David Cole on Trump administration's defiance of court orders

Daniel Drake interviewed David Cole, former national legal director of the ACLU, for The New York Review: 

Cole: The sheer number of judges who have called the administration to task for violating their orders is astounding. I have practiced constitutional law for more than forty years, and I have never seen anything even close to the defiance and bad-faith obstruction of court orders this administration has shown. Some of the violations could be the result of miscommunications, short-staffing, and the like, and neither Trump nor his attorneys have, as far as I know, asserted that they have the authority under law to disobey court orders. But they are repeat offenders many times over, and actions speak louder than words.

The overall tenor of the administration’s responses to court orders, especially in immigration cases, appears to reflect a message from the top that outright obstruction of court orders will be not just tolerated but welcomed. That is obviously not how the system is supposed to work. Government officials have a responsibility to do justice, and to understand that with power comes responsibility. That ethic seems in remarkably short supply in this administration.

Question: What options do we have? Judges can hold government officials in contempt for their actions. They can impose fines and even imprisonment to coerce parties to follow court orders. They can hold hearings, compel government officials to attend, and require that they answer direct questions on the record. In extreme cases they can recommend prosecution for defiance of court orders—though the decision to prosecute would be up to United States attorneys, who Trump has ensured are loyalists. So I wouldn’t hold my breath for a prosecution.

Answer: That means true accountability lies with the American people. Do we sit by and accept such behavior? Or do we take to the streets (and eventually the polls) to express our disapproval of what the government is doing in our name? If we do the latter, as the brave people of Minneapolis did, it can have tangible results. Trump was forced by the people, the political leaders, and the judges in Minneapolis to retreat. That’s an important form of accountability that we should never underestimate.

On the other hand, while Judge Boasberg’s initial ruling was ignored, the essential principle in that case—that the Alien Enemies Act could not be used to expel foreign nationals without due process—has, since that time, continued to apply. The Trump administration has not attempted to use that rationale again, and their efforts to get Judge Boasberg impeached or cited for misconduct have failed. The courts seem, to some extent, to be holding up against the executive’s assault. Are there other hopeful signs of the judicial branch’s ability to restrain this drive to authoritarianism?

By and large, the federal courts have been the principal institutional check on abuse by this administration. As the Harvard Law professor Jack Goldsmith, a former high-level Justice Department official in the George W. Bush administration, has argued, the courts have blocked many of Trump’s initiatives. This includes the Supreme Court, which, in addition to the order you note about the Alien Enemies Act deportations, required Trump to facilitate the return of an El Salvadoran man who had been wrongly deported, blocked Trump from deploying the National Guard to states where governors have objected, such as Minnesota, California, and Oregon; and stopped him, for now, from firing a Democratic appointee to the Federal Reserve, Lisa Cook. By the end of the current term it will issue rulings on his imposition of worldwide tariffs and his attempt to deny birthright citizenship to children of certain foreign nationals born here—and may well rule against him on both initiatives.

The Court’s “shadow docket” rulings, on requests for emergency relief while cases are making their way through the courts, have been troubling. And the Court will almost certainly give Trump more unchecked power to fire heads of agencies that Congress sought to make independent. So the jury is out on how the Supreme Court will respond to Trump. But one thing is certain: over the past year, the courts have played an essential part by reining in the executive. Progressives unhappy with the Supreme Court have long castigated the judiciary as ineffectual, political, or worse. But where would we be now without them?

Question: In a recent interview, your Georgetown colleague Steve Vladeck made the point that in the clash between the executive and judicial branches, the crisis is due in large part to the absence of the legislative branch—what Vladeck calls the “indolent Congress.” While Republicans maintain a majority in the Senate and House, this indolence seems likely to continue, but within the bounds of the Constitution, what kind of powers can the minority party exercise in Congress to help put a check on the president?

Answer: Sadly, there’s not much that the minority party in Congress can do. In our system of majoritarian rule, at the moment the Republicans exercise the power of initiative in both houses of Congress. Democrats can ask hard questions in hearings called by Republicans, as Representative Jamie Raskin of Maryland and his colleagues on the House Judiciary Committee did this week in a remarkably combative hearing with Attorney General Pam Bondi. But the Republicans control what hearings are held on what subjects, what bills come to a vote, what subpoenas are issued, what investigations are conducted. Democrats’ only power is to withhold votes, as they have done with respect to the budget, where they have sufficient support from a handful of Republicans. But for the Democrats—and Congress—to exercise any meaningful checking function, we’ll have to wait for the midterms. 

Question: What do you make of Trump’s suggestions that the midterm elections should be nationalized? How much of a realistic threat does this present?

Answer: I don’t think we can discount that threat. Trump has already shown how far he is willing to go in obstructing elections that he loses. At the moment, it seems the Republicans are likely to lose the midterms in a big way. That will be Americans’ first formal opportunity to register their assessment of the job Trump has been doing. His approval ratings are low—currently hovering around 40 percent—and the Republican share of the vote has dropped precipitately in the handful of elections that have occurred since he took office. Those signs suggest that, if the midterms were held today, the Democrats could win in a landslide, even though partisan gerrymandering has rigged many results.

Trump of course knows that. So we cannot ignore the risk that he will try to obstruct the results by asserting baseless claims of election fraud and seeking to take control of the ballot counting. At the same time, that has never happened in this country; the Constitution assigns that work to the states. Such a transparent effort to subvert democracy would not play well. We are, after all, a democracy, not an autocracy. Voting matters; it’s what legitimates government authority. But at that point it will be on all of us as Americans to defend our democracy.

Question: In your most recent essay for the Review, “Trump’s War,” writing about Trump’s invasion of Venezuela and abduction of its president, you say that “It was an illegal operation, actually. Illegal on so many fronts that it can be challenging to keep them straight.” Given the Supreme Court’s ruling in Trump v. United States that a president enjoys absolute immunity for any acts conducted in his capacity as president, what kind of justice or recourse can even exist for an executive who seems to violate so many laws? That is, short of an unlikely Supreme Court ruling overturning Trump v. US, what can be done to hold this administration accountable when they’re out of office? 

