, but perhaps implicitly in response to things said by either

“the president or others around him sort of suggesting that targeting judges is somehow appropriate and”

the answer being now. As you said, judges can be wrong, but there's a mechanism by which to try to suck that up. That's exactly right, but if instead of following that kind of established procedure for challenging a court order, people decide that they don't have to follow court orders and they'll just disregard court orders that they don't like because they don't like the judge or they don't like the decision or they think the decision is flawed, then the entire system

starts to collapse because people then take disputes into their own hands. If they can't rely on the judiciary and court orders to be enforced, then people are incentivized to try to get away with as much as they can and then you have essentially a kind of secondary system of vigilante justice that's happening on the street, regardless of what the judges say and so the rule of

“law just completely breaks down and so I think criminal content is there to ensure that court orders”

are obeyed unless and until they are overturned based on the judicial process. Let's talk a little bit kind of nuts and bolts in the federal system about how contempt works procedurally. So federal rule of criminal procedure 42 and it sets out the process. How does that work? What is the process if a judge believes or has reason to think a party may have committed criminal contempt? What does rule 42 have to say about that? So rule 42 essentially sets out the

procedure by which the court analyzes a situation in which there may have been contempt committed.

And what is the appropriate process is well so first of all I should say civil contempt

can be addressed summarily. The judge can simply issue an order there and then it needs to be accompanied by a written order but can an issue an order from the bench saying I'm holding you in civil contempt because you have refused to do x, y as you are disrupting the proceedings or you are obstructing justice in my courtroom. That can be meted out summarily. Criminal contempt requires more process because it's a criminal remedy and so the defendant has more protections and so part of that

is codified in rule 42. So rule 42 requires that the judge, if he or she believes that someone is engaged in criminal contempt they refer the matter to the Department of Justice for prosecution and then the Department of Justice takes a look at the at the case and makes it a termination. Do we think this actually rises to the level of criminal contempt and are we going to accept

case or declines to accept the matter to even investigate it then the court can appoint an independent

prosecutor or an independent attorney who is not employed by the Department of Justice to investigate and potentially prosecute the criminal contempt. We'll come back to that. There have been some some constitutional questions about that procedure raised but let's let's

“circle back to that. Let me ask you kind of another procedural question. What is the process?”

So let's say judge makes it referral whether or not it's it's prosecuted by the Justice Department or by a special prosecutor under rule 42. Is it typically the the the same trial judge whose order

has been violated or at least for whom a show cause order of a potential violation as occurred

is it is the case then handled in front of that judge or or does it go elsewhere? It depends but the rule does specifically provide that if the contempt at issue involves disrespect to or criticism of the judge the judge whom the matter is before then that judge cannot sit in judgment of the of the contempt matter the separate contempt matter and I think that is makes into a sense. To most of us you don't want to judge who maybe is offended and now has a

“personal contetta against the litigant to be handling their criminal contempt charges for that”

same reason though even in criminal contempt cases that don't involve criticism or verbal disrespect to the to the judge for example in a in a situation where a litigant disobeys a court order that wouldn't fall strictly within the rule 42's requirements that another judge handled the matter but many judges would not handle that matter themselves just because of the optics they don't again they don't want to be perceived as as on a personal vendetta because a litigant has disobeied them in one of their

cases and so frequently what happens is the judge makes a referral to the Department of Justice if the Department of Justice then files a notice of an intent to proceed with the criminal contempt prosecution a notice has to be provided to the defendant telling them what they are accused of doing what what criminal what conduct they are accused of engaging in that rises to the level of criminal contempt and then the matter is assigned to a judge and and generally again the judge

that refer the matter to the Department for for consideration of contempt charges refuses himself or herself or or just has the matter go back on the wheel so it could be assigned to a different judge in the district and sometimes you could even bring in a judge from outside the district to handle the matter if it was they could seem controversial enough all right that's that's

“great and and I think it will be helpful to to apply those those principles and understandings”

to the the JGG case the alien enemies case in front of judge Boesberg but before we do that can you talk a little bit about your experience I believe as the the lead prosecutor handling a criminal contempt case against the former sheriff of Maricopa County Joe Arpio a case

that is many listeners may recall ultimately ended with a presidential pardon during the first

