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

[Intro]

John Keller: The fact that you have the former head of the FBI with law enforcement experience and, and some knowledge of the law certainly, and you have him doing it publicly and not trying to mask himself or anonymize himself in any way, suggest that his contemplation or understanding of 86 was not in a, in, in terms of violence.

James Pearce: It's the Lawfare Podcast. I'm James Pearce, Lawfare Legal Fellow with John Keller, recently of the Justice Department and now a partner at Walden Macht & Haran.

John Keller: You have to show kind of an enhanced or an elevated mens rea—that the, that the defendant knew exactly what they were doing, that they knew that they were violating a clear and specific order, and that they pushed forward and did it anyway purposefully, willfully.

James Pearce: Today we're talking about potential changes at the Public Integrity Section, whether Jim Comey threatened the president, and criminal contempt.

[Main podcast]

When I reached out to you, when we reached out to you you know, the Ice Ages, a whole week ago to, 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, the J.G.G., the Alien Enemies Act case in front of Judge Boasberg. And, and we certainly wanna to get into that and, and focus on that today.

But a couple of other things have, have, 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, your home for, 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 Comey in connection with, I think a posting on, on Instagram, maybe some, some seashells, spelling out the phrase “8647,” get rid of the 47th President Donald Trump. So love to get, get your thoughts on, on all of those.

Let's, let's start with the, the first of those two more recent developments. So according to a, a Washington Post article over the weekend as I mentioned, it sounds like there there may be movement afoot to change some things about consultation requirements with the Public Integrity Section. Can you help us understand exactly what the Public Integrity Section was, why it came into existence?

And I think that'll provide the, the, the sort of the context to, to understand what these changes are and what they might mean.

John Keller: Yeah, the Public Integrity Section is an office or, or was an office of investigators and prosecutors based out of Washington, D.C. 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, 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, the attorney general is 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, 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.

James Pearce: So that's, that's helpful background. So the, so—and I should say as a disclosure to our listeners, you and I have, have worked together. I spent a couple of years working with you at the Public Integrity Section, so have some experience, but certainly not as, as much as, as you do.

So, give us a sense of, of what that means, and, 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, there, 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. Attorneys offices throughout the country, right? I mean, and any, any of these potential investigations are gonna happen somewhere, presumably in the United States or have ties to some, 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?

John Keller: 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 that handles other specific subject matter areas at Main Justice in D.C.—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 the public trust or election crimes. That's, 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 US attorney's office or main justice component investigating a member of Congress for a 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 little known constitutional clauses, including the speech or debate clause which as you know, provides a privilege to members of Congress for anything, any speech or debate in either house that can't be used against them criminally, they can't—evidence of their, 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, in, in short.

And so because of these areas of law that are not often litigated and the need to protect precedent and, and, and ensure consistency, the Public Integrity Section has a role a so to ensure that, you know, the career prosecutors are taking a look at something that may be being proposed by an individual district that is led by a political head of that office, a a, 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 a degree of kind of apolitical review and enforcement.

James Pearce: Yeah, I, I think that's, that's helpful to set up what reporting has suggested the, the potential policy changes are, as I understand them, and I'd be curious if, if your understanding is any different, the, 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, or PIN plays, which is really this consultation requirement. Is that your understanding? And I think, you know, you touched on this in, in kind of setting out the two, the two roles PIN plays—but if, if that is your understanding, what, what do you think the potential consequences of that type of policy change would be?

John Keller: So that is my understanding. My, 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, 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 an office, a full office of 30 to 35 prosecutors, and as part of that reduction in force—and, and I don't mean that as a term of art, I don't mean that people laid off—but as, as, as, as part of detailing the majority of the attorneys out of the section, there's, I think, a, a revised vision 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, of consulting or advisory role. If that role, that that consultation advisory role, review role, is, is limited or is erased completely, the, and the section is entirely shut down.

And I, I think in, in combination with the idea that the, the section will no longer be prosecuting these cases, it means that U.S. attorney's offices on, 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, in a given matter, and those decisions have serious consequences.