Answer: Well, the first thing we need to do is make sure they are sent out of office, both in the midterms and in 2028. A decisive vote to reject the administration’s efforts to destroy the climate, the rule of law, and indeed the livelihoods—and lives—of many people will be the most important form of accountability we can deliver. If the people resoundingly reject Trump 2.0, the question will be less how we hold the bad guys accountable than how we build back the norms and legal limits necessary to stop this from ever happening again.

Criminal accountability for Trump himself remains possible, even under the Supreme Court’s misguided immunity decision. It left open prosecution of the president for nonofficial actions, such as the rampant corruption that Trump has invited into the White House. And even many official acts can still be the subject of prosecution; the only absolute immunity the Court provided was for exercises of unilateral executive authority over which Congress has no say whatsoever. So Trump is not free and clear by any means. Impeachment also remains an option, though it will require at least a significant subset of Republicans Senators to vote their conscience rather than putting fealty to Trump and the MAGA movement over what’s best for the country.

And yet the most important thing to remember is that accountability is in our hands as “we the people.” We can render judgment that this method of governing is an object lesson in how not to run a responsible, caring, and humane democracy—but only if we get engaged now and stay engaged until he leaves office. We can all take a lesson from the people of Minneapolis.

To read more CLICK HERE

Clintons call for public testimony before Congress regarding convicted sex trafficker Jeffrey Epstein

Former US president Bill Clinton and his wife Hillary are calling for their congressional testimony on ties to convicted sex trafficker Jeffrey Epstein to be held publicly, to prevent Republicans from politicising the issue, reported The Guardian.

Both Clintons had been ordered to give closed-door depositions before the House of Representatives’ oversight committee, which is investigating the deceased financier’s connections to powerful figures and how information about his crimes was handled.

Democrats say the probe is being weaponised to attack political opponents of president Donald Trump – himself a longtime Epstein associate who has not been called to testify – rather than to conduct legitimate oversight.

House Republicans had previously threatened a contempt vote if the Democratic power couple did not show up to testify, which they have since agreed to do.

But holding the deposition behind closed doors, Bill Clinton said Friday, would be akin to being tried at a “kangaroo court”.

“Let’s stop the games + do this the right way: in a public hearing,” the former Democratic president said on X.

Hillary Clinton, the former secretary of state, said the couple had already told the Republican-led oversight committee “what we know”.

“If you want this fight ... let’s have it in public,” she said on Thursday.

To read more CLICK HERE

 

Brooklyn woman with mental health problems remains in jail uncharged for not revealing whereabouts of missing child

The Family Court in this case is doing precisely what the constitutional guarantee against compelled self-incrimination forbids: It is exerting the court’s coercive power to force Ms. Pritchett to give testimony that could expose her to criminal prosecution

On Thursday, the Brooklyn Family Court judge asked the woman the question for the seventh time:

Where was Jacob?

Jacob Pritchett, an 11-year-old so small that his neighbors in Brooklyn thought he was no older than 7, had not been seen for months. The police and a child welfare case worker, prompted by a call to 911, had gone to his Brownsville apartment on Oct. 1 to find him. But the woman who answered the door, Jacqueline Pritchett, told them she had never had a child, reported The New York Times.

The apartment was spotless and had the pungent scent of cleaning products, and the police could see toys in the bathroom and in the closet, according to court transcripts. But Ms. Pritchett, 50, continued repeating her claim even after Judge Dawn Marie Orsatti issued a civil warrant on Oct. 10, charging her with contempt for not revealing where her boy was, and sent her to Rikers Island.

Ms. Pritchett has been brought back to court repeatedly, and on Thursday, Judge Orsatti tried again.

“If you tell the court the whereabouts of Jacob, I will release you from incarceration,” Judge Orsatti said.

Ms. Pritchett, dressed in brown sweatpants and sweatshirt, sat next to her lawyer and looked back silently. Her lawyer, Daniela Mancini, leaned over and said her client was invoking her Fifth Amendment right against self-incrimination.

Judge Orsatti sent Ms. Pritchett back to Rikers.

The case has flummoxed detectives who scoured three months of surveillance footage taken from the building, looking for any sign of the boy. They traveled 330 miles to upstate New York to search a landfill where the garbage from the Brooklyn building was taken. They have interviewed neighbors and relatives, but no one has been able to help them figure out where Jacob, whom the police and neighbors have described as nonverbal, could be.

The answer appears to lie with Ms. Pritchett, but she has resisted giving one despite the efforts of the court, the police and the city’s Administration for Children’s Services.

Brooklyn Defender Services, the public defenders representing Ms. Pritchett, declined to comment about the boy’s disappearance or whether his mother knew anything about it. It has filed court papers arguing that she should be released immediately from Rikers Island, calling her detention a “constitutional violation.”

”The Family Court in this case is doing precisely what the constitutional guarantee against compelled self-incrimination forbids: It is exerting the court’s coercive power to force Ms. Pritchett to give testimony that could expose her to criminal prosecution,” wrote Brian A. Holbrook, a lawyer for Brooklyn Defenders, in a Dec. 2 petition.

It is unclear whether Jacob went to school. Before this fall, Ms. Pritchett did not appear to have a history of involvement with child welfare agencies in New York State, according to someone who viewed some of her social service records and spoke on condition of anonymity because they were not authorized to discuss the case.

The police once made a check on Jacob in 2017 after a 911 call, according to court transcripts. The Police Department said it is continuing to investigate the case.

The 911 call that sent the police and A.C.S. to the Brownsville address this fall came from a worried neighbor, according to a law enforcement official with knowledge of the case who was not authorized to discuss it.

Police officers went to the apartment in a three-story red brick building on Howard Avenue on Oct. 1 for a wellness check.

Ms. Pritchett told officers that she lived alone and “became loud and boisterous during the interview,” according to an internal police document.

During a hearing on Oct. 10, an A.C.S. caseworker, Gabriel Martindale, said that when he and the police arrived, he went inside and saw two mattresses. The apartment was dark and the electricity had been shut off.

The smell of cleaning products, he said, was “very strong.”

When Mr. Martindale asked whether the toys belonged to Jacob, Ms. Pritchett said they were hers. He then presented her with Jacob’s birth certificate and asked whether that was her son.