Trump administration but that's kind of the end of the story you talk a little bit about sort of what you've been discussing here the criminal contempt principles subsequently and procedurally and how that played out in the apio prosecution. Sure just as just as an illustrative example kind of as a as a comparison point I'm happy to talk about that briefly somewhat interestingly I guess that matter also involved dispute with a court over immigration so the

defendant in that matter Joe Arpio was the sheriff of Maricopa County which is the county that includes Phoenix in Arizona one of the most popular counties in the country and had a large sheriff's office and because they were in Arizona Arizona has been ground zero for a lot of immigration enforcement and sheriff Arpio on under sheriff Arpio leadership the sheriff's office in Maricopa County had taken a very aggressive stance with respect to enforcing immigration law.

There there is no state immigration law it is a federal law and so generally state and local law enforcement don't have authority to enforce federal immigration law there are there are some mechanisms by which they can essentially be deputized and assist immigration federal immigration authorities with

enforcing federal immigration law. Sheriff Arpio did enter into one of these agreements where again

as a shorthand his officers were essentially deputized to assist ICE in carrying out and enforcing immigration law. He was sued by a number of plaintiffs a class in Arizona for racial profiling for engaging in racial profiling as part of this effort to enforce immigration law and the result of that lawsuit was one of the ultimate results but but during the course of that lawsuit federal judge Judge Snow in Arizona entered a preliminary injunction saying sheriff Arpio you

can no longer enforce immigration law during dependency of this lawsuit you cannot and more specifically

you cannot detain individuals solely on suspicion of illegal status. So if you pull somewhat

over for traffic violation you can issue them a ticket and if you if your officer are investigating a state crime they can arrest someone for violation of state law regardless of what you believe about their immigration status but if you encounter someone for example on a traffic stop who has not violated the law you cannot hold them you cannot detain them and call ICE and have ICE the immigration customs enforcement come and seize the person to initiate deportation proceedings or immigration

proceedings that was deemed to be an unlawful seizure under under under the Fourth Amendment. So Judge Snow says you can't enforce immigration law at least during the dependency of this lawsuit until we get to the final stages and Sheriff Arpio goes out and addresses the median says

“why no that's what the judge said but we're going to keep doing it anyway and that in fact”

you see a number of instances in which there are enforcement actions taken by his office where they are detaining people and turning them over to ICE where there are no state charges and no probable cause to believe that the state crime occurred and so after a series of those incidents Judge Snow then referred the matter for criminal contempt and referred the matter to other

part of justice public integrity section reviewed the matter we ultimately made the decision

that we would prosecute the case and so we filed a notice that that we had accepted the the matter for for contempt prosecution and it was assigned to a different judge a different federal judge in Arizona named Susan Bolton and she then proceeded over the criminal contempt proceedings Sheriff Arpio was ultimately convicted and then as as you mentioned he was pardoned prior to his sentence saying which was the first time in history that had been defended ever been pardoned

“after being convicted of trial but before they were before they were sentenced. Great so so I think”

that's that's a helpful illustration kind of established your your bone of fetus as as the criminal contempt expert let's let's now map some of that experience and expertise onto what we have seen in the district court for the district of Colombian from a Judge Boesberg in the case the JGG immigration case alien enemies act case so so so many folks those who listened or watched the law fair have have certainly are aware of this others I'm sure

followed it as well this is the essentially the removal of individuals of Venezuelan origin deemed by the administration to be part of Trande Avagua and thus under the a proclamation from mid-march subject to immediate removal under this statute the alien enemies act from 1798 shortly shortly after the proclamation or even perhaps before in mid-march the ACLU learned about these removals quickly sought relief went in front of Judge Boesberg there's

some procedural back and forth that we don't need to talk about in terms of the relevant

