Rules 42 and 45: Federal Contempt Powers, Penalties, and Defenses

Federal contempt of court is governed by two main procedural rules and one short statute working together. Federal Rule of Criminal Procedure 42 sets out how a federal court punishes criminal contempt, Federal Rule of Civil Procedure 45(g) covers what happens when someone ignores a subpoena, and 18 U.S.C. § 401 supplies the underlying power to impose fines, imprisonment, or both.¹ The rules and penalties that apply to any given case depend on one threshold question: is the contempt criminal or civil?

The Two Kinds of Federal Contempt

Criminal contempt looks backward. It punishes conduct that already happened, with a fixed sentence — a set number of days in jail, a flat fine, or both — and complying with the underlying order afterward does not erase the sentence. Civil contempt looks forward. It exists to pressure someone into doing what the court has ordered, and the classic formulation is that a civil contemnor holds the keys to their own cell: the sanction ends the moment they comply.²

The label controls the procedure. Criminal contempt triggers constitutional protections including proof beyond a reasonable doubt and, in serious cases, a jury trial. Civil contempt carries fewer protections because the person can walk free by complying. The line can blur. When a court imposes large coercive fines for violating a complex injunction, the Supreme Court has held that those fines are functionally criminal and require full criminal procedural protections regardless of what the court calls them.³

When a Judge Can Punish Contempt on the Spot

Rule 42(b) authorizes the most immediate form of contempt power. A judge who personally sees or hears contemptuous conduct in the courtroom can punish it summarily, without a hearing, without a prosecutor, and without advance notice.⁴ The rationale is practical. Some disruptions — shouting at the judge, threatening a witness, refusing to sit down — need an immediate response or the proceedings collapse.

One safeguard applies. The judge must sign a written order that recites the specific facts of the misconduct and file it with the clerk.⁴ Vague language like “the defendant was disruptive” will not survive appeal. The certification must describe what was said, what was done, and how it obstructed the proceeding.

Summary power has one built-in disqualification. Under Rule 42(a)(3), if the contempt involves personal disrespect toward or criticism of the judge, that judge cannot preside over the contempt proceeding unless the defendant agrees.⁵ A judge who has been personally insulted cannot serve as neutral arbiter of whether the insult was punishable. The result is counterintuitive: the most emotionally charged contempt scenes are exactly the ones that must be handed to a different judge and prosecuted through the notice-and-hearing route.

Magistrate judges have a narrower version of this power. Under 28 U.S.C. § 636(e), a magistrate judge can summarily punish disruptive courtroom behavior, but the penalty cannot exceed Class C misdemeanor levels.⁶ For anything more serious, or for contempt that happened outside the magistrate’s presence, or for civil contempt, the magistrate judge certifies the facts to a district judge, who handles the case.

When Contempt Requires Notice and a Hearing

Most contempt does not happen in front of the judge. A party violates a court order out in the world. A witness ignores a deadline to produce documents. A former spouse defies an injunction. These situations fall under Rule 42(a), which requires a formal prosecution with notice and an opportunity to defend before any punishment.⁴

The notice has three requirements. It must state the time and place of the trial, give the defendant a reasonable amount of time to prepare a defense, and describe the essential facts making up the charged contempt.⁵ The notice can be an order to show cause, an arrest order, or a statement made in open court. What it cannot be is vague, because the accused needs to know exactly what conduct is charged to mount any real defense.

The court must also appoint someone to prosecute. Rule 42(a)(2) requires the court to ask a government attorney first, and only if the government declines may the court appoint a private attorney.⁵ The point is to keep the prosecution independent from the judge and the parties.

Ignoring a Subpoena Under Rule 45(g)

Rule 45(g) gives federal courts authority to hold in contempt any person who has been served with a subpoena and fails to comply without adequate excuse.⁷ This covers subpoenas for testimony, documents, and electronically stored information. The court that acts is the one where compliance is required; if a motion to compel has been transferred, the issuing court can act as well.

Two prerequisites have to be satisfied before contempt is on the table. The subpoena must have been properly served, and the person must have received the mandatory witness fees under 28 U.S.C. § 1821.⁸ If those fees were not tendered at the time of service, the subpoena is defective and noncompliance is not contempt.

“Adequate excuse” gives courts flexibility, but the burden falls on the person claiming it. Undue burden is the most common defense; Rule 45(d)(3)(A)(iv) requires the court to quash or modify a subpoena that imposes undue burden, and the issuing party has an affirmative duty to avoid unreasonable costs on the recipient.⁹ Genuine medical emergencies, technical defects in the subpoena, and demands that would force disclosure of privileged communications have also been recognized. Inconvenience will not do. A person who simply ignores a subpoena without filing a timely motion to quash is in a far weaker position than one who raised objections through the proper channels before the compliance deadline.

Jailing a Witness Who Refuses to Testify

Separate from Rule 45, the federal recalcitrant witness statute at 28 U.S.C. § 1826 applies when a witness in any federal court or grand jury proceeding refuses to testify or produce information after being ordered to do so. The court can summarily confine the witness until they agree to comply.¹⁰ Unlike general contempt, this statute has a hard ceiling: confinement cannot exceed 18 months or the life of the court proceeding or grand jury term, whichever is shorter.

This comes up most often in grand jury investigations, where witnesses sometimes refuse to testify even after immunity has overcome their Fifth Amendment privilege. The witness stays in jail until they decide to talk, the grand jury’s term expires, or the 18 months runs out.