“She said she’s never had a child, that she has never had a period, that she’s never been with a man,” Mr. Martindale said. She then said “that she is Jesus Christ.”

Ms. Pritchett was taken to Brookdale University Hospital nearby for psychiatric evaluation. Neighbors said they had seen the police checking the building’s dumpsters. A police dog that later searched the apartment “got a hit” from the refrigerator inside the kitchen, the internal document stated.

On Oct. 9, the police were in Perinton, N.Y., near Rochester. Wearing white coveralls, they fanned out across the High Acres Landfill. The official said investigators went there after they learned the garbage collected at the Brooklyn apartment was sent there.

Neighbors said in interviews in October that they had not seen the boy in months, but had noticed that Ms. Pritchett, who had grown thinner, had lesions on her skin and sometimes talked to herself.

Shamik Burchet, who lives in the building and often saw Ms. Pritchett and Jacob, said the child “seemed really neglected.”

When the boy was younger, Mr. Burchet said, his mother sometimes left him sitting in a stroller alone in the building’s lobby.

“Sometimes I’d have to sit with him,” he said. “Eventually she’d come back around.”

Evelyn Rolon, who lives nearby and works as a bartender, said the mother and son moved into the building about seven years ago.

“I would hate to think that a mom would hurt her own child,” said Ms. Rolon, 49, who often saw Ms. Pritchett and her son. “I’m hoping she gave him to somebody because she got overwhelmed.”

Sometimes, Ms. Pritchett would meet neighbors at block parties. The boy was usually not with her, but at a cookout in early September, Ms. Rolon said she gave the woman two burgers — one for her and one for Jacob.

“He would be making sounds. He wasn’t formulating words,” Ms. Rolon said.

Ms. Pritchett was often seen out alone. Other times, they could hear her screaming at Jacob in the apartment.

“We’d tell her, ‘Stop yelling at the baby like that.’ You know how someone yells at a grown person? That’s how she used to yell at the baby,” Ms. Rolon said. “You could tell she was overwhelmed.”

In October, when officers from the crime scene unit were searching the apartment, they sealed the door with a neon green warning sign that forbade anyone from coming inside without police authorization. Affixed just below that sign were several pink and yellow stickers with happy faces.

To read more CLICK HERE

Troops deployed to Portland in defiance of Court Order

The Trump administration briefly deployed Oregon National Guard soldiers to Portland earlier this month, hours after a Federal District Court judge had ordered any such deployment blocked, the government revealed, according to The new York Times.

The District Court judge, Karin Immergut, raised the possibility that the deployment, however brief, had put the administration in contempt of court as she began a trial to determine whether to lift a temporary restraining order, or T.R.O., on troop deployments or make it permanent.

“We’ll discuss later whether that’s contempt and a direct violation of my T.R.O.,” Judge Immergut told a Justice Department lawyer after learning of the deployment.

President Trump wants to send National Guard troops to protect the U.S. Immigration and Customs Enforcement building in Portland, which has been the site of daily protests for more than four months. Oregon and the city of Portland have sued to stop that deployment, and a trial in the case began Wednesday.

But Judge Immergut imposed temporary restraining orders first on the use of Oregon National Guard soldiers beginning at 3:40 p.m. on Oct. 4, then on all guard troops the next day.

Before the trial began Wednesday morning, a Justice Department lawyer, Jean Lin, told Judge Immergut that Oregon soldiers under federal control were sent to Portland between 11 p.m. on Oct. 4 and 2 a.m. on Oct. 5. Ms. Lin did not say how many soldiers were sent or what they did at the ICE building.

A spokeswoman for the U.S. Northern Command, which oversees the federalized National Guard soldiers, said military officials were looking into news of the brief deployment. Emails submitted as evidence in the case show a nine-person advance team from the Oregon National Guard, part of 200 Guard troops federalized by the Department of Defense, reported working at the ICE facility after the temporary restraining order was filed.

The issue marked the second time this week that the Justice Department had to come clean before judges considering Mr. Trump’s planned deployment in Portland. Federal lawyers have said the National Guard was needed in Portland because the federal government had exhausted existing resources, even after moving Federal Protective Service officers and other law enforcement agents with other federal agencies to Portland from other parts of the country.

But in a filing to the U.S. Court of Appeals for the Ninth Circuit on Monday, U.S. attorneys acknowledged that they overstated the number of federal agents reassigned to Oregon.

In a brief filed before an Oct. 20 appeals court hearing, the government said that 115 Federal Protective Service officers from other parts of the country had been surged as a group to the ICE building and stated that “it is undisputed that nearly a quarter of the agency’s entire F.P.S. capacity had to be redirected over a relatively short period to a single location in one medium-sized American city due to the unrest there.”

But in a letter to the appeals court on Monday, a federal lawyer said 86 F.P.S. officers were actually sent to Portland over the summer, including some who were deployed multiple times. The lawyer also noted that the reference to “nearly a quarter” of the federal agency’s capacity being sent to Oregon was simply incorrect.

What the federal government meant to report, the lawyer wrote, was that 13 percent of the agency’s inspectors — who are responsible for crisis response, investigations and security assessments at federal buildings — had been deployed to Portland over the course of the summer.

On Wednesday, in the first day of what’s expected to be a three-day trial, lawyers for the city of Portland and the state of Oregon argued that the federal response to protests at the Portland ICE facility has been disorganized and needlessly violent.

“The court will hear that Immigration and Customs Enforcement officials have staffing challenges,” Scott Kennedy, a senior assistant attorney general for Oregon, told the judge. “But that has nothing to do with Portland.”

To read more CLICK HERE

ALTERT: Look closely, the 'Big Beautiful Bill' is also an attack on the rule of law

In President Trump’s so-called “One Big Beautiful Bill Act”--buried in Section 70302 of the legislation— is a provision that would severely restrict federal courts’ authority to hold government officials in contempt if they violate judicial orders, reports the Campaign Legal Center.

A court’s ability to hold bad actors in contempt is a vital enforcement power that judges can use to compel compliance with their rulings.

When somebody chooses to violate a court order, the judge who issued the ruling has a few different options to force them to comply, including holding them in contempt and issuing sanctions, fines, or even jail time until the order is followed.