“statutory framework it did ultimately go up to the Supreme Court but what I think is most relevant”

for for our purposes here is over a weekend hearing in mid-march Judge Boesberg essentially directed the administration to stop the removals while he considered the legal challenges to them as I mentioned that that is separately what up to the Supreme Court as as many will will know but for our purposes Judge Boesberg has more recently the the cases is now paused on appeal as well address issued a ruling in which he doesn't issue as I read it and I'll be curious

for your reading as well an actual show cause finding that the government has engaged in criminal

described sort of a specific clear order violation of the order and that that violation was

willful and then at the end kind of lays out potential paths that either the the purging of it or further investigation with that context what is your kind of what is your take or your analysis of whether that ruling kind of complies with how how rule 42 operates the persuasiveness of it and let's we'll bracket for a moment the appellate proceedings which we will talk about but kind of where do you see this going from here this matter if you know assume away the appellate

proceedings for purposes of that question yeah I get I'll start just by giving you my bottom line and then we can and then we can kind of step back and walk through the the reasons for it my bottom

“line is you know I think there is enough there for the Department of Justice although as a”

practical matter of course it won't be the Department of Justice but for a prosecutor to to prosecute the case as as Judge Boesburg lays out in his opinion you have a fairly clear timeline and and you have a good record of what was discussed between the parties in terms of what Joe Judge Boesburg ordered and then what and what transpired after Judge Boesburg entered that order and so you know on its face I think I think you've got a potentially prosecutable case now

that said the the fighting issue in these cases as as it wasn't our pile and as it would be here if if the case were ever prosecuted is two of the three elements which are closely related

the clearance specific order that is always the fighting issue well the the order wasn't

wasn't clear enough it was it was vague or general as to this specific point and we didn't understand Judge that when you said that you meant that we couldn't do this very specific thing we thought you were you were ordering us not to do this kind of general category of things but that we could still do this one specific thing and then very closely related to that is the is the

“willfulness problem so you really you have to show kind of and enhanced or an elevated men's”

ray that the that the defendant knew exactly what they were doing that they knew that they were violating a clearance specific order and that they pushed forward and did it anyway purposefully

willfully and so if you have maybe you have an order that does meet the definition of a of a

clear and specific order and so you can satisfy element one but it still isn't 100% crystal clear and there's enough ambiguity that the defendant him or herself can say well okay maybe it's very clear to lawyers and maybe it was very clear to you Judge and maybe it was even very clear to my lawyers but I'm not a lawyer and so I didn't really fully understand the extent of your order and so when I did what I did when I disobeyed your order I wasn't willful I didn't fully understand

that I was disobeying your order those are those are the defenses the fighting issues in these cases and I think you know I think those defenses are our our tribal here I think the you know the judge's words order and the and the governments briefing on this really tease up the issue of did judge's words prohibit just removals from that point forward and what did he mean by removals did he mean you couldn't physically transport someone out of the United States following

his order or did his order extend to if someone has already been transported out of the United States you cannot turn them over to a foreign jurisdiction. Now Judge Bolsberg says that there's probable cause to believe that the order was clear on this point and certainly extended to turning in in this case turning the alleged gang members illegally immigrants over to the Salvadoran authorities and a Salvadoran prison. Judge Bolsberg says that very scenario was

discussed in court and so it was clear from our discussions that my order even though it said removal included the scenario in which someone has already been transported out of the United States they've landed on a plane in a Salvador and they're sitting on the plane and you government you have to decide can we escort them off the plane and turn them over to Salvadoran authorities or do we have to keep them on a plane and return them to the United States? Judge Bolsberg told the

“government you have to return them to the United States that's what my that's what I'm ordering.”