When, when the Department of Justice opens an investigation, if, if that news is made public or is leaked, there is a, I think 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 or worse, the presumption of innocence being what it, is that is still, I think, a, a, a widely held kind of public belief that when, when the Department of Justice is investigating somebody, it means they probably engaged 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 in to testify, and potentially, you know, really harming some high profile figures, reputations, we, we wanted to make sure the matters were properly vetted before that kind of step was taken, let alone, you know, say nothing of, of the more serious step of actually charging someone with a crime and potentially prosecuting them and convicting them in court.

James Pearce: Let me jump in just to, to play a little bit of devil's advocate. And, and maybe this is something you'll address in just a moment, but you know, one response to, to what you're saying may well be, listen, there are, as we, as we just said, many U.S. attorney's offices throughout the country, many of those U.S. attorney's offices are, are staffed with experienced prosecutors, experienced public corruption, prosecutors. The section Public Integrity may be going away, but the Justice Manual presumably is, is still there and has certain guidance. Why isn't it enough that we've got these matters being handled individually in the, in the U.S. attorney's office? What is, maybe to put it somewhat crassly, sort of the value add that, that, that the Public Integrity Section brings, that a lot of these quite competent and capable prosecutors in the U.S. attorney's offices don't, don't already provide.

John Keller: Yeah, that's a, that's a good question and a, and a fair point, and I don't mean by anything I've said to besmirch, the reputation or, or 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 many of, in, in all of those offices, and many of those offices handle matters of the, of the greatest sensitivity and, and do an exceptional job of that.

But, 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're run by a presidentially 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, and their own kind of political ambitions. And the, the Public Integrity Section is removed from that environment and is able to make decisions I think in a, in a very kind of cool and calm and calculated and objective manner or, or not always make all of the decisions, but at least provide advice and guidance in that manner, and so is, is an important check or additional voice on actions that a, a politically charged U.S. attorney's office may want to take.

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, you know, part of justice is fairness and you don't want to have one high profile matter handled, handled in one district in one manner and, and then a very similar matter handled in another district in a completely different manner, because, you know, 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, were handled consistently.

And then the last thing is, is subject matter expertise. As good as every U.S. attorney's office is as good as the prosecutors are in, in U.S. attorney's offices. There is no U.S. Attorney's office that has, 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 were 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, and trying to make the investigation prosecution and the, and the decision making as informed as possible.

James Pearce: I think that's actually a, a great segue into the, into the second of the, of the more recent topics that we wanted to, to discuss with you, which is maybe trying to deploy some of, of your subject matter expertise or the kind of of experience that you brought when you were at the Public Integrity Section to what has been reported as a potential prosecution of former FBI Director James Comey.

So, according to, to reporting, as I mentioned a bit earlier, and as I'm sure many people have seen Comey, through Instagram, put a a, an image of seashells of 8647, which is, as I understand it, get rid of maybe more aggressively kill or do do away with 47, the 47th president, Donald Trump.

So, you know, if we're not gonna say U.S. attorney's office, let's just say within, within the Public Integrity unit, somebody had stumbled across this and, and said, you know, what, what would be your take on on whether there is something worth investigating here? What type of, whether it's a statute or legal theories, might you, might you explore, you know, is there, is there a case here? How would you go about tackling that? And, and maybe I'll try to tee up something more concrete for you—I think a lot of the reporting has suggested this is, this is something akin to a threat a threat to, to assassinate or harm the president. How would you analyze this, this situation?

John Keller: The most commonly used statute for a fact pattern like this is 18 U.S. Code § 875(c) which is a threat statute, an interstate threat statute. That's why it's federal, is because it's a, it's a communication across the state lines that includes a, a threat a criminal threat. And so that's the framework under which we would, at Public Integrity analyze a fact pattern like this, allegations like this.

James Pearce: And, and, and just let me just jump in. I think it's also the case, if I'm not mistaken, that that 871, which you may or may not have in front of you, is a specific threat statute with respect to the president of the United States, right. So I think either of those—I mean, the president also happens to be a person, so either of those would be in the ballpark, but that's a, that's a president's specific threat statute.