But the reconciliation bill would require anyone suing the government to pay a bond before the court can use its contempt power to enforce injunctions or restraining orders meant to halt illegal actions.

By restricting this authority, the House bill threatens the power of the judicial branch. On its own, that represents an attack on the rule of law and the separation of powers that underlies our democracy. But in the context of our current political moment, a more specific goal is unfortunately clear. 

Courts have already ruled at least 170 times against the Trump administration, including a preliminary injunction sought by CLC that halted Trump’s unconstitutional attempt to change the rules for federal elections. In response to many of these rulings, the president has resisted compliance and waged intimidation campaigns targeting the judges responsible.

In light of all this, the House bill seems squarely and unacceptably focused on shielding the Trump administration from accountability when it breaks the law. 

To read more CLICK HERE 

The 'big beautiful bill's" assault on the judiciary and elections

Here are two things you might not know about Trump's "big beautiful bill" according to Katie Couric Media:

An assault on the judiciary

A policy in Section 70302 would hugely limit federal courts’ power to hold government officials in contempt if they violate judicial orders. This is a major live issue — as the Guardian notes, at least one judge appears poised to issue a contempt citation in a high-profile immigration case related to the administration’s deportation of alleged Venezuelan gang members.

Not only does this provision threaten the judicial branch and the separation of powers, but as the CLC points out, it represents a stark escalation in a campaign the Trump administration is already waging against the judiciary. The courts have ruled against it at least 170 times already, and in many cases, Trump’s response has been to ignore due process and attempt to intimidate judges.

Deregulating election misinformation

Section 43201(c) of the House reconciliation bill would ban the enforcement of all state and local laws that regulate AI — including regulation around the use of AI in political campaigns and elections — for 10 years.

For want of decisive action from Congress to regulate AI’s impact on the democratic process, states have filled the vacuum by enacting their own safeguards. If the big beautiful bill dismantles them, false information could run rampant for the next decade, seriously impacting voters’ ability to make informed decisions.

To read more CLICK HERE

Chemerinsky: Trump budget bill would limit courts' ability to hold officials in contempt

A budget bill by the U.S. House of Representatives contains a “stunning” provision that would limit federal courts’ ability to hold government officials and other litigants in contempt for disobeying their orders, according to Erwin Chemerinsky, the dean at the University of California at Berkeley School of Law, reported the ABA Journal.

The provision should be rejected as “a terrible idea,” wrote Chemerinsky, an ABA Journal contributor, at Just Security via Executive Functions.

The provision says federal courts can’t use appropriated funds to enforce a contempt citation for failing to comply with an injunction or temporary restraining order “if no security was given.”

The provision applies even to previously issued orders.

“The bill is stunning in its scope,” Chemerinsky wrote.

Security refers to a money bond that would cover potential costs and damages from a wrongly issued injunction, which is imposed pursuant to Rule 65(c) of the Federal Rules of Civil Procedure.

Despite the procedural rule, federal courts rarely require security in lawsuits against government defendants challenging actions as unconstitutional, according to Chemerinsky and Samuel Bray, a professor at the Notre Dame Law School, writing at Divided Argument.

“It always has been understood that courts can choose to set the bond at zero,” Chemerinsky observed.

Failing to set a bond before a temporary restraining order or a preliminary injunction is contrary to Rule 65(c), but it doesn’t invalidate the court order, Bray said. The spending bill is broader because it would also apply to final injunctions.

The House bill failed a committee vote Friday, and it’s unclear whether the bill will pass in its current form, the Associated Press reports. Also unclear is whether the provision would survive in the U.S. Senate and whether courts would strike it down.

The budget bill provision “appears meant to spare the federal government any legal consequences for even deliberate, continuing and belligerent defiance of court orders,” wrote Walter Olson, a senior fellow at the Cato Institute, for Cato at Liberty.

“If the district judges are no longer in a position to enforce contempt orders, why even bother appealing? The feds (and others, too) could just thumb their noses at them and go on their way,” Olson wrote.

To read more CLICK HERE

 

Federal judge finds probable cause to find Trump administration in contempt

A federal judge said he has found probable cause to hold President Donald Trump’s administration in criminal contempt of court for violating his orders to turn around planes carrying deportees to El Salvador, reported The Associated Press.

U.S. District Judge James E. Boasberg warned he could refer the matter for prosecution if the administration does not “purge” its contempt. Boasberg said the administration could do so by returning to U.S. custody those who were sent to the El Salvador prison in violation of his order so that they “might avail themselves of their right to challenge their removability.”

To read more CLICK HERE

Deadline looms on Order to bring back man illegally deported

A federal judge in Maryland ordered the Trump administration to take immediate steps to return a Maryland man who was deported to a Salvadoran mega-prison by mistake, setting up another high-stakes clash between the White House and the courts, reported The New York Times.

"This was an illegal act," U.S. Federal District Judge Paula Xinis told Justice Department lawyers at a federal court hearing in Greenbelt, Maryland about the deportation of Kilmar Abrego Garcia, who lived in the U.S. legally and had a work permit. Abrego Garcia was arrested and deported last month — despite having been granted protection by an immigration judge in 2019 that should have prevented him from being deported to El Salvador.

Judge Xinis ordered the government to return Abrego Garcia to the U.S. by 11:59 p.m. on Monday, April 7. She said keeping him in El Salvador constitutes irreparable harm.

"From the moment he was seized, it was unconstitutional," Judge Xinis said during the hearing. "If there isn't a document, a warrant, a statement of probable cause, then there is no basis to have seized him in the first place. That's how I'm looking at it," the judge said.

The Trump administration filed an appeal to the ruling to the 4th Circuit Court of Appeals.

To read more CLICK HERE

'What is wrong with our country?'

Mother jailed for contempt for ignoring family reunification therapy with husband who allegedly abused children

Across Colorado, children are in danger because of forced family reunification therapy. The process, meant to rebuild a parent-child relationship strained by separation or divorce, can be mandated by a family judge even when the child has accused a parent of abuse, reported The Washington Post.

That was the case for Rachel Pickrel-Hawkins, who was joined by dozens of people — mostly mothers — urging Colorado courts to reevaluate how they handle child custody rulings, particularly family reunification therapy.