Now his written order doesn't contemplate that it's as you can imagine a more concise statement and it just references removal and so the the government is saying well removal we didn't

thought that meant we couldn't take off we couldn't we couldn't transport anyone out of the country

“who was still here at the time of your order. That to me seems like the fighting issue and then”

the so whether it was clear on specific enough on this point and then the related issue which we just talked about is even if it was clear on specific enough in court in the discussions with the lawyers

where the immigration officials or the executive branch officials who ultimately made the decision

and said yeah go ahead and escort the prisoners off the plane and turn them over to Salvadoran authorities did those people understand sufficiently the extent of the order to be held criminally liable for willful disobedience. And that's a great way to end because it directly gets at my next question which is who's the defendant here exactly you know in our pile the box stopped with with the sheriff and as you said there was the press conference not long after the district court

orders saying yeah we're aware of this and we're we're going to continue enforcing immigration law I have a hard time from Judge Bozberg's opinion making sense of this and and from whatever else I've

learned about the case through through other either reporting or other opinions but you know if you're

looking at this assume for a moment you you were prosecuting this case who who do you imagine to be the the defendant that you're focusing on here this is a very interesting question on this fact pattern in in our pile the judge snow referred our pile himself along with his chief deputy and a couple of others senior high-level sheriff deputies who had been involved in these immigration

“raids post preliminary injunction and so I think it was a total of maybe four people or five”

people I should remember I don't remember exactly they were referred for chemical attempt we took a look at the at the matter and did some initial kind of fact finding and made an determination that we would only proceed accept the criminal contempt referral with respect to our pile himself for for variety factors but we felt like he had the most in-depth knowledge the the most conversations with his lawyers about the injunction and what exactly the injunction meant

and then he was the one who was ultimately giving the directives and setting the policy

to continue the immigration enforcement in violation of the of the court order we thought the people who were under him subservient to him had a potential defense that they were just following orders from sheriff our pile and then maybe they didn't really understand what the what the order required of them anyway so turning back to the judge goes for a situation he actually notes in his in his probable cause finding that he would need to do from initial fact finding to determine

who were the who are the specific individuals who should be referred for criminal contempt and he suggests that he might require some declarations be filed in court to try and help suss out all right well who were the decision makers in the executive branch who were informed about my court order and then still directed that the individuals who were on the planet al Salvador be escorted off and turned over to al Salvador in custody he says he would have to do

some fact finding it's interesting that you know the judge would is suggesting in in this case that it would be the judge doing the fact finding in court as opposed to making a referral to the department and having the department decide if there were any defendants they felt like were identifiable that could be prosecuted and noticed in in order to show cause or or notice of acceptance of the criminal contempt referral not a surprise though in some respects right I mean it's

pretty hard to imagine and perhaps this is animating judge Bozberg's thinking here when either of us are inside his head but that he would seem to contemplate because I read the order the same way his playing the role of doing kind of further factual development because it's pretty hard to imagine that a referral to the justice department would then be accepted and prosecuted as criminal contempt of the actions in this case is that that's seem right to you that's right but I

“but I I think it if you assume as we are and we assume that judge Bozberg is probably also assuming”

that the department of justice would not take up this this case they would not prosecute themselves for or prosecuted other members of the executive for criminal content then then you also have to assume that he would use the other provision of rule 42 that allows for him to appoint an independent attorney to proceed with the prosecution so if if that's where we are that he would appoint

this factual investigation in fact finding and then that independent attorney can make an independent decision about who if anyone is appropriate to be proceeded against prosecuted for criminal contempt having you know the judge inserting himself into the process even though I understand it's preliminary and he's saying I haven't made a determination about whether I'm going to refer this for for prosecution or not I just think it presents a little bit of an optics problem

to what we were talking about earlier I don't know if his intent would be well if I do

ultimately make a referral to an independent attorney then I would refuse myself and let some

other judge handle that but I'm going to go ahead and handle these preliminary matters before deciding

“whether or not to make that referral to an independent attorney maybe that's what he's thinking”

or maybe he's thinking he's going to handle the thing the whole way through but either way putting himself so centrally that so much at the center of determining who should be doing some fact finding to determine who might be appropriately referred for a couple of contests you know doesn't look great optically and I think it also feeds some of the separation of power arguments that the government is making here another perfect segue because that's I think the last topic