John Keller: 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 mens rea that the government would have to prove is essentially the same in both. But, but you are, you are 100% 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 a, 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, 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 in 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, 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 era case Watts v. United States, the Supreme Court was confronted with a Vietnam War draft protestor who said something along the lines of it, a protest. If they ever make me carry a rifle, the first man I'm gonna get in my sights is LBJ, the, the president at the time, Lyndon B. Johnson. And in this case, he was convicted in, in the lower court of a, of, 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 the conviction and said basically that this was maybe a, 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 a hyperbole is used in order to to, to make that criticism we're not gonna punish that criminally. We don't wanna chill that kind of speech.

And so here, you know, 8647 a a, 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?

James Pearce: Yeah. Let me let, let me stop you for a moment. I mean, what does 86 mean to you? I, I, I mean, I, 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 for, you know, for practically?

John Keller: Yeah. I don't know how helpful this context is gonna be, but 86 to me has a very specific meaning and 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, it means to me, well, we're out–

James Pearce: Run out of them.

John Keller: –we're not, we don't have those anymore get rid of 'em, you know, cross 'em off the. So, you know that, that it's hard to maybe map that onto, onto this context. I, I, I guess for me the point is it has no connotations of violence, but, but I understand how it doesn't 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 you're, when we're confronted with something that's facially ambiguous, we have to look at the context. If it's facially ambiguous, are we gonna 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 a 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, not guaranteed, but presumably the former head of the FBI is not intentionally engaging in, in criminal threatening activity and didn't intend it that way.

But, but you know, that, again, that's not a, 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, at swinging the election, the, the presidential election. And so, and so we, we, we confront these kinds of issues where you have a a 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, 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, they try to anonymize and mask themselves in some way.

James Pearce: Just to, just to be clear, that's not a, a legal element, right, but that is, as you're saying in, in your experience for someone who's genuinely trying to communicate a threat, often a a, a way of, of going about it. Do I have that right?

John Keller: That's exactly right. And it, 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, and some knowledge of the law, certainly, and you have him doing it publicly and not trying to mask himself or anonymize himself in any way, suggests that his contemplation or understanding of 86 was not in a, 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 of the issues that we've talked about, but also because it has to be the, in order for something to be a true threat, it has to be a serious expression of the, of the speaker's intent to engage in act of violence.

And something as as kind of vague as 8647, even if you're gonna assume there was some consideration of, of violence in that post, was it that Comey himself was going to engage in some kind of violence toward 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, the post is so vague that it would be difficult to prove that the, that the communication met the objective test for a true threat. That it was, that it was an expression of an 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.

James Pearce: Yeah. And let me let, let, let 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 knows, someone else might ask, or, 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 what we think of as the Brandenburg incitement theory. You know, how would you analyze a, a potential prosecution here?

John Keller: Incitement is another carve out to the First Amendment. So incitement is generally speech or a communication that the courts are looking at and are, 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 incitement 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 of the listeners probably understand, incitement 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 incitement 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 8647, the post on Comey'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, the clear answer even clearer to me than the true threat answer is no in terms of incitement.

James Pearce: So let me ask, ask this if, if you've got any examples at your fingertips, I think you, you mentioned a little while ago having done some work with elections, sort of threats task force and, and having done it sounds like quite a lot of analysis of, of threats—I think you mentioned some in connection with the 2020 election and, 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, and were actually prosecuted as, as true threats, as a, as a kind of compare and contrast?

And, and, you know, you may not have any at your, at your fingertips, but, you know, I thought it was helpful earlier to, to, to hear you kind of lay out some of the criteria that, or, or some of the contextual factors that, that you often see when you, when you actually you see a genuine objective intent to, to cause harm on, whether it's a public official or otherwise. 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, or after its consultation?

John Keller: A couple of examples come to mind. There was one a prosecution of a woman named Kaitlyn Jones in the Eastern District of Michigan. That Public Integrity joined with the U.S. attorney's Office, and Katelyn Jones had made a threat against an election worker, a, a number of threats against an election worker in Michigan after the 2020 election, and there were a barrage of, of contacts and posts, both verbal and also through imagery.