The 48-year-old mother of six made headlines last week when she was jailed for contempt after opposing family reunification for her two youngest sons and their father, a former police sergeant who was charged July 29 with sexually assaulting three of their daughters and physically abusing one son.

Christopher Estoll, an attorney for Michael Hawkins, 55, did not immediately respond to request for comment but has previously denied the accusations on his client’s behalf. In an Aug. 1 court filing, Estoll said the accusations were “not supported by evidence” and characterized Pickrel-Hawkins as a “not credible” witness who manipulated the couple’s children.

Hawkins, an Aurora, Colo., officer who in 2012 was hailed among the first responders to the deadly movie theater shooting in Aurora, remains free on bond with ankle monitoring. Pickrel-Hawkins, meanwhile, must report to weekend jail for seven weeks.

During Thursday’s rally outside the state Supreme Court, Pickrel-Hawkins said parents like her who are mired in custody battles following relationships marked by alleged domestic violence are silenced — “by gag orders, by going to jail, silenced to say anything else or they’ll get less time with their children.”

“What is wrong with our country?” Pickrel-Hawkins asked the crowd. “What is wrong with our state?”

Since 2010, 30 children have been killed by abusive parents, with eight of those deaths coming in 2023 alone, Colorado state Rep. Meg Froelich (D) said in a letter sent this week to Colorado Supreme Court Chief Justice Monica Márquez. Froelich said she hopes the letter, signed by a mix of Colorado lawmakers and child-safety advocates, will prompt the new chief justice to push the state’s family courts to embrace changes that include ensuring family court judges and family reunification counselors are trained to understand domestic violence and trauma.

Crucially, Froelich said, children must be given a voice in the courtroom and should be allowed to address a judge during custody hearings without the parents present. The current system prioritizes the wishes of a parent who wants to reconnect with their child over the child’s preferences or stated safety concerns, Froelich said.

Under Colorado’s embattled family court system, some reunification therapy counselors have pressured children to reconcile with the parent who abused them — something that would never be asked of victims in other scenarios, Froelich said.

“Since when is the twist of fate that you’re biologically linked mean that you should move toward reconciliation and forgiveness?” Froelich said following the rally. “We’d never say that to a sexual assault survivor. But [Pickrel-Hawkins’s] children were told to go to their father and forgive him.”

According to an affidavit for Hawkins’s arrest, allegations of his abuse stretch back nearly two decades and include claims that Hawkins repeatedly raped his daughter and sexually abused his adopted daughters from Pickrel-Hawkins’s previous relationship, groping them beneath their underwear. He is also accused of using police restraint tactics on the children and forcing his children to witness or participate in animal cruelty.

Colorado’s legislature has enacted some family court restructuring in recent years, including a bill passed last year that restricts the use of family reunification camps, or situations that isolate a child from their preferred or bonded parent to improve their relationship with an estranged parent.

Still, Froelich said Pickrel-Hawkins’s situation proves more changes are needed. Fighting the custody arrangements has put Pickrel-Hawkins deeply in debt and forced her to live in a domestic violence shelter with her two youngest children.

Pickrel-Hawkins told The Washington Post through a representative that she hoped sustained attention would remain on her case and others like it, and that the news media would “thoroughly investigate, stand up, and speak for those who have been wrongfully silenced and punished for protecting the innocent children that desperately need our protection most.”

Pickrel-Hawkins declined a phone interview Friday afternoon, indicating she would be spending the last hours of the day with her children before returning to jail.

To read more CLICK HERE

TCR: The Games Defendants Play

Mathew T. Mangino
The Crime Report
November 3, 2022

Nearly a year ago, Darrell Brooks drove his red Ford Escape SUV into the Waukesha, Wisconsin holiday parade, killing six people and injuring 61 others. The horrific tragedy was punctuated by a bizarre, recently concluded, four-week trial.

The trial, which began October 3, was presided over by Waukesha County Circuit Judge Jennifer Dorow. I followed the trial closely for The Law and Crime Network.

When the trial began, I was taken aback by Judge Dorow’s overt efforts to placate the defendant who insisted on representing himself.  It was clear, on the eve of trial, that Brooks was attempting to deploy the ruse of representing himself as a means to delay the trial.

The judge figuratively bent-over-backward to ensure Brooks knew his legal rights and the responsibilities incumbent on representing oneself. Dorow had warned Brooks that he would proceed “at (his) own peril,” noting he would have to abide by unfamiliar laws and court processes.

However, she made it clear, with counsel or without, there would be no delay.

Once trial began, Brooks made repeated attempts to portray himself as a “sovereign citizen” and, as a sovereign citizen, outside the court’s “subject matter jurisdiction.”

Brooks continually talked over Judge Dorow, challenged her in unorthodox ways and argued with her repeatedly. I can assure you that no attorney could get away with a fraction of what Brooks got away with in Dorow’s court.

In fact, most defendant’s representing themselves would have felt the wrath of the court long before Brooks did—if he ever did feel the court’s wrath.

Dorow provided a written ruling outlining on the court’s jurisdiction and provided wide latitude for Brooks to make objections that were inappropriate and out of context—each time patiently saying “overruled.”

Brooks had two things in mind—delay and disruption.

He did both rather well. As a result, his conduct spurred heated arguments with Dorow. Judge Dorow on several occasions removed Brooks to an adjacent courtroom.

However, each time she relented and invited Brooks back into the courtroom.

As Brooks continued to make baseless claims and meritless legal arguments, Judge Dorow continued to plough forward, and I realized what an important statement Judge Dorow was making for the criminal justice system.

Brooks had nothing to lose.  He had no defense; he was sitting in jail with little chance of ever getting out—so he’d make a mockery of the system.  Judge Dorow couldn’t hold him in contempt for his conduct.

What would she do: send him to jail?

She couldn’t declare a mistrial; his conduct would only be more unsettling during a second trial.

Judge Dorow did exactly what she needed to do.  She was committed to finishing the trial. She did her best to protect the defendant’s right, but refused to succumb to his theatrics.