I want to hit before we kind of wrap things up with with final thoughts so as you as you mentioned

the government has raised objections to judge boesburg's ruling actually notice in appeal either the same day or the day after and the the cases is administratively stayed pending those appellate proceedings you both have the government noticing an appeal saying that essentially as you just alluded to John the the the the potential of appointing a special prosecutor would unlawfully unconstitutionally encroach upon the executive while at the same time arguing

that the judge's underlying order was a user patient of the executive's role in managing it for in policy the plaintiffs JGG at all have have separately in addition to opposing any kind of stay of proceedings have has filed a motion to dismiss for lack of a pellet jurisdiction we won't let that bog us down here but I do want to come back to this question of a constitutional challenge for one thing it's interesting that the government is making a constitutional

challenge because the government hasn't done that in some other situations including the Don Ziger case which we can talk about but you know how do you see the the kind of constitutional challenge here you know do you see this is something that's potentially meritorious what's your what's your your understanding of kind of how the government might articulate or does articulate why rule 42 is unconstitutional or kind of what what particular component of rule 42

“is unconstitutional yeah so let me start off by saying you know I I think that the judiciary”

is ability to kind of inherently vindicate its own authority is important to the rule of law for reasons that we talked about earlier and so I think in situations where the Department of Justice for whatever reason resources or disagreement on the facts or disagreement with the with policy refuses to prosecute criminal contempt that there are advantages to having the judiciary to be able to appoint an independent attorney to prosecute the case to vindicate the court's interest because

again if the court can't vindicate its interest and if people don't have to follow court orders the the rule of law deteriorates if not you know kind of evaporates in whole that said I think that the plaintiffs in this case and judge Boseburg because in some ways for the appellate record he is almost in the position of a litigant here are in a in a in between a rock and a hard place they're in a difficult situation because they either have to argue that the

appointment of an independent council a special prosecutor is constitutional because that independent council a special prosecutor is nothing more than or is akin to general special

councils and independent councils who are ultimately answerable to the attorney general so in

“other words to I think prevail against the separation of powers arguments that the government is”

making here in other words that the judiciary is not empowered to initiate prosecutions and certainly not to supervise prosecutions to to robot that argument the the plaintiffs in judge Boseburg have to say well we aren't the judiciary isn't supervising this prosecution we are just referring the matter for prosecution and because the Department of Justice is presumably going

answerable to the attorney general and is so it is functioning as a representative of the executive

“branch so there is not a separation of powers problem the practical consequence of that though”

as everyone knows as you know is that if the special prosecutor is ultimately answerable to the

attorney general in these circumstances it is highly unlikely that the special prosecutor will be allowed to remain in their position or do their job the attorney general who disagrees fundamentally presumably with this content prosecution will fire the special prosecutor replace the special prosecutor with someone who's views a line with the with the administration or will just kill the case through in action so that's that's the rock so then the the plaintiffs in judge Boseburg

have to turn to the hard place which is okay well maybe the special prosecutor is not ultimately answerable to the attorney general the special prosecutor is really an extension of the judicial branch

and so the special prosecutor is part of this inherent authority that the judicial branch has

under article three to enforce its orders and to ensure that his orders are complied with

“and so the special prosecutor isn't answerable to the attorney general the problem there is I think”

that runs you headlong into a a serious separation of powers conflict which is there's no other context that that I'm aware of in which a judge could initiate a prosecution let alone kind of supervised or be responsible for at least in a constitutional sense the the continuation of that prosecution I mean that is a core executive branch article two function especially here where that where that prosecution is against the executive branch I think I think a lot of courts

are going to have real pause over whether a judiciary initiated and judiciary judicial branch

led for lack of a better word prosecution is consistent with the separation of powers and so I think they they have a tough legal road ahead of them so I think that's that's well put I suppose one way if at least I were in the shoes of the plaintiffs that I might try to pitch the position

