Can Trump be punished for criminal contempt?

The national temper tantrum that we otherwise refer to as the Trump candidacy has sunken to such depths of ignorance, falsity, and faux outrage that it can no longer be reasonably identified as a campaign for the presidency of the United States.  This is more like a pilot for some new reality show about politics, with the media serving as unwitting (or, perhaps, entirely witting) directors, producers, and cast members.  Quite apart from Trump’s laughably hypocritical attack on the political press yesterday – did everyone roll their eyes when Trump, of all people, called the press “dishonest,” or was it just me? – he has continued his overtly disrespectful (and strangely race-based) attacks on Judge Gonzalo Curiel, the district court judge in San Diego who is handling the lawsuit against Trump that accuses him of fraud with respect to Trump University.  See coverage at Politico here.  (On Trump’s hypocrisy in calling others dishonest, Lawrence O’Donnell’s coverage of Trump as a pathological liar is especially notable, here).

I have heard some commentary suggesting the possibility of legal sanctions, including criminal contempt charges, against Trump for his public insults of Judge Curiel.  Much as many Americans would love to see Trump finally held accountable by someone for his behavior, I think it is highly unlikely that his comments would satisfy the legal standard for criminal contempt.

A federal statute, 18 U.S.C. 401, empowers a federal court to, in its discretion, fine and/or imprison a person for contempt.  Generally, we think of contempt as showing disrespect to a court or disobeying its authority.  Trump has almost surely done the former.  But this statute sets forth very specific grounds for a finding of contempt: (1) misbehavior in court, or in such close proximity to the court that it obstructs justice; (2) misbehavior of a court officer in an official transaction; (3) disobeying or resisting a lawful writ, process, order, rule, decree, or command.

While Trump has surely shown public disrespect for Judge Curiel, and, in my view, has inappropriately called into question the integrity of the court proceedings against him, it is most likely within his constitutional rights to do so.  Americans are permitted to criticize their government, and federal judges, as officers of the government, are not immune from criticism, within certain boundaries.  It is not unusual for litigants to complain that the judge in their case did not give them a fair shake, made mistakes, etc.  It is, of course, different when the complaints are as personal and venomous as those uttered by Trump about Judge Curiel, and even more different when they are uttered on national television to large groups of people by a major party candidate for President.  The statements, themselves, are hard to defend.

But so long as Trump was not trying to unduly influence the proceedings (it is not unreasonable to ask whether Trump is attempting to bully the judge into ruling favorably for him), then my sense is that punishment under Section 401 is not a real possibility.  Moreover, even if there were grounds for doing so, it is highly unlikely that Judge Curiel would initiate any such proceedings.  A judge in this situation would not want to appear as though he was trying to humiliate or create any political disadvantages for a presidential candidate, and so would proceed with contempt only in circumstances of utmost necessity.  Plus, doing so might only embolden Trump, handing Trump even more fodder for his attacks.

Judge Curiel, by the way, has had a distinguished legal career, including a career as a federal prosecutor.  Born in Indiana (hard to know how Trump confused Indiana with Mexico, but hey, it’s Donald Trump), Judge Curiel served for many years as an Assistant United States Attorney in SDCA, even becoming Chief of Narcotics Enforcement.  He was also an AUSA in CDCA before becoming a judge.  Though I have not followed the case closely (civil fraud litigation isn’t my thing), from what I know of the case, I can find no evidence of bias or unfairness shown to Trump by Judge Curiel.  Trump, however, does not appear to operate in a world where facts and evidence are relevant; indeed, they appear to be impediments, inconveniences, or burdens that he will not allow to stand in the way of a good tantrum, or insult, or any other similar behavior that many Americans apparently find appealing.

Of course, even assuming that Trump’s statements about Judge Curiel are legally permissible, one can only hope that, as President, Trump would show more respect to a coordinate branch of government in the exercise of its powers.  Of course, a President Trump, like any president, could criticize the courts on the merits of their decisions.  That’s probably not a bad thing, under the right circumstances and if done respectfully.  But these kinds of highly insulting personal attacks on a court, detached from reality (but hey, again, it’s Donald Trump) and seemingly unconnected to any legal argument, are the stuff of madness.  And that is especially true when they come from someone who desires to head the executive branch, appoint judges, enforce lawful judicial orders, and oversee men and women of integrity who serve as officers of the federal courts.  It is yet another example (one, in a long line of examples) of Trump’s disdain for the institutions of constitutional government, for anyone who does not give him what he wants, and for restraint.


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