Judge moves, cautiously, toward civil contempt in case over treatment of trans people in prison

“Once I issue an order, it’s my intent to enforce it,“ Judge Lamberth told the government. And: Facing the Trump administration's ridiculousness. Until the elevator door closes.

U.S. District Judge Royce Lamberth made clear on Wednesday morning that he had no problem holding Trump administration officials in contempt if needed.

“Once I issue an order, it’s my intent to enforce it,“ Lamberth, a Reagan appointee, told Jared Littman, the Justice Department lawyer who has been defending the Federal Bureau of Prisons (BOP) against allegations that it has violated a February 19 order from Lamberth by continuing to retaliate against witnesses in a case challenging the Trump administration’s treatment of transgender people in prison.

The purpose of the “show cause hearing” was to address Lamberth’s order for the BOP defendants to “show cause” why they shouldn’t face civil contempt due to allegations from Grace Pinson and her former roommate, Elmer Armando Moreno, that they have faced retaliation since Lamberth issued the February 19 protective order. DOJ filed its response on March 3, as ordered.

“I go all the way,” Lamberth told Littman, noting that he is the only sitting federal judge that he knows of who has held a cabinet member in contempt — something he did with multiple cabinet members over the course of a long-running case addressing Native American claims against the federal government. “Some courts fudge along the way. I don’t fudge.“

Ultimately, however, Lamberth was removed from the tribal funds case by the U.S. Court of Appeals for the D.C. Circuit 20 years ago this summer. The appeals court there held that “‘an objective observer is left with the overall impression’ … that the district court’s professed hostility to [the] Interior [Department] has become ‘so extreme as to display clear inability to render fair judgment.’”

Perhaps with that history in mind, Lamberth made clear on Wednesday that he would be proceeding cautiously in deciding whether and how to address the Trump administration’s actions in the case.

“Our goal here is simple,” Corine Kendrick with the ACLU, representing the plaintiffs, told Lamberth. “We want people to be safe.“

The hearing also came the day after the Justice Department also filed a motion for Lamberth to reconsider — and vacate — his protective order, something Lamberth had already told Littman he would view skeptically at last week’s hearing. (A corrected version of the motion for reconsideration — the first had an error in its table of contents — was filed on the docket Wednesday morning.)

Ultimately, Lamberth did not rule on the show cause order from the bench on Wednesday, taking the matter under advisement.

Additionally, while keeping prior protections in place for now, Lamberth ordered the parties to confer and present a joint plan for modifying the protective order or, if that doesn’t work, for the plaintiffs to respond to the motion for reconsideration within 14 days.

After the hearing ended — and after not having raised it when they were in front of Lamberth — DOJ filed a motion Wednesday afternoon asking the court to put on hold its Thursday deadline for BOP to provide notice of the protective order to all wardens of BOP facilities housing trans inmates.

The motion gave no reason why the issue was not raised in court. It also noted that the plaintiffs oppose the motion.

Lamberth did not rule on Wednesday, instead giving the plaintiffs until noon Thursday to provide their reasons for opposing to the motion, if they wish to do so.

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At the hearing

First, I want to acknowledge that Littman continually misgendered Pinson — something that went unaddressed throughout the hearing. If nothing else, it suggested something other than the seriousness with which Littman claimed the Trump administration was taking Lamberth’s concerns.

As to the substance, Littman argued both that Lamberth’s February 19 order was not sufficiently clear to form the basis for a civil contempt finding and that, in any event, the plaintiffs had not proven by “clear and convincing evidence“ that officials at FCI Butner in North Carolina, where Pinson is serving a prison sentence, had violated it.

Littman claimed that the warden at Butner had reviewed video relating to the claims raised by Pinson that disprove her allegations, saying that “infects the entire story” Pinson is telling.

At that point, Lamberth — who had already noted that there are “contrary sworn affidavits” submitted by Pinson and Moreno — interjected, “I haven’t seen the video.”

Essentially, Littman argued that there were legitimate penological reasons for some of the actions claimed as retaliation — such as alleged rule infractions — and that other claims were “completely fabricated.” (Both Pinson and Moreno are currently in the prison’s Segregated Mental Health Unit (SMHU), which is akin to solitary confinement.)