Some of them rose to the level of, or, or eventually kind of escalated to include things like, you know, your daughter and, and 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, while the language itself is somewhat vague and ambiguous—it, it would be terrible if something happened to her, it, it doesn't really say I'm going to go harm her–

James Pearce: It's got that, that classic kind of mafia, sort of implicit suggestion of threat though, right?

John Keller: A threat at, at a minimum. And, and then when you, when accompanied with a, with an image of, of somebody who's been mutilated, you know, I, I think the intent is, is clear.

And so, you know, that's the kind of thing that clearly evinces an intent to communicate a threat. It doesn't necessarily mean that the speaker was gonna 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, the crime of, 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, or the president.

And so again, turning back to the example in Michigan, the kind of pattern of repeated contact, the hostility that was implicit in the contacts, and then leading to some of these kind of egregious examples where they’re threatening the daughter and, 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, decertify 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 it, it taken the light most favorable to the defendant, could, could the defendant have only meant, your ass will never make it to the, your next little board meeting because you'll be voted out of office or you'll be fired, or you'll be criminally investigated and, 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, in considering what, when, when a matter is, is kind of truly borderline, and and there the, the victim took it as a, 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 a shame if something happened to 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 the 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, of physical menace that is, is not present in, on the face of the Comey's 8647 post.

James Pearce: In, in seashells, no less. Alright. 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, to come on the, the Lawfare podcast.

I know you've got some personal experience having handled criminal contempt prosecutions—and I, and I 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 sort of give a sense of what, what is criminal contempt? How do we define it? And then what, you know, what, what purpose does it serve? Why is there a criminal contempt doctrine?

John Keller: Let me, let me start with contempt generally, because teasing out the differences between criminal contempt and civil contempt can be a little bit thorny, but contempt generally, at least as a, as a statutory matter, under 18 U.S.C. 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 the, you know, think about the courtroom deputy or even the attorneys representing the parties in the courtroom; misbehavior by those individuals in the court's presence can rise to the level of contempt.

And then the, the third category, which is what we're gonna 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, 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 what the court has told them not to do or, or doing what the court has told them to do. And so if a court orders an individual a party to do something or to not do something, and it's a relatively clear and specific instruction, and the party then says, yep, gotcha, 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.

James Pearce: And so I think you, 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, to accomplish as opposed to what civil contempt is trying to accomplish.

John Keller: Yeah, so civil contempt is a means to, to force compliance. In other words, civil contempt is used to force someone to do something the court has told them to do.

So imagine a witness who comes into court and is, is subpoenaed to testify, gets on the stand, is sworn in, is asked a question and says, I, I refuse to test, I refuse to testify. I plead the Fifth. And the judge says, well, Mr. and Mrs. Jones, we've already been through this. You don't have a Fifth Amendment right in these proceedings, and I'm ordering you to testify. And the witness says, well, I, I understand that you've ordered me to testify, your Honor, but I refuse.

In that kind of situation, the court would, would most frequently use civil contempt and say, well, then I'm going to fine you, fine you $500 a day until you come in here and you testify or I'm going to put you in jail until you come in here and testify. And as soon as the, the contemnor, or in that case, the witness agrees to testify and comes in and testifies, the contempt is purged. 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, 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, and disregarding a, a court order.

And I, you know, I think even as I say it, that can sound somewhat punitive and somewhat harsh, and, and I could imagine someone saying, well, why, if you have civil contempt that the, 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, of criminal contempt?

And my answer would be, well, the rule of law, our entire society really depends on respect for court orders and, 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 may overturn the lower court's decision.

James Pearce: A point that I'll note that the, the chief justice has made a couple times recently, not, not necessarily directly, but perhaps implicitly in, in response to things said by either the president or others around him sort of suggesting that targeting judges is somehow appropriate and, and the answer being, answer being no. You, as you said, judges can be wrong, but there's a, there's a mechanism by by which to, to, to try to suss that out.

John Keller: 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, then people are incentivized to, to try to get away with as much as they can, and then, and then you have essentially a, a, 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, and so I think criminal contempt is there to ensure that court orders are obeyed unless or until they are overturned based on the judicial process.

