Judge Boasberg to launch contempt proceedings into Trump administration

Chief U.S. District Judge James E. Boasberg of Washington, D.C., on Wednesday said that he would launch proceedings to determine whether any Trump administration officials defied his order not to remove Venezuelan migrants from the country based on the wartime Alien Enemies Act and should face criminal contempt charges.

“The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it,” the judge said in a written ruling. Allowing political leaders to defy court judgments would make “a solemn mockery” of “the constitution itself,” he said.

Boasberg’s order is the latest development in a broader showdown between the Trump administration and the federal judiciary, which has blocked or slowed many of the White House’s far-reaching actions. The Supreme Court ruled this month that the plaintiffs in the Venezuelan migrants’ case filed their lawsuit in the wrong venue, taking the central legal issues of the case away from Boasberg.

Still, Boasberg said that ruling did not excuse Trump administration officials from following his orders while they were still in place. He characterized the administration’s decision to proceed with removal flights on March 15 and 16 despite his order not to as “a willful disregard … sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt.”

Criminal or civil contempt proceedings against the federal government for disobeying a court order are complex and rare, and significant penalties even rarer. Any officials convicted of criminal contempt could be fined or jailed up to six months under a statute and federal court rule cited Wednesday by Boasberg.

Boasberg has pressed the Justice Department for weeks on why the administration deposited more than 130 Venezuelan deportees in a Salvadoran megaprison without due process, hours after he ordered the administration not to do so and said any planes that had already taken off should be turned around and returned to the United States. His Wednesday decision has few modern parallels and embarks the court on a multistage and potentially weekslong process. First up will be fact-finding to determine who in the administration knew about his order at the time, and who, if anyone, gave instructions for the planes transporting the migrants to El Salvador not to turn around.

The judge said he would give the government an opportunity to remedy the matter, such as by asserting custody of individuals so they can exercise their right to challenge their removals, a step that would not necessarily require their release or return to the United States. Otherwise, Boasberg said he would direct it to identify the officials who knowingly defied his previous order. If it declined, the judge said he would seek sworn declarations from witnesses or testimony under oath so he could “refer the matter for prosecution.” And if the Justice Department declined to act, he would appoint a lawyer to do so.

Administration officials have broadly maintained they’ve complied with all court orders, even as they’ve repeatedly walked right up to the line of open defiance and publicly attacked Boasberg and other judges for seeking to restrain the president’s agenda.

On Tuesday, U.S. District Judge Paula Xinis in Maryland excoriated administration officials for doing “nothing at all” to comply with her order a week ago to facilitate the return of a Maryland man officials have acknowledged they mistakenly deported to El Salvador.

The government Wednesday evening filed notice that it had appealed Boasberg’s order. Steven Cheung, White House communications director, said in an emailed statement “the President is 100% committed to ensuring that terrorists and criminal illegal migrants are no longer a threat to Americans and their communities across the country.” Tricia McLaughlin, a Department of Homeland Security spokeswoman, said in an emailed statement: “The Supreme Court already rebuked him. Lawless.” A Justice Department spokesperson did not immediately return requests for comment.

Meanwhile, lawyers for the plaintiffs in the case backed the decision.

Skye Perryman, president and CEO of Democracy Forward, co-counsel in the case, said in a statement that Boasberg’s decision “affirms what we have long known: the government’s conduct in this case is unlawful and a threat to people and our constitution.” Lee Gelernt, the American Civil Liberties Union’s lead counsel in the case, said Boasberg is “very focused on the return of the individuals sent to the notorious Salvadoran prison with no due process and that is our overriding concern as well.”

The government launched the deportations after President Donald Trump invoked the Alien Enemies Act, which until now had only been used in wartime. The law was last used during World War II to detain Japanese, Italian and German nationals, and it laid the foundation for the incarceration of more than 110,000 Japanese Americans.

Trump officials have refused to provide Boasberg with detailed explanations of the timing of the deportation flights, first arguing that his order to return the planes lacked full judicial weight because it was verbal, not in writing, and then saying the order did not need to be enforced once the planes were out of U.S. airspace.

“The Court … has given Defendants ample opportunity to rectify or explain their actions,” Boasberg wrote in a 46-page opinion Wednesday. “None of their responses has been satisfactory.”

The government has invoked the state secrets privilege to avoid giving additional information to Boasberg, saying that disclosing it would jeopardize national security. Boasberg has been skeptical of that assertion, noting that he has frequently presided over cases involving sensitive national security information and that any such information could be presented under seal.

In court early this month, the judge grilled a Justice Department lawyer for answers, his eyebrows raised and eyes wide as he suggested that government officials had acted in “bad faith” and intentionally rushed to load migrants onto planes and fly them out of the country before he could order them to stop.

“Who made the decision either not to tell the pilots anything or to tell them to keep going?” the judge asked.

“Your honor, I don’t know that,” Deputy Assistant Attorney General Drew Ensign said.

Boasberg pledged to “get to the bottom” of the matter.

But before he could do so, the Supreme Court overturned the judge’s ruling ordering the return of the deportation flights. A majority of the justices found that “detainees subject to removal orders under the [Alien Enemies Act] are entitled to notice and an opportunity to challenge their removal,” but the high court added that such challenges must be reviewed by judges in the districts where the migrants are confined. In the case of the Venezuelans, that meant Texas, where district court decisions are reviewed by the conservative U.S. Court of Appeals for the 5th Circuit.

Boasberg wrote in his opinion Wednesday that the Supreme Court’s decision “does not excuse the Government’s violation.”

“Instead, it is a foundational legal precept that every judicial order ‘must be obeyed’ — no matter how ‘erroneous’ it ‘may be’ — until a court reverses it,” the judge wrote, citing a Supreme Court precedent from 1967. “That foundational ‘rule of law’ answers not just how this compliance inquiry can proceed, but why it must.”

In a 2017 Just Security article, Nicholas Parrillo, a Yale Law School professor, wrote that holding an official accountable for noncompliance is especially complicated because “the judge must figure out which official(s) should’ve acted, and what the official(s) should’ve done.” His study also found imprisonment has occurred only twice, never for more than a few hours. One of the judges was later removed for bias. The other recused himself.

Still, in Washington’s federal courthouse, U.S. District Judge Royce C. Lamberth notably found three Cabinet secretaries and an assistant secretary across two different presidential administrations in civil contempt in a class-action lawsuit by Native American landowners who alleged the U.S. government had failed to pass on more than 100 years of royalties owed for oil, timber and mineral leases.

The suit marked the first time in modern history that Cabinet officials had been so sanctioned, and ended in a $3.4 billion settlement in 2010. A federal appeals court upheld the outcome but removed Lamberth from the case and overturned the contempt findings against two officials still in office, saying that they could only be found in criminal contempt.