When Kendrick took to the podium, she argued that not only is the Trump administration in violation of the protective order, but that the March 3 response to the order to show cause violated the show cause order.

Noting the requirement of Lamberth’s show cause order …

… Kendrick highlighted the DOJ response included only “hearsay denials” through a declaration submitted by FCI Butner’s warden, Scott Garland. No declarations were submitted for the other seven named officials. Additionally, Kendrick noted that the declaration related to Pinson’s medical care was not submitted by the medical provider addressed in Pinson’s declaration but, instead, is from an administrator. They “chose” to do that, Kendrick told Lamberth, and under relevant precedent the court can take choice that into consideration.

Additionally, to the inadequacy of Garland’s declaration, Kendrick noted that Garland was on leave through February 22 — half of the days at issue between when the protective order was issued and when the plaintiffs filed their emergency motion alleging the retaliation.

As to the potential remedy, Kendrick said they believe Pinson should be released to a halfway house program or, at least, be allowed back into the general population of the prison, and Moreno should be allowed back into the general population. To prevent further violations, Kendrick said that, looking forward, Lamberth should assess a $50,000 fine for any future proven — or not challenged — violations.

When discussion of the motion for reconsideration of the protective order came up, Lamberth reiterated his skepticism as to any wholesale vacating of the order, telling Littman, “Good luck on that.“

Littman added that the protective order amounted, effectively, to an improper “obey the law” order — to which Kendrick responded that “unfortunately” similar orders are “routinely” issued in prison litigation.

At the end of Littman’s initial presentation, Lamberth addressed a portion of Pinson’s submission that Littman had not mentioned: Pinson’s claim that a prison official told her, “I don’t give a fuck what that judge says, I do what I want.“

Acknowledging the awkwardness of rebuking a prison official for doing so when President Donald Trump “denigrates” federal judges and Attorney General Pam Bondi and Deputy Attorney General Todd Blanche claim that judges’ decisions against the Trump administration are simply politicized opposition, Lamberth said, “It’s still something that’s very troubling to me.“

Prison officials can’t ignore court orders, he said, and it’s “troublesome to the courts” when such claims are raised.

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Beyond the hearing

That was a lot. And yet, it was two other encounters — before and after the hearing — that crystallized for me, as to the underlying anti-trans moment and the underlying lawlessness of this administration, why we were in court on Wednesday.

As the lawyers awaited Lamberth in the minutes before 11:00 a.m., an older man entered the courtroom, sat down, and soon began speaking — to no one or everyone, it was not quite clear.

He said that this was the only thing he agrees with President Donald Trump on.

Although it wasn’t initially clear that he knew the topic of the case being discussed on Wednesday, he then added that he has “dysphoria” — saying that he wished to be a “demigod,” and not a “demagogue” like Trump.

Just casual anti-trans banter from the gallery.

He was not told to be quiet, but, instead, was merely told that Lamberth would be taking the bench shortly.

At the conclusion of the hearing, in contrast, the issue was someone not wanting to speak.

A man with the government has been at the last two hearings relating to the contempt claim. Both times, he sat in the section of the courtroom open only to parties and counsel. Although not at counsel’s table, Littman and Jean Lin, the other Justice Department lawyer present at both hearings, has repeatedly consulted with him during both hearings.

After today’s hearing — and after not being able to figure out for myself who he was after the last hearing — I asked him who he was.

I had my press pass visibly displayed and identified myself as a reporter. He said he didn’t want to do that.

I suggested that he must be a government official or employee, sitting where he was, and, if so, I asked incredulously if he really was not going to tell a reporter at a hearing who he was.

He said no.

Then, the people leaving — myself included — got to the elevator. Littman, Lin, mystery man, and two other people sitting with mystery man on the government side of the courtroom during the hearing on Wednesday were getting into the elevator.

Some of them were already in the elevator. When I stepped in, mystery man said he would wait for the next elevator. Everyone else then got out of the elevator.

Left in the elevator alone, I looked at these five adults — all of whom I believe have to be government employees, hence, paid by the public and allegedly working for the public — and was some combination of bemused and appalled.

“You are all ridiculous,” I simply said.

The door closed.