“Contempt” is a scary-sounding word. Its literal meaning is something close to “disdain” or “scorn.”
Contempt can be scary in its legal iteration too. While the specifics vary by jurisdiction, of course, the consequences of defying a court’s instructions can theoretically be dire, up to and including having to sit in jail until you decide maybe it is actually worth listening to what the judge has to say.
There are many high-profile historical examples of draconian contempt sanctions. For example, journalists have been jailed for contempt related to refusals to reveal their sources — for months, in some cases.
Yet, in the day-to-day operations of the justice system, real penalties for contempt are pretty rare. Excluding high-profile cases reported in the media, in a little over 10 years of practice, I’ve never even heard of anybody actually being jailed for contempt. I have seen a few people pay money at the last minute to ward off threatened contempt. One time, I saw a judge refuse to hold parties in contempt on the theory that since they disobeyed his previous orders there was no reason to suspect that holding them in contempt would ensure future compliance.
Contempt sounds scary, and in exceptional circumstances it is honest-to-God frightening. But most of the time it’s toothless. Judges don’t like to get mixed up in the inevitable legal knots contempt proceedings cause, and courts don’t have an army to actually enforce their orders if they are going to impose any consequences short of immediate incarceration (in which case, I suppose, the bailiff can just grab the offending party in the courtroom).
Recently, New York Attorney General Letitia James filed documents seeking to hold Donald Trump in contempt of court. In the course of New York’s investigation into Trump’s business practices, James has subpoenaed him in order to obtain documents and information, and a previous court order required compliance with the latest subpoena by March 31.
According to James’s office, Trump failed to fully comply with the subpoena. In fact, the attorney general’s motion documents indicate that Trump “did not comply at all” — his attorneys allegedly refused to produce “any” documents. James is asking that the court impose a fine on Trump of at least $10,000 per day until he complies with the subpoena. Trump’s lawyers are set to defend against James’s motion in court on April 25.
As satisfying as it would be to hear that Donald Trump was held in contempt, this is likely just another exemplar of the impotence of contempt proceedings. For one thing, even if he was held in contempt and penalized with a $10,000 a day fine, the guy is supposedly worth something in the neighborhood of $2.5 billion (that’s the conservative estimate; he’s previously lied about being worth four times as much, which is kind of what got him in trouble with the New York attorney general in the first place).
It is difficult to imagine just how much money a billion dollars really is. Donald Trump is 75 years old. Let’s say he lives another 10 years, to the ripe old age of 85. If he’s fined $10,000 per day, that would be $3.65 million per year, or a little over $36.5 million over the next 10 years (there would be a couple leap years in there too). That’s less than 1.5% of his current fortune of $2.5 billion. So, Trump could comfortably pay a $10,000 per day fine every day for the rest of his life, and it wouldn’t amount to much more than a rounding error for him.
Plus, someone would have to try to collect the money. What happens when Trump simply refuses to pay the fines? The guy doesn’t have a stellar record of meeting his obligations.
I’m sure the NYAG’s heart is in the right place, and the attorneys working this case have to operate within the inherent structural limitations of a contempt proceeding. Still, I wish they could/would take a person’s net worth into account when deciding what to ask for as a sanction. Ten grand per day is not a meaningful threat to Trump. I guarantee he’s already paying his lawyers more than $10,000 per day anyway.
This is yet another missed opportunity to hold Donald Trump accountable, to show the whole country that the rules apply to everyone, even the rich, even former presidents. Unfortunately, nobody seems to have the backbone for that.
Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at email@example.com.
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