How Far the Penalties Can Go

Because 18 U.S.C. § 401 sets no statutory maximum, criminal contempt penalties are, in theory, unlimited for a district judge acting within constitutional bounds.¹ In practice, the six-month line changes everything. Any sentence exceeding six months triggers the constitutional right to a jury trial, and a judge who imposes a longer sentence without a jury has acted unconstitutionally.¹¹ The rule also covers stacking. If a judge imposes multiple contempt charges from a single proceeding and the aggregate sentence exceeds six months, the defendant was entitled to a jury even if no individual charge crossed that line.¹²

Magistrate judges face tighter limits. Their criminal contempt sentences cannot exceed the penalties for a Class C misdemeanor, and anything more serious must be certified to a district judge.⁶

Civil contempt sanctions look different because they serve a different purpose. Instead of a fixed sentence, the court usually imposes escalating per-day fines or open-ended imprisonment designed to coerce compliance. The defining feature is the purge provision: the contemnor must have a clear, achievable way to end the sanction by complying with the order.² A civil contempt order with a fixed jail term and no chance to purge is really a criminal sanction wearing a civil label, and courts will treat it that way.

The purge provision also creates a ceiling. Before locking someone up for civil contempt, the court must determine that the person actually has the present ability to comply. Coercion serves no purpose when compliance is genuinely impossible. If you prove the ordered documents were destroyed in a fire, jailing you is not coercion; it is punishment, and punishment requires criminal procedural protections.

Defenses You Can Raise

The informal, judge-driven nature of contempt proceedings makes the available defenses especially important. Several constitutional protections apply, though the level of protection depends on whether the contempt is civil or criminal.

Jury Trial

For criminal contempt, the jury-trial right turns on the seriousness of the penalty. Since § 401 has no fixed maximum, courts look at the penalty actually imposed, and imprisonment beyond six months is impermissible without a jury.¹¹ Below that threshold, the judge may proceed without a jury. Civil contempt generally carries no jury-trial right because the sanction is coercive, but large coercive fines for violating complex injunctions can cross into criminal territory and pull jury protections with them.³

Fifth Amendment

The privilege against self-incrimination applies in contempt proceedings just as elsewhere. A witness can invoke the Fifth Amendment to avoid answering questions whose answers could be used in a future criminal prosecution.¹³ The privilege does not, however, excuse you from proving that compliance is impossible. If you claim you cannot turn over ordered records because they no longer exist, you carry that burden yourself and cannot hide behind the privilege to avoid meeting it.¹⁴

Impossibility

Good-faith inability to comply with a court order is a complete defense to contempt. The emphasis is on “good faith.” Courts draw a sharp line between being unable to comply and choosing not to. If you claim you cannot pay a fine or produce a document, you have to show what efforts you made, why they fell short, and that your failure was not the result of your own earlier choices to put yourself in that position.¹⁴ Most contested contempt proceedings end up here — not on whether the order was valid, but on whether the person really tried to follow it.

Right to Counsel

The right to an attorney depends on the type of contempt. Criminal contempt proceedings with serious potential penalties carry a Sixth Amendment right to counsel, including appointed counsel for those who cannot afford one. In civil contempt, the picture is thinner. The Supreme Court held in Turner v. Rogers that the Due Process Clause does not guarantee appointed counsel in civil contempt proceedings, though the court must use alternative procedural safeguards — such as clear notice of the ability-to-pay issue and an express finding on the record — to ensure fundamental fairness.¹⁵

Appealing and Stopping the Sanction

Criminal contempt orders are final judgments and can be appealed directly. Civil contempt orders are trickier; they are generally not final until the underlying case ends, though courts have carved out exceptions for certain sanctions. Either way, filing an appeal does not automatically pause the sanctions.

To stop fines from accruing or avoid reporting to jail while an appeal is pending, you have to file a motion for a stay. Under Federal Rule of Appellate Procedure 8, that motion ordinarily goes to the district court first.¹⁶ Only if the district court denies the stay, or if seeking one there would be impractical, can you go directly to the court of appeals. The appellate motion has to explain why a stay is warranted, include supporting evidence, and provide relevant parts of the record. The court may condition the stay on posting a bond or other security. For criminal contempt arising from a criminal case, the stay rules under Federal Rule of Criminal Procedure 38 apply instead.

For witnesses confined under 28 U.S.C. § 1826, the appeal is accelerated. The appellate court must resolve it within 30 days, and bail pending appeal is denied if the court concludes the appeal is frivolous or filed to cause delay.¹⁰

1
Office of the Law Revision Counsel. 18 USC 401 – Power of Court
2
United States Department of Justice. Tests for Distinguishing Between Civil and Criminal Contempt – Purging
3
Legal Information Institute. International Union, UAW v Bagwell, 512 US 821 (1994)
4
Legal Information Institute. Federal Rules of Criminal Procedure Rule 42 – Criminal Contempt
5
Office of the Law Revision Counsel. 18 USC App Fed R Crim P Rule 42 – Criminal Contempt
6
Office of the Law Revision Counsel. 28 USC 636 – Jurisdiction, Powers, and Temporary Assignment
7
Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Section: Rule 45(g) Contempt
8
Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence
9
Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Section: Rule 45(d)(3)
10
Office of the Law Revision Counsel. 28 USC 1826 – Recalcitrant Witnesses
11
Legal Information Institute. Petty Offense Doctrine and Maximum Sentences Over Six Months
12
Legal Information Institute. Codispoti v Pennsylvania, 418 US 506 (1974)
13
Legal Information Institute. General Protections Against Self-Incrimination Doctrine and Practice
14
U.S. Department of Justice. Defenses – Inability Versus Refusal to Comply
15
Constitution Annotated. Inherent Powers Over Contempt and Sanctions
16
Legal Information Institute. Federal Rules of Appellate Procedure Rule 8 – Stay or Injunction Pending Appeal