James Pearce: 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 kind of sets out the, the process. How does that work? What, what does the process, if, if a judge believes or, or has reason to think a party may have committed criminal contempt, what does, what does Rule 42 have to say about that?

John Keller: So, Rule 42 essentially sets out the, the procedure by which the court analyzes a situation in which there, 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, but they can issue an order from the bench saying, I'm holding you in civil contempt because you have refused to do X, Y, or Z, you, you, and 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, it's a criminal remedy, and so the, the defendant has more protections. And so part of that is codified in, 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 a determination, do we think this actually rises to the level of criminal contempt and are we gonna accept it for prosecution?

The Rule also allows if the Department of Justice declines to prosecute the case or, 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.

James Pearce: We'll come back to that; there've been some, some constitutional questions about that procedure raised, but let's, 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 a judge makes a 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 has occurred? Is it, is the case then handled in front of that judge or, or does it go elsewhere?

John Keller: 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 intuitive sense to most of us; you don't wanna judge who maybe is offended and, and now has a personal vendetta against the litigant to be handling their criminal contempt charge.

For that same reason though, even in, in criminal contempt cases that don't involve criticism or, or verbal disrespect to the, to the judge—for example, in a, 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 wanna be perceived as, as on a personal vendetta because a litigant has disobeyed 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're 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, the judge that referred the matter to the department for, for consideration of contempt charges, recuses 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, if it seemed controversial enough.

James Pearce: Alright. That, that's, that's great. And, and I think it will be helpful to, to apply those, those principles and understandings to the, the J.G.G case, the Alien Enemies case in front of Judge Boasberg.

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 Arpaio, a case that as 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. Can you talk a little bit about, sort of what you've been discussing here, the, the criminal contempt principles substantively and procedurally kinda how that played out in the Arpaio prosecution?

John Keller: Sure. Just as a, just as an illustrative example, kind of as a, as a comparison point, I'm, I'm happy to talk about that, that briefly. Somewhat interestingly, I guess that matter also involved dispute with a court over immigration. So the defendant that, in that matter, Joe Arpaio, was the sheriff of Maricopa County, which is the county that includes Phoenix in Arizona, one of the most populous counties in the country, and, 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 Arpaio, under Sheriff, Sheriff Arpaio's leadership, the, 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, with enforcing immigration law. But as a general matter, state and local law enforcement offices are not enforcing federal immigration law.

Sheriff Arpaio 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, 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—well, not the ultimate result but, but during the course of that lawsuit—the federal judge, Judge Snow in Arizona entered a preliminary injunction saying, Sheriff Arpaio, you can no longer enforce immigration law during the pendency of this lawsuit. You cannot, and, and more specifically, you cannot detain individuals solely on suspicion of illegal status.

So if, if you pull someone over for a traffic violation, you can issue them a ticket. And if you, if, if your officers are, are investigating a state crime, they can arrest someone for violation of, 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 the, under the Fourth Amendment.

So Judge Snow says you can't enforce immigration law at least during the pendency of this lawsuit until we get to the final stages, and Sheriff Arpaio goes out and addresses the media and says well, I know that's what the judge said, but we're gonna keep doing it anyway. And then in fact you see a, 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 that a 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 the Department of Justice. Public Integrity Section reviewed the matter; we ultimately made the decision that we would prosecute the, the case, and so we filed the 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 Arpaio was ultimately convicted, and then as, as you mentioned he was pardoned prior to his sentencing, which was the first time in history that a, that a defendant ever been pardoned after being convicted at trial but before they were before they were sentenced.

James Pearce: So, so I think that's, that's a helpful illustration. Kind of establish your, your bona fides as a, as a, 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 Columbia in front of Judge Boasberg in the case, the J.G.G. immigration case, Alien Enemies Act case. So, so, so many folks, those who've listened or watched the Lawfare 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 Tren de Aragua, and thus under the 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 Boasberg. 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 Boasberg essentially. Directed the administration to stop the removals while he considered the legal challenges to them.

