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When an Oath of Poverty (or Waterboarding) Isn't Even Enough ... !

posted by Jason Kilborn

I've been following with some interest the saga of pitchman Kevin Trudeau and his battle with a federal judge here in Chicago. The judge refuses to believe that Trudeau is not hiding scads of wealth in offshore accounts to avoid paying a $37 million FTC fine against him. In a move that harkens back to the dark days of not-so-jolly old England,  the judge remanded Trudeau to prison for failing to reveal his supposed hidden assets. Indefinitely. No way out. Indeed, when Trudeau came back for the "have you had enough" hearing today, he offered to be waterboarded to prove that he wasn't hiding wealth offshore. The judge simply refused to believe him and, oddly, seems to have admitted that he "may never believe Trudeau has disclosed everything – waterboarding or not." If this isn't prejudicial bias, I'm not sure what is.

What a nightmare. And what a sad state of affairs for a country that has come so far since the days of imprisonment for debt. As more and more countries understand that heavy-handed tactics like this are not constructive, state and federal judges in the US continue to exercise discretion to imprison debtors with apparently no effective check on abuse of power. I'm not positively asserting that the judge here is abusing power, because I haven't followed every moment of the case. But I couldn't let yet another story about this case go by without observing that this really, really troubles me. Say what you will about Trudeau and the snake-oil salesmanship that got him into trouble with the FTC and ultimately led to his criminal contempt conviction, but this "I just don't believe you're not hiding assets, and I probably will never believe you" bit really challenges my faith in the rule of law in this country. Maybe I'm just horribly naive.


A bankruptcy judge that incarcerates anyone under his jurisdiction has had an accident in his courtroom and like all federal employees involved in accidents ought to be drug tested.
Having been incarcerated as an unsecured creditor by a bankruptcy judge for 42 days for being unable to pay a $3,500 sanction as a lump sum(for accusing estate counsel of fraud and fee gorging) I learned that incarceration for contempt appears to be a criminal punishment after about 6 months and it is not widely accepted that a bankruptcy court has criminal contempt powers.
My 42 days in federal prison is like a badge of courage that everyone with a degree in Sociology ought to experience. My degree is now complete.

The judge in the Trudeau case is a district judge, not a bankruptcy judge. So the question of a bankruptcy judge's contempt powers doesn't arise.

As for whether the district judge is behaving improperly, Trudeau (represented by Winston & Strawn, no less) raised that very issue in a petition for writ of mandamus filed with the Seventh Circuit on September 18, 2013. See Trudeau v. FTC, No. 13-3055. A three-judge panel denied the petition in a one-line order issued the same day. So yes, Prof. Kilborn, you're horribly naïve.

Civil contempt citations are the most suspect of all the summary powers exercised by the court.

The court is the accuser, prosecutor, trier, and sentences the contemptuous party, a process that usually takes a village instead of one chief.

There is no right to a trial by a jury, even though the serious penalty of indefinite incarceration is often the outcome, and you can be sent back to jail again and again for the same offense.

Penalties (notice I am not saying punishment) for civil contempt are meant to “coerce” the contemptuous party into compliance with the court’s order.

You are given the keys to your jail cell by obeying the court’s order.

Compare that with an outright criminal contempt citation where you are prosecuted by the US Attorney's Office, before a jury if you like, and punished for a definite term (and only once) if found guilty of intentionally disobeying a court order.

It is not horribly naive to question these procedures least the court, NSA, and FISA judges get full reign over our lives.

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