How Courts Can Prevent a Constitutional Crisis

Today I added a little bit of honey to my coffee, so it has a nice kick to it. So, as always, there’s a lot to talk about, right? But I’m going to focus today on the term “constitutional crisis” and how there’s really only one way to stop it!

Season 1 Episode 9

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The JD Vance Tweet and the Constitutional Crisis

Now, I did do another podcast on this a couple of days ago regarding this issue. It’s based on a tweet from Vice-President JD Vance, saying that the courts cannot stop the Executive Branch from doing anything, which means we don’t have a system of checks and balances.

• You’ve Been Warned by Vice-President JD Vance that a Constitutional Crisis is Coming

Tough guy JD Vance was on a podcast not too long ago, before President Trump went into office and quoted Andrew Jackson, saying, “Now you’ve issued your order, now come and enforce it.”

Okay, tough guy. They all act like tough guys. Some of these guys are 80 years old and act tough. But anyway, the constitutional crisis is now an issue because what if they started ignoring the courts? Now, of course, they’re going to listen to the courts when it’s in their favor and then ignore them when it’s not. They’re picking and choosing. That is what kings do; that is a monarchy.

But besides that, what can be done? The reality is the courts have to put their foot down. We saw President Trump get away with everything when it came to all his cases. Judge Eileen Wournos, I was actually going to say her name, but it came out naturally this time around. But yes, Judge Eileen Cannon shouldn’t be a judge, and she should be disbarred as far as I’m concerned.

Her rulings are ridiculous and absurd, but they don’t have a problem with her having a lifetime appointment, do they? And they sure as hell don’t have a problem with her rulings, right? Why didn’t they ignore her rulings? Oh yeah, we know why. Not to mention, she created a mini-constitutional crisis.

But besides that, the reality is judges can hold you in contempt. They have that power. They have the power to issue a rule to show cause when you come before the court and basically explain yourself. Now, we’ve all been there as lawyers.

A lot of times, for lawyers, it’s something innocent. If something was skipped or missed, normally, it’s not a big deal. The court does nothing about it. They just want to know what happened.

It’s in the Constitution!

But what happens in this scenario? For example, that ridiculous argument about birthright citizenship and an Executive Order getting rid of it, even though it’s written in the Constitution. That attorney who filed that ridiculous case, I know they work for the Department of Justice or for the White House Counsel, whatever division they’re in.

At the end of the day, if a lawyer signed that pleading, they are responsible. If the State Bar comes after someone, they’re not going to say, “Well, your boss said to submit it.” No, they’re coming after you. We all have an obligation as lawyers not to file garbage lawsuits.

But too many judges have let them get away with it, giving them a chance. But realistically, if I had filed that absurd motion, I would have been dismissed, kicked out of the courtroom, and fined on the way out. So that’s my question, and actually my answer. They just need to ask them why they should not be held in contempt.

You’ll see prosecutors or other lawyers from the Department of Justice start to say, “I’m not filing that,” and they will get another job. That’s fine, let a flunky move in because that flunky is going to face that responsibility. It’s either a paycheck and file frivolous motions, or face disbarment and lose that paycheck.

But now, how do we deal with court orders when the judge issues an order, and the Executive Order has been determined unconstitutional? When something happens at the trial court level, the Department of Justice supervisor of that division can find out by logging into their Pacer.gov account system to see how the court ruled.

But a judge can simply schedule a rule to show cause hearing and ask the DOJ lawyer, “Why shouldn’t I hold you in contempt?”  The DOJ lawyer can say, or if asked, that they advised their supervisor, whoever that is. Likewise, the judge can schedule another hearing the following day to determine if the supervisor should be held in contempt of court. Notice I said the next day. Not next week or next month.

Every lawyer I knew when I was practicing law, myself included, had a suit in the office for emergencies. Sometimes you think you don’t have court, so you dress casually. Then you get a call saying you have to be in court in an hour. Any lawyer can tell you they’ve had emergency motions where the judge says, “Be here by 3:00 today.” And you clear your schedule because that’s just the way it is in this business.

Likewise, hearings can be set for the next day. The next person in line shows up and can confirm their superiors were put on notice. Get that person’s name, and bring them in the next day. Line them up, one by one. Eventually, the last person, where the buck stops, will be the one held in contempt.

When referring to contempt, I’m not referring only to a monetary fine. President Trump’s lawyer, Alina Haba, was hit with a substantial fine, but they don’t pay those fines personally. Their supporters fundraise for them. What matters is that the person pays the fine and provides proof that it came out of their pocket. If someone wants to reimburse them later, that’s between them. And if the fine isn’t working, there are other ways to enforce compliance.

Update: Alina Habba, who has zero prosecutorial experience, was assigned to be the interim U.S. Attorney for New Jersey.

Is jail too extreme? How about a bar complaint? Tag this person with a bar complaint, and you’ll see that they will stop doing this and playing games. Others will fall in line.

Also, a court ruling is not optional. It’s not the court providing some sort of advice or recommendation. Many judges have signs in their courtrooms that say, “Court orders are not optional.” This is the time for courts to start proving that their orders are not optional and that they are the last line of defense we have against a monarchy. I hope the courts do what they’re supposed to do and stop entertaining absurd, ridiculous motions because they wouldn’t do that under other circumstances.

When you file absurd, ridiculous motions, judges should nail you to the wall. You’re lucky if you don’t walk out of there without a fine. If you continue to do something ridiculous to delay, then they should impose harder sanctions, if not a bar complaint.

That’s just the way it is done, and I hope we see it that way because that’s how it’s done in the real world. We should not give exceptions to the Department of Justice filing every gibberish motion they can think of to delay things and start ignoring court orders.

It has to stop now, and I hope the courts take that step. If not, it falls upon us, the people, to move forward and do something about it, which means protesting, getting organized, and everything else. That’s something we should be doing anyway.

But let’s be clear: the courts have to show the power they have and start holding people in contempt. If contempt isn’t working, go straight to the bar and file a bar complaint. That’ll take care of it, and that’s how you stop a constitutional crisis.

Now, time to enjoy the rest of my coffee and try to enjoy yours.

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