As I mentioned, that, that, that is separately went up to the Supreme Court, as as many will, will know, but for our purposes, Judge Boasberg has more recently —-though the, the case is, is now paused on appeal as we'll 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 contempt, but essentially a kind of probable cause determination that the, the three elements that you described—sort of a specific clear order a violation of, of the order and that that violation was willful—and then at the end kind of lays out potential paths that either the, the, the purging of it or further investigation.

With that context, what is your, kinda, 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, we'll bracket for a moment, the appellate proceedings, which we will talk about, but kinda where, where do you see this going from here, this matter if, you know, assume away the appellate proceedings for, for purposes of that question.

John Keller: I get, I, I, I'll start just by giving you my bottom line, and then we can, and then we can kind of step back and, and walk through the, the reasons for it. My bottom line is, you know, I think there is enough there for the Department of, 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 Boasberg lays out in his opinion, you have a, a, a fairly clear timeline and, and you have a good record of what was discussed between the parties in terms of what Judge Boasberg ordered, and then what and what transpired after Judge Boasberg entered that order. And so, you know, on its face, I think, I think you've got a, a potentially prosecutable case.

Now, that said, the, the fighting issue in these cases—as, as it was in Arpaio and as it would be here if, if the case were ever prosecuted—is two of the three elements which are closely related, the clear and 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 prong. So you really, you have to show kind of an enhanced or an elevated mens rea that the, that the defendant knew exactly what they were doing, that they knew that they were violating a clear and 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 court order, and so you can satisfy element one, but it still isn't 100% crystal clear, and there's enough ambiguity that the, 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, 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 the, those are the defenses, the fighting issues in these cases, and I think you know, I think those defenses are, are, are tryable here. I, I think the, you know, the, the Judge Boasberg's order and the, and the government's briefing on this really tees up the issue of did Judge Boasberg prohibit just removals from that point forward? And, 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 Boasberg says that there’s probable cause to believe the order clear on this point, and certainly extended to turning, in, in this case, turning the alleged gang members, illegal immigrants over to the Salvadoran authorities and a Salvadoran prison. Judge Boasberg 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 El 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 the plane and return them to the United States? Judge Boasberg told the, 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 understand that that meant we couldn't turn people over who were already outside of the country. We just 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 and specific enough on this point, and then the, the related issue which we just talked about is even if it was clear and 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?

James Pearce: And that's a great way to end because it, it, it, it directly gets at my next question, which is who's the defendant here exactly? You know, in Arpaio, the buck stopped with, with the sheriff, and as you said, there was the press conference not long after the, the district court's order saying, yeah, we're aware of this and we're, we're gonna continue enforcing immigration law.

I have a hard time from Judge Boasberg's opinion making sense of this, and, and from whatever else I, I've, I've learned about the case through, through other either reporting or other opinions, but, you know, if you were 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?

John Keller: This is a very interesting question on this fact pattern. In, in Arpaio, Judge Snow referred Arpaio himself along with his chief deputy and a couple of other senior high level sheriff's 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, I don't remember exactly—that were referred for criminal contempt.

We took a look at the, at the matter and did some initial kind of fact finding and made a determination that we would only proceed except the criminal contempt referral with respect to Arpaio himself, for, for a variety of 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 Arpaio, and that maybe they didn't really understand what the, what the order required of them anyway.

So turning back to the Judge Boasberg situation, he actually notes in his, in his probable cause finding that he would need to do some 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 in court to try and help suss out, alright, 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 plane in El Salvador be escorted off and turned over to El 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 that felt like were identifiable that could be prosecuted, and noticed in, in an order to show cause or, or a notice of acceptance of the criminal contempt referral.

James Pearce: Not a surprise though, in some respects, right? I mean, it's pretty hard to imagine—and perhaps this is animating Judge Boasberg's thinking here when neither 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. Does that, does that seem right to you?

John Keller: That's right, but I, but I, I think it, it, if you assume as we are and we, we assume that Judge Boasberg is probably also assuming, that the Department of Justice would not take up this, this case, they would not prosecute themselves for, or, or prosecute other members of the executive for criminal contempt, 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, if that's where we are, that he would appoint an independent attorney, then it might make sense to have that independent attorney do some of this factual investigation and 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 gonna refer this for, for prosecution or not—I just think it presents a, 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 recuse myself and let some other judge handle that, but I'm gonna 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 gonna handle the thing the whole way through, but either way, putting himself so centrally, so much at the center of determining who should be doing some fact finding to determine who might be appropriately referred for criminal contempt, 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.