“I think it was the the the hard place the second the second case the second line they might”

pursue in other words that a special prosecutor falls outside of the executive branch and for for purposes of a contempt prosecution is within the judiciary would be one to to identify that look we're not making some broader argument that that this this special prosecutor has all of the powers to to prosecute in in any area I can't kind of start going down this avenue that avenue but it is just to vindicate the authority of the courts and is an outgrowth of this long historically

recognized role that a court has in overseeing and ensuring that its orders are complied with that's the doctrinal argument it'll be interesting to see whether in this more recent times where you have seen as some commentators have noted perhaps questions questioning the the presumption of regularity that is usually accorded to the government you've seen it in as recently I would argue as the supreme courts ruling on Friday in the AARP case again making clear that the government

is not to remove people pending further order of the court which to me convinces a degree of skepticism with the government that frankly you haven't seen from at least the supreme court in recent times so that's not a doctrinal consideration but it's it's to me not irrelevant that the courts may have some worry about their ability to police non-compliance with their orders which is a long way of kind of winding up what I hope will be just sort of final reflections for you

which is you know what is this that's going on in JGG including the conversation we've just had about the kind of the challenges of of potentially appointing a special prosecutor to investigate and if and if so determined prosecute criminal contempt you know what do you think this forboats for compliance with with orders with with criminal contempt it kind of moving forward in the next few years under this administration one of the points that Judge Bolzburg makes in

his problem cause order is that he is aware of the stakes of this matter and the sensitivity of the separation of powers issues where he is considering referring the executive branch for criminal contempt and so he he counsels that this matter should proceed incrementally nothing should be it should be any sites Supreme Court President for this idea that you shouldn't kind of

executive branch the out of purging the contempt as you mentioned and the way he says the

contempt we purged is to get the individuals back from El Salvador and bring them back to the

“United States so that they can challenge their removal and satisfy their due process rights I think”

that that potential remedy is one further problem that the the plaintiffs and Judge Bolzburg have in their separation of powers argument because I could see to your point about well what what what do I think the consequences are going forward what I think the prospects are going forward for the executive branch to abide by court orders and I think one argument that the executive branch might make is look the judiciary they do have this inherent authority we're not

disputing that article three gives them inherent authority to enforce their own orders and the

way that they enforce their own orders is through civil contempt and so their order is on the books and civil contempt is coercive it's not punitive the way that criminal contempt is and coercive in the sense that the judge is just trying to get the parties to comply with the judge's order and so the judge has this fairly significant remedy that can include fines and imprisonment on the civil contempt side they don't need the additional weapon of criminal contempt they don't need

that they don't need that hammer especially when giving them that hammer really creates a constitutional problem a separation of powers problem and so you know I could see that going forward judges are going maybe maybe more more predisposed to signal if my order is not complied with within the next 24 hours I am going to initiate civil contempt I could see that being one outcome of this back and forth in front of Judge Bosberg that judges are going to be very sensitive especially in

cases involving the executive branch to threatening civil contempt and using invoking civil contempt to try and ensure compliance with their court orders the other is you know in some ways as long

“as this is an open question unfortunately I think the administration has some they're they're”

going to re-raise this argument every time they're in this position and now they're going to have the added factor that muddies the waters on willfulness to say well it's pending before this room court on whether or not a judge can even initiate criminal contempt proceedings anyway and so when we decided to disobey that court order we disobeyed the court order because you know we understood that that the Supreme Court was likely to strike down Judge Bosberg's finding

a criminal contempt and so you know it wasn't a willful violation I think that's a bad argument but I do think it's another factor for the for the executive branch to use to try and to try and chip away at the proof that would be necessary for criminal contempt going forward assuming the Supreme Court says that judiciary initiated and appointments of special prosecutors as an arm of the judicial branch is even constitutional in criminal contempt cases.

Yeah it'll it'll be interesting to tell and as as we've mentioned the the JGG case is up before the lot of appeal at the DC circuit has been sitting there for a for a little bit so perhaps we'll get some indication of where courts are coming down on this sooner rather than later and then you know whether whether how how that applies more broadly to the whole slew of of other cases

“where issues like this are are cropping up. I think that's a good good place to to end it.”

John thanks again for joining us today. Thanks for having me I really appreciate it. The law fair podcast is produced in cooperation with the Brookings institution. You can get ad free versions of this and other law fair podcasts by becoming a law fair material supporter through our website law fairmedia.org/support. It'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you

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