The judge knew what Brooks wanted—delay and disruption—she could not prevent the latter, but she made sure he didn’t succeed in grinding the trial to a stop.

Delay would have been a victory for Brooks, and victories are dangerous in the hands of a guy like Brooks.  Judge Dorow has proven a disruptive and defiant defendant can get a fair trial of his or her own making.

Courts do not have to give in to outrageous conduct. A defendant might not always get what he wants, but often he gets what he deserves.

If I heard it once, I hear it a hundred times during Brooks’ trial—the well-known quote attributed to Abraham Lincoln, “If you represent yourself, you have a fool for a client.”

The jury deliberated for three hours, after a four-week trial.  There were 76 counts and Brooks was found guilty on every count.

Another, lesser-known statement of Lincoln’s may give us a glimpse into what is in store for Brooks.

Brooks will undoubtably appeal.  The underpinning of his argument on appeal will surely be “ineffective assistance of counsel”—he had a bad lawyer (himself).

That argument brings to mind Lincoln’s lesser known anecdote about the man who killed his parents and then asked for mercy from the court because he was an orphan.

It didn’t work then and won’t work now.

Matthew T. Mangino, of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA, is a frequent contributor to The Crime Report.    He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com)

To visit The Crime Report CLICK HERE

 

GateHouse: Weinstein lawyers try to remove judge for admonishing client

Matthew T. Mangino

GateHouse Media

January 10, 2020

This past week, each morning a feeble looking Harvey Weinstein hobbled into the State Supreme Court building in Manhattan, New York for the start of his much anticipated sexual assault trial.

Celebrity trial aficionados know the routine - aging defendant, in rumpled suit, arm-in-arm with counsel, looking lost and bewildered. Remember the inexplicably “blind” comedian convicted of sexual assault?

Weinstein stands accused in criminal court of the alleged sexual assault of two women. He has been accused of assaulting as many as 70 other women who, by law, cannot pursue criminal charges due to the passage of time.

Harvey Weinstein appears as though he can’t walk without the aid of a walker, which, by the way, has its metal legs inserted into yellow tennis balls.

Monica Hesse, a Washington Post style-columnist, asked “Can you for one second imagine him (Weinstein) showing up with neon tennis balls?” referring to the Golden Globe Awards ceremony, ironically held the night before his trial began.

The trial is merely at the jury selection stage and already the sparks are flying.

The nearly immobile Weinstein apparently still has good dexterity in his hands. On the second day of jury selection, Judge James Burke admonished Weinstein for using his phone in the courtroom - actually two phones. Judge Burke told Weinstein, “Is this really the way you want to end up in jail for the rest of your life, by texting and violating a court order?”

Weinstein had been noncompliant with court’s order not to use cellphones in the courtroom and with court personnel who asked him to put away his phones on at least three occasions.

Social media was abuzz, was this judge biased against Weinstein? Did the judge want to put this feeble 78-year-old man in prison for life for using a cellphone?

Attorneys for Weinstein showed up the next day in court with a request for Judge Burke to hand the case over to another judge. According to the USA Today, the request for recusal alleged that Burke’s scolding reflects “animus” toward the defendant, and has “created a situation in which the Court’s ‘impartiality might reasonably be questioned,’ in violation of New York State’s Rules of Judicial Conduct.”

In New York, the sole statutory authority for judicial recusal is Section 14 of the Judiciary Law. Section 14 provides that a judge who has a financial interest in a case or is a relative of one the parities must recuse herself from presiding over the case - scolding a defendant for violating court rules is not on the list.

The courts in New York have ruled, “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court.”

Judge Burke refused to step aside.

There is a long standing doctrine in the law known as the “duty to sit.” The duty to sit encourages judges to hear and decide cases unless there is a compelling reason for recusal.

The duty to sit also discourages litigants from forum shopping - defense attorneys using recusal to find a more favorable judge. The doctrine also makes it difficult for judges to simply recuse themselves from controversial cases. Jeffrey T. Fiut, writing in the University of Buffalo Law Review, explained ”(T)he judge has a responsibility to hear and decide cases, one that should not be shirked for political or personal reasons.”

“There’s nothing prejudicial or inflammatory (about) scolding a defendant,” said Judge Burke. “If using strong or even hyperbolic language succeeds after stern admonishments have failed, then the court has accomplished its goals.”

Weinstein’s feeling are hurt - someone told him “no.” There will be many more distractions as this case moves forward, but the ultimate goal will not change - justice for the accused and justice for the victims.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

GateHouse: Contempt of Congress: Where do we go from here?

Matthew T. Mangino

GateHouse Media

May 10, 2019

The House Judiciary Committee voted 24-16 to recommend the House hold Attorney General William Barr in contempt of Congress for failing to comply with a subpoena seeking an unredacted copy of Robert Mueller’s report. The vote came after President Donald Trump asserted executive privilege to prevent the unredacted report from going to Congress.

Congressional rules empower all committees with the authority to compel witnesses to appear and testify or produce documents for matters being investigated by a Congressional committee.

In 1961, the Supreme Court ruled that a Congressional committee must meet three requirements for a valid enforceable subpoena. First, the committee’s investigation must be authorized by a chamber congress; second, the investigation must pursue “a valid legislative purpose;” and third, the specific inquiries must be pertinent to the subject matter that has been authorized for investigation.

Once the threshold is met, Congress has three options to enforce a subpoena. First, Congress’ inherent contempt power provides constitutional authority to detain and imprison an individual until that person complies with the subpoena. The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover’s administration, after he refused a subpoena. According to the Washington Post, the Senate had nowhere to hold MacCracken so he was imprisoned at a hotel.

Second, Congress can pursue a criminal contempt citation through the executive branch seeking criminal prosecution for contempt. This is the most common method used by Congress. The person accused of contempt is charged with a misdemeanor punishable by a fine and up to a year in jail.

There are some practical concerns with this option. Where the official refuses to disclose information pursuant to the president’s decision that such information is protected under executive privilege, it is unrealistic that the Department of Justice (DOJ) will pursue a prosecution for criminal contempt. More to the point, under the current facts the DOJ would be asked to prosecute its boss, the attorney general.

