'Possibility of imprisoning someone': Judge outlines what could happen if Trump does not comply

11 February

There are possibilities for recourse if President Donald Trump refuses to comply with a court order, a retired federal judge told NPR on Tuesday. This analysis comes after a judge in Rhode Island found Monday that the Trump administration violated a court order demanding that the president restore federal grant funding.

Nancy Gertner, a retired federal judge who was appointed by President Bill Clinton, explained potential options to NPR’s Leila Fadel. Gertner has also consulted on several lawsuits filed against the Trump administration.

Gertner said it was not normal for someone to violate a judge’s order.

“It's unusual that someone will have violated the rule that he just — the order — that he just put in place almost the week before,” she said. “I mean, that's certainly unusual, unusual to call out a party that is not paying attention, that is not following the rules that he's laid out, that is unusual. Doesn’t happen all the time”

Fadel asked what could happen if a president ignores court rulings.

“Well, the court, a judge, has tools available to him or her,” Gertner said. “In the first instance, they can cite the parties in front of them for contempt. They can impose fines, of course. Since one of the parties arguably here is Elon Musk, it's not clear that fines are going to make a particle of difference. There's even the possibility of imprisoning someone until the order is followed.”

But these options aren’t necessarily viable.

“All of these are obviously empty threats with respect to the defendants," she said. "In this case, the marshals would have to enforce whatever orders the judge entered. The problem is that the Marshals Service is under the Department of Justice, and if Trump wanted to fully not comply, he could direct the Department of Justice not to comply.”

“At that point,” Gertner said, “you have a full on constitutional crisis. You have one branch of the government ignoring the legitimate comments, the legitimate orders, rather, of another branch.”

Gertner argued that Trump’s actions around this court case show he is in the midst of a power grab. “Let me also say the other thing available to Trump, because he doesn't agree with the judge, is to appeal, and so to some degree, hastening a constitutional crisis says something about what he's trying to do, which is more about showing his power than it is about following the law.”

“The question is whether or not Trump is exercising power in a legitimate way,” Gertner said of the number of lawsuits being brought against Trump.

“These cases are essentially saying there's nothing remotely legitimate about what the president is doing under these circumstances," she said. "I can't emphasize enough how difficult it is for a judge to enter a temporary restraining order, which is the case. In these cases, you have to find the likelihood of success on the merits, and you have to find irreparable harm, and the bar is high. It says something about how far Trump has gone from what the legitimate lawmaking function is in these cases that judges are doing this."

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