While I am a licensed attorney, this is not paid legal advice. Nothing in this communication is intended to create an attorney-client relatiownship. Unless expressly stated otherwise, nothing contained in this article should be construed as a digital or electronic signature, nor is it intended to reflect an intention to make an agreement by electronic means.
It is difficult to summarize the case of J.G.G. v. Donald Trump, in which five Venezuelans have sued to prevent their removal from the United States. There are many detailed and well written breakdowns of the events that happened prior to trial. The most relevant details are that over two hundred Venezuelans, allegedly members or associated with the Tren de Aragua gang, were detained and deported to an El Salvadorian prison by the US government. This was at the direction of President Trump, via the Alien Enemies Act (“AEA”) and his alleged war time powers.
The five aforementioned plaintiffs, in a lightning fast filing, had their attorneys file Habeas petitions and claims of violations of their due process rights. They also attempted to claim a class of plaintiffs made up of all individuals detained under this action by the government. With this petition, the plaintiff’s sought a Temporary Restraining Order (“TRO”), a rare form of judicial relief that allows a court to directly intervene between the parties to prevent irreparable harm to one or more party. The Court granted the TRO ordering the halt of any deportations of these individuals, then later expanded their order to recognize a potential class and prevent the deportation of all individuals detained under the AEA for 14 days.
The government, rather than follow the standard process, or show any form of professionalism, have tried every possible way to avoid making arguments in court and take the necessary steps to show their actions are legal. Further, there is nigh indisputable evidence that they have violated the TRO. The Court, aware of the potential violations, has held numerous hearings demanding evidence that its order was not violated. At and between these hearings, the government has refused to provide evidence, failed to answer direct questions from the judge, and shown open derision for the Court’s authority.
Many have called for the Judge to level contempt, both criminal and civil, against the government attorneys. Others have said the attorneys involved should face personal sanctions and potential disbarment. Those sympathetic to the government instead claim that the judge is an activist and acting outside the bounds of his authority. According to the government, the Circuit Court should remove the Judge from the case.
This article will attempt to better explain what TROs are, the judge’s options when trying to coerce the government into acting properly, and what options remain to resolve this constitutional crisis. While it is not comprehensive, it is a good start for a lay person to understand the process and procedures around this case. While an appeal has already been heard by the Circuit Court, and an appeal to the SCOTUS has been filed, I will not be discussing the arguments made, orders granted, and likelihood of success in these other courts.
TROs are an extraordinary remedy granted by federal trial courts, almost always requested by a plaintiff, and almost always prior to the other party entering the lawsuit. It is an injunction, meaning an order by a court requiring or forbidding an action, to protect a party or the Court’s ability to hear a case. In plain terms, it is a court calling a timeout on some action it believes will create severe harm or make the case impossible to move forward. A TRO is one of the few times that a judge may have a hearing without both parties present, referred to as an ex-parte communication. Traditionally a TRO is only issued for 10 days, though may be extended another 10 upon request. A TRO is the explicit disregard of a party’s right to due process to the benefit of an opposing party. This means that it is granted sparingly, and only when irreparable harm is almost certain.
TROs are a power created by statute, Rule 65 of the Federal Rules of Civil Procedure, with their final form Preliminary Injunctions. A Preliminary Injunction, unlike a TRO, can only be granted after a hearing with both parties. It requires a requesting party to show irreparable harm, that they are likely to succeed on the merits of the case, and that no public or private interests will be harmed more by the injunction than the requesting party would be if it weren’t granted. Preliminary Injunctions are not limited by a specific deadline, and considered less invasive than TROs. After the end of a TRO’s deadline, it automatically converts into a Preliminary Injunction, if no hearing is held by that time, the resulting Preliminary Injunction is able to be overturned by operation of law.
TROs, and Preliminary Injunctions, are important aspects of the judicial system. They are employed to protect victims of domestic violence, halt hostile takeovers, and potentially throw up roadblocks to tyrannical regimes. Once granted, they must be followed, and violation of them opens a party to contempt, imprisonment, or even the dismissal of claims. A court’s power to compel a party to follow a TRO is surprisingly broad, and their power to punish a party for a later discovered violation equally so.