Finally, Congress may rely on the courts to enforce a congressional subpoena. Under this option, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

A number of obstacles face Congress in any attempt to enforce a subpoena issued to the Attorney General, an executive branch official. Congress may be able to enforce its subpoena through a civil lawsuit; however, relying on this option to enforce a subpoena directed at the attorney general may be inadequate to protect the authority of Congress due to the time required to achieve a final court ruling.

The two most recent court cases seeking to enforce a Congressional subpoena involved former Attorney General Eric Holder in 2012 and former White House counsel Harriet Miers in 2008. According to a 2017 report from the Congressional Research Service, ”(B)oth conflicts ended the same way: The contempt charge was stuck in a court battle for so long that a new president and Congress were elected and new administration officials took office along with them.”

Trump’s blanket claim of executive privilege appears to be an effort to shield Barr from contempt. Essentially, the president is saying the redacted aspects of the report are privileged and Barr cannot turn them over to Congress.

Trump’s efforts parallel Richard Nixon’s unsuccessful effort to prevent his White House Counsel, John Dean, from testifying pursuant to a subpoena from the Watergate special prosecutor.

According to Michael Conway - a former counsel to the House Judiciary Committee - like Nixon, Trump is trying to use an expansive claim of executive privilege to thwart a legitimate Congressional investigation.

Trump seems to be prepared to do as Nixon did in 1973. Conway wrote on the NBC News website, “Nixon predicted that the Senate would question his claim of executive privilege if Dean were required to testify. If that occurred, Nixon said ‘we’ll let it go to the (Supreme) Court. Fight it like hell.’”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

Barr in contempt of Congress

House Democrats on the Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress for failing to provide the full version of Special Counsel Robert Mueller’s report on Russian interference in the 2016 election, and the White House responded by invoking executive privilege over it, reported Time Magazine.

The immediate consequences will be mostly symbolic. About 10 percent of the Mueller report was redacted, at times clearly because it involved information relevant to the upcoming trial of longtime Trump confidant Roger Stone. The next step in the proceedings will be a vote on the House floor. Although it will likely pass since Democrats control the chamber, Barr will probably face few legal repercussions, as federal prosecutors are unlikely to pursue criminal penalties for a contempt of Congress charge against their own boss.

But the speed with which Democrats took the nearly unprecedented measure — it is only the second time in U.S. history that the nation’s top law enforcement officer was held in contempt of Congress — and the surrounding cloud of suspicion and counter-charges reflected the unprecedented scope of conflict between the executive and legislative branches.

In the 48 hours since the Judiciary Committee announced it would hold contempt proceedings on Monday, the Trump Administration issued a flurry of rejections for congressional requests, adding to an already deep pile. On Monday, Treasury Secretary Steve Mnuchin announced he would not turn over the President’s tax returns to the Ways and Means Committee; on Tuesday, the White House told former White House Counsel Don McGahn not to comply with a subpoena from the judiciary committee; and on Wednesday, after a day of futile negotiations between the committee and the Department of Justice, it invoked executive privilege over the redacted portions of the Mueller report.

Democrats unsurprisingly used the high-profile proceedings on contempt to highlight what Nadler is deeming a constitutional crisis. As the markup stretched into the afternoon, the sentiments became less about Barr’s actions and more about about preserving the powers of the legislative branch.

“This is unprecedented,” Judiciary Chairman Jerrold Nadler said in his opening statement after listing all the other ways the White House has stonewalled Congress. “If allowed to go unchecked, this obstruction means the end of congressional oversight. As a co-equal branch of government, we should not and cannot allow this to continue.”

Every member of the committee was allotted a brief time to speak, and the tenor reflected the partisan tensions. Democrats’ comments largely echoed Nadler’s about the state of U.S. democracy. Republicans, by comparison, defended Barr, arguing that Democrats were on a “witch hunt,” and wanted Barr to break the law by handing over the un-redacted report. Several also pointed out Democrats moved much more quickly to hold Barr in contempt than Republicans on the oversight committee did with his Democratic predecessor Eric Holder in 2012 when they were seeking documents in the Fast and Furious case.

“[Democrats] have moved from request to contempt vote in only 43 days, and yet the Justice Department is still at the negotiating table — waiting for Democrats to arrive in good faith,” said ranking member Doug Collins, adding that Democrats want to “sully Bill Barr’s good name and reputation.”

Department of Justice spokesperson Kerri Kupec released a statement after the vote, calling it “politically motivated,” and “unnecessary.” “It is deeply disappointing that elected representatives of the American people have chosen to engage in such inappropriate political theatrics,” she said.

There is undoubtedly some irony that Barr is the first administration official facing contempt proceedings when his department, unlike the White House counsel’s office, actually came to the table to negotiate. And it is also true that the vote to hold Holder in contempt was, like Barr, upheld along party lines. But veterans of Congressional oversight say that, more than anything, it is this partisanship that is the problem.

 To read more CLICK HERE

Congress may hold AG Barr in contempt of congress

Congress indicated they could be forced to hold Attorney General William Barr in contempt of Congress if he did not cooperate with a subpoena for an unredacted copy of special counsel Robert Mueller’s report on the Trump campaign and Russian interference in the 2016 election, reported the USA Today. The Justice Department missed Wednesday's deadline to hand over the subpoenaed report, writing to Nadler that the committee had not "articulated any legislative purpose for its request."  congressional Democrats said they could be forced to hold Attorney General William Barr in contempt of Congress if he did not cooperate with a subpoena for an unredacted copy of special counsel Robert Mueller’s report on the Trump campaign and Russian interference in the 2016 election. The Justice Department missed Wednesday's deadline to hand over the subpoenaed report, writing to Nadler that the committee had not "articulated any legislative purpose for its request."

While Congress is given powers to investigate and subpoena individuals and entities, it typically does not just arrest people for not cooperating. 

Instead, Congress can hold a person in contempt if their actions are viewed as obstructing legislative business or a congressional investigation.

