‘Assuming that the judge — Judge Boasberg or any other judge for that matter — eventually concludes that the government deliberately violated a court order, what are the judge’s options?  

I can tell you that every former judge I know has been asked this question by somebody in the media, including me. I think the only real option is civil contempt.

The reason why it cannot be criminal contempt is generally that would be referred to the Justice Department to prosecute. So you might have a lawyer, a witness that you direct to answer [a question], they refuse, and/or they lie. If you want to charge them with criminal contempt, you have to get the U.S. Attorney’s office or Main Justice to prosecute, and clearly the Tr*mp Justice Department, or the Bondi Justice Department, is not going to prosecute.

Then you get that question, which was raised in the Eric Adams case, could you appoint a special prosecutor? That’s tricky because of separation of powers, so I think criminal contempt is off the table.

I think civil contempt, however, is something that could be done if the facts are fairly straightforward. The remedy in civil contempt, believe it or not, can include incarceration.

Usually it’s fines. If it was a lawyer, you might file a grievance against the lawyer. That could be done if these lawyers either lie to the court or personally violate the order — you might want to bring a grievance before the grievance committee of the local bar where they’re admitted, something like that.

So it could be fines, could be a grievance, but in theory, it could also be jailing somebody. I did that only once in my time on the bench. In a civil contempt case, I actually put somebody in jail because he was so defiant, and then … he did what he was told to do.

You could also sanction the person, and that’s always interesting, because you could have fines that double every day, so it can get serious fast. I don’t know how good at math you are, but a $1,000 fine doubling every day can quickly add up to real money — not for the United States government, but for an individual. If somebody was individually sanctioned, that adds up.

How would incarceration work in civil contempt? Wouldn’t you still need the involvement of the executive branch?

Well, you need the person taken away by the U.S. Marshal. That’s the problem, right?

When I held someone in civil contempt, I had to say, “Marshal, take this person across the street to the jail.”

That is part of the executive branch — just the U.S. Marshal escorting the person over to the federal facility. So it still has that problem, but you don’t need a prosecutor.…’

(Ankush Khardori, a former federal prosecutor, interviewing former federal judge Shira Scheindlin via POLITICO)