Salvadoran police officers escort alleged members of the Venezuelan
gang Tren de Aragua recently deported by the U.S. government to be
imprisoned in the Terrorism Confinement Center prison, in San Luis
Talpa, El Salvador, obtained March 16, 2025. (Secretaria de Prensa de la
Presidencia via Reuters)
Contempt of Court is a term everyone has heard in the news, movies, and recently from democrat commentators regarding the government’s actions in court. In the federal court system, Contempt is divided into two categories: criminal and civil. Despite the names, they both can be issued during criminal and civil trials, and both can result in fines or imprisonment.1 A finding of Contempt is a power of a trial court to manage the cases and parties before them. Breaches of ethics, illegal actions, or even simple disrespect to the Court, can all result in Contempt against a party or their lawyer.
There are two main qualities that distinguish Criminal and Civil Contempt. The first is when a court exercises them. Civil Contempt is used to compel behavior. Some examples would be if a party refuses to testify, fails to appear for a hearing, or refuses to follow a court order. Civil Contempt is often continuing until the party conforms to the desired behavior. For instance, if a party doesn’t conform to a court order, a court can levy a $1000 fine, which then doubles each day. Once the contemnor then conforms to the judgment, the fine no longer applies. In this way a Court can shepherd and manage parties who may try to take liberal interpretations to the rules.
Criminal Contempt is generally used to punish a party’s previous behavior. A court is most likely to exercise this power when it is discovered that a party previously violated the rules, acted in a way to prejudice an opposing party, or undermined the Court’s ability to properly adjudicate a case. Criminal Contempt fines or imprisonment are not cured by a change of behavior, they are punishments. For instance, if a corporation dumped chemicals in violation of a Court order in an ongoing case, a Court can fine them equivalent to the damage caused by their violation, even if they have already stopped dumping in compliance with the order. In this way, if a party harms another or violates the rules, punishment can be used to discourage similar behavior in the future.
The second quality that distinguishes the two forms of Contempt is that Civil Contempt does not require a subsequent jury trial to levy any fine or imprisonment, while Criminal Contempt does. Criminal Contempt is, as the name suggests, a criminal charge and thus entitles the accused to a jury trial. The Department of Justice must represent the government as the prosecution at this second trial. Civil Contempt, meanwhile, only requires that a judge find that the order being defied was valid, clear, and that the contemnor had the ability to comply. This has led to some issues of judges leveling Civil Contempt rather than Criminal in order to avoid a jury trial. While no clear line has been drawn, appellate courts are wary of such behavior by trial judges.
When contemptible actions are taken by a party’s lawyer rather than a party themselves, whether it is disrespect to the Court, arguing in bad faith, or clear ethics violations, there are further options a court has to punish or compel their behavior. A court can levy sanctions directly on an attorney, such sanctions can range from paying the opposing attorney’s fees, direct fines, or what are called “Death Penalty Sanctions”. Despite the scary name, Death Penalty Sanctions only mean that a case or counterclaim is dismissed for the egregious actions of the attorney, and are incredibly rare to see. Sanctions also are a matter of public record, and are reflected on the attorney’s publicly accessible profile on the relevant bar’s website. Sanctioned lawyers often suffer in finding employment and clients due to these public marks on their records.
Finally, a judge can file a grievance with the relevant bar,2 against the attorney. These grievances can result in punishments by the bar of fines, suspension of license, or even disbarment. In almost all cases, a grievance that results in such punishments entitles the attorney to a hearing and adjudication. Grievances are usually reserved for actions directly involving the Court and ones that involve ethics violations.
These powers are not mutually exclusive, a court can levy Criminal Contempt, Sanctions, and file a grievance for the same ethics violation. There are different reasons why a court may choose to exert some powers but not others, these decisions are intricate and can vary based on the judge employing them.