Lawmakers have three routes: 

• Inherent contempt: The Supreme Court has ruled that lawmakers have inherent contempt powers to have an individual held until the person "provides the testimony or documents sought, or until the end of the session," reads a 2017 report from the Congressional Research Service, Congress' policy research arm. Using this process is incredibly rare and hasn't been done in modern times, not since the 1930s.
• Criminal contempt: Congress also has the option to use its "criminal contempt" powers, a law that allows lawmakers to charge an individual with a crime. This is the process listed above with regard to Barr that's more common and would have to be passed through one of the chambers in Congress. 
• Civil judgment: The third option is going through a civil process in the courts. Lawmakers can seek a civil judgment, asking a judge to enforce a subpoena. 

The most common method used by Congress has been criminal contempt; a charge is a misdemeanor and punishable by jail time of between a month and a year and a fine.

But it's not as easy as simply charging someone. The measure doesn't have to pass in both the House and Senate and can start in committee, meaning in this case, Nadler could bring the issue before the House Judiciary Committee. 

After it passes with a simple majority, it would move to a full vote in the House.

Once approved, the House speaker or the Senate president pro tem then turns the matter over to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action," according to the law. 

While Congress has broad investigative powers, there are limits. The Supreme Court has said that congressional inquiries should have a legitimate legislative purpose and should not be used for political purposes to embarrass, expose wrongdoing or target a particular person or group.  

And holding someone in contempt of Congress has caveats and drawbacks. Jailing someone until they testify or offer up documents might seem like an easy solution but the CRS notes that Congress is not allowed to hold someone past the "end of the current session of Congress." The process could also likely end up worsening tensions between each branch of government and give the public a front-row seat to the chaos. Plus some, like Barr, have armed security and it's unclear what would happen if Congress attempted to arrest him. 

And while a civil claim could be the path of least resistance, it could be time-consuming and delay an investigation. Even criminal contempt has a catch: It's up to the Justice Department to actually take up a criminal case against someone. In the past, the Justice Department has declined to prosecute criminal contempt-of-Congress cases.

There's also the question of executive privilege, which President Trump said was being considered to block his current and former aides from testifying before lawmakers. 

It isn't clear whether Congress' contempt powers could trump the president invoking executive privilege as neither the White House nor Congress has sought a resolution to the question from the Supreme Court, both sides fearing they might lose.  

Congress would have a harder time investigating presidents for decades to come if the high court ruled against it and if the White House lost, it would open the door for a multitude of congressional inquiries.

Congress rarely holds people in contempt. But it has done so in the past to force witnesses to appear or produce documents. 

The last time Congress used its inherent contempt powers was in 1934 when the Senate held William MacCracken, a former member of Herbert Hoover's administration, after he refused a subpoena. The Senate had nowhere to hold MacCracken so he was imprisoned at a hotel, according to the Washington Post. 

But Congress has voted on contempt charges more recently, even discussing using it against members of the Trump administration last year after former White House adviser Steve Bannon refused to answer questions. 

Other examples include in 2012 when the House voted to hold then-Attorney General Eric Holder in contempt for declining to provide documents and in 2014 after IRS official Lois Lerner invoked her Fifth Amendment right against self-incrimination during a congressional hearing. In both cases, the Justice Department declined to bring criminal cases. 

While a contempt charge normally moves through the criminal justice system and the courts, there's one final method that has gotten attention in recent days, given the president's reluctance to cooperate with congressional investigations. 

Lawmakers can elect to pursue a contempt-of-Congress charge in an impeachment proceeding, which is a political process to remove the president from office that moves through Congress instead of the courts. 

A contempt-of-Congress charge was one of the three articles of impeachment filed against President Richard Nixon in 1974 after he defied subpoenas for documents and information that Congress said it needed for an impeachment inquiry. 

To read more CLICK HERE

Oklahoma judge resigns after holding more than 200 people in contempt since 2016

An Oklahoma judge has agreed to resign after he was accused of using his contempt powers to jail people for infractions such as leaving sunflower seeds in his courtroom and talking in court, reported the ABA Journal. Judge Curtis DeLapp resigned Monday and agreed to never again seek judicial office, report the Washington Post, the Frontier (in stories here and here), NewsOK and the Bartlesville Examiner-Enterprise.

DeLapp, who will be allowed to keep his retirement benefits, said he was prioritizing his family. “It is with a heavy heart but clear conscience that I announce my resignation,” DeLapp said in a statement. He had presided over cases in Washington and Nowata counties as a district judge. petition for removal alleged that DeLapp has ordered people jailed in more than 200 direct contempt citations since 2016.

The petition, filed by Oklahoma Chief Justice Douglas Combs, alleged gross neglect of duty and oppression in office.The petition also alleged that DeLapp altered documents to justify the six-month jail term he gave to a woman for talking in his courtroom.

 On March 5, the Oklahoma Supreme Court ordered the immediate release of the woman, Randa Ludlow, and voided DeLapp’s contempt order.

In another case, DeLapp was accused of jailing a woman for four days after she apparently left sunflower seeds on the courtroom floor and bench. He then allegedly required her to return to court 20 more times over the next 2½ years.

To read more CLICK HERE

My comments in the Washington Post regarding Ohio lawyer jailed for contempt

Washington Post

July 25, 2106

Youngstown, Ohio Attorney Andrea Burton was held in contempt of court and arrested after wearing a Black Lives Matter pin to court.

Matt Mangino, a criminal defense attorney who used to be a prosecutor in Lawrence County, which borders the county where Burton was arrested, told The Post that a judge has the authority to determine whether certain signs are “political.”

The judge can also determine whether wearing a certain button would be a distraction in the courtroom, or give the impression of bias. Mangino said:

            Judges obviously have wide latitude in their courtroom with regard to decorum and things like that as long as their rules are reasonable. It’s not uncommon to have dress codes and other sorts of things. What you normally might find is a sign outside that says lawyers need to wear ties or no cutoffs or tank tops.

            With regards to protests or political statements, things that can be controversial if they’re displayed in a courtroom, it may be akin to wearing a Hillary Clinton button in the court — anything that could disturb the court or disturb the decorum within a courtroom or lead to either the impression of bias.

            But you have to balance that with First Amendment. I think that distinction is in the eye   of the beholder.  A judge obviously has great authority and latitude within his or her courtroom.  He is the beholder.  Black Lives Matter is so new, what does it mean to a judge?  And how does a judge determine what that means.

To read more CLICK HERE