James Pearce: Another perfect segue, 'cause that's, I think the last topic I wanna 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 Boasberg's ruling; actually noticed an appeal either the same day or the day after and the the case is, 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 usurpation of the executive's role in managing foreign policy. The plaintiffs, J.G.G. at all have, have separately, in addition to, to opposing any kind of stay of proceedings has, has filed a motion to dismiss for lack of appellate jurisdiction. We won't let that bog us down here, but I do wanna 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 Donziger case, which we can talk about, but, you know, how do you see the, the, the kind of constitutional challenge here? You know, do you, do you see this as something that's potentially meritorious? What's your, what's your, your understanding of, of kind of how the, the government might articulate or does articulate why Rule 42 is unconstitutional or kind of what, what particular component of Rule 42 is unconstitutional?

John Keller: Yeah, so let me start off by saying, I, you know, I, I think that the judiciary's 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 the, with policy—refuses to prosecute criminal contempt, that there are advantages to having the judiciary to be a, a 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, I think that the plaintiffs in this case—and Judge Boasberg, because in some ways for the appellate record, he is almost in the position of a litigant here—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 counsel, a special prosecutor, is constitutional because that independent counsel, special prosecutor is nothing more than or is akin to general special counsels and independent counsels 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 rebut that argument, the, the plaintiffs and Judge Boasberg 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 to decline it, we will then refer it to a special prosecutor. But that special prosecutor is still answerable to the Attorney General and is so, 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, is, 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 contempt prosecution, will fire the special prosecutor, replace the special prosecutor with someone whose views align with the, with the administration, or we'll just kill the case through inaction.

So that's, that's the rock. So then the, the plaintiffs and Judge Berg 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 III to enforce its orders and to ensure that its orders are complied with, and so, this 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 supervise 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 II function, especially here, where that, where that prosecution is against the executive branch. I think, I, I think a lot of courts are gonna 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, I, I think they, they have a, a tough legal road ahead of them.

James Pearce: 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, I think it was the, the, the hard place, the, 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, 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, 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, the presumption of regularity that is usually accorded to the government. You've seen it in as recently, I would argue, as the Supreme Court's ruling on Friday in the A.A.R.P. case, again, making clear that the government is not to remove people pending further order of the court, which to me, evinces a degree of, 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, the courts may have some worry about their ability to police non-compliance with their orders, which is a long way of, 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 J.G.G., 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 determine prosecute criminal contempt—you know, what do you think this forbodes for compliance with, with orders, with, with criminal contempt kind of moving forward in the next few years under this administration?

John Keller: One of the points that Judge Boasberg makes in his probable cause order is that he is aware of the stakes of this matter and the, 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—and he cites Supreme Court precedent for this idea—that you, you shouldn't kind of launch into a constitutional crisis if you can avoid it.

And so, you know, he recommends or offers the, the executive branch, the out of purging, the contempt as you mentioned. And, and the way he says the contempt to be 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 Boasberg have in their separation of powers argument, because I, I could see to your point about well, what, what, what do I think the consequences are going forward or what do 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, the judiciary, they do have this inherent authority; we're not disputing that Article III 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, 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 Boasberg—that judges are gonna 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, I think the administration has some—they're, they're going to reraise this argument every time they're in this position, and now they're gonna have the added factor that muddies the waters on willfulness to say, well, it's pending before the Supreme Court on whether or not a, 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 Boasberg's finding of criminal contempt, and so, you know, it wasn't a willful violation.

I mean, 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 appointments of special prosecutors as an arm of the judicial branch is even constitutional in criminal contempt cases.

James Pearce: Yeah, it'll, it'll be interesting to tell, and as, as we've mentioned, the, the J.G.G. case is up before the, on appeal at the D.C. 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 that, how, how that applies more, 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.

John Keller: Thanks for having me. I really appreciate it.

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