Returning to J.G.G. v. Trump, attorneys from the DOJ have refused to appear at hearings, refused to provide information requested by the Court, made bad faith arguments, and failed to comply with a clear and valid TRO. In any other case, and in any other administration, the Court would have fired off Contempt and sanctions at the first sign of defiance. Yet here we see silence from the bench. The Court has repeatedly set new hearings, and given the government more time to repair their grievous actions. While I am not interested in defending the Court’s inaction, I think it is worth discussing reasons why the Court has been so hesitant to punish the DOJ attorneys.
Criminal Contempt would be an appropriate punishment for the DOJ attorneys lying to the judge and defying the TRO preventing the government from deporting any further immigrants under the AEA. Had the Court leveled Criminal Contempt on the DOJ attorneys, it means the DOJ itself would then be required to investigate and prosecute their own attorney. The charged attorney was acting under the orders of the DOJ itself, so it is unlikely that the Contempt charge would be pursued. This means Criminal Contempt cannot punish the attorneys, and cannot then dissuade similar future behavior.
Civil Contempt, though it does not require a jury trial, can fail in a similar way. Should the Court order the incarceration of a DOJ attorney, the physical act of incarceration must be done via the US Marshals. The US Marshals are organized under the DOJ and thus the DOJ could just prevent the US Marshal service from then enforcing the Civil Contempt. Should the Court levy a Civil Contempt fine, whether compounding or single fee, the government would essentially be paying itself. A Court could instead levy Civil Contempt on the attorney individually, though the government could pay it on the attorney’s behalf. This again defeats the purpose of the Contempt and is unable to compel compliance with the TRO.
At this point the judge is almost certainly avoiding challenging the executive directly over a Contempt charge. Any direct challenge at this point is likely to bring the constitutional crisis between the Executive and Judiciary to a head. In the best reading of this court’s actions, the judge could be waiting for a more opportune time for such an ultimate conflict. This is not uncommon for courts to pick and choose the best case scenario for momentous decisions. As Contempt, even if successful, would not result in any significant change to the Executive’s egregious actions, or help the injured parties in this case, the Court may not wish to expend effort and time into such a fruitless endeavor.
Sanctions and Grievances against the individual attorneys are likely the best options for the judge, in this scenario. Sanctions and grievances against an attorney, whether they work for the DOJ or otherwise, can lead to disbarment. As we have seen, putting attorneys’ ability to practice in jeopardy for unethical or illegal filings has led to attorneys resigning from the DOJ. Should an attorney get disbarred in one district, it jeopardizes their licenses in all others. Additionally, these marks on their record make it difficult to get hired at jobs outside the DOJ, in the future. Should enough attorneys at the DOJ resign, it can seriously hamper the Executive’s ability to appear in court and enforce their policies.
Jewish Voice for Peace demonstrators protest in Trump Tower in New York
in support of Columbia graduate student Mahmoud Khalil. Yuki Iwamura /
AP
Sanctions, bar licenses, evil people doing evil things being immune from consequences, how is this supposed to make you feel better? It isn’t, the reason it feels like this article is grasping at straws is because this is how a constitutional crisis feels. Our government is designed with good faith actors in mind, and should bad faith actors abuse the system, there are only a few checks and balances to try to right the ship. In this case, the Executive is acting in bad faith, they are not engaging with the rules and laws, and they know that they can undermine any Contempt leveled against their attorneys. Meanwhile the Judiciary is trying to act in good faith, follow the rules, and prevent the Executive’s actions from breaking the entire system.
During this direct clash of these two branches, the Legislature should be stepping in to resolve the issue. Impeachment of an executive who is clearly intentionally trying to break the rules and disregard the institutions of our government is the solution to this problem. However, our congress will not act, and will not protect our system. While the judge in this case could take actions against the government, and, even if futile, at least show that they are defiant to this Administration’s abhorrent actions, their failure to do so is a red herring. The people abdicating their duty are the members of congress unwilling to stand up to an open authoritarian bent on destroying our government.