A federal judge Wednesday found probable cause to hold the Trump administration in criminal contempt for willfully disobeying his order to immediately halt deportations under the rarely used Alien Enemies Act and turn around any airborne planes.
U.S. District Judge James Boasberg’s order gives the administration a final opportunity to come into compliance but says he otherwise will take steps to identify the specific people who flouted his March 15 ruling, which was later lifted by the Supreme Court, and refer them for prosecution.
“The Court ultimately determines that the Government’s actions on that day demonstrate a willful disregard for its Order, sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt,” Boasberg wrote.
“The Court does not reach such conclusion lightly or hastily; indeed, it has given Defendants ample opportunity to rectify or explain their actions. None of their responses has been satisfactory,” he continued.
The order is a blow to a Trump administration that has dug in on its claims it has no obligation to return any of the men swiftly deported to a Salvadoran prison after Trump invoked the 1798 Alien Enemies Act, which has been used only three previous times, all during wars.
In the order, Boasberg faulted the administration for having “spirited out” of the country more than 100 Venezuelans amid their efforts to challenge the legality of their deportations. He also highlighted top Trump officials’ social media posts, including one by Secretary of State Marco Rubio, relishing that the flights were still headed to El Salvador.
“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,” he wrote.
Boasberg is an appointee of former President Obama who was previously nominated to a local court by former President George W. Bush.
The Hill has reached out to the Justice Department for comment.
Boasberg’s order gives the Trump administration an opportunity to “purge” or rectify its contempt, but stopped short of requiring what he called “the most obvious way” for the administration to do so, instead asking the government to propose options for doing so.
“The most obvious way for Defendants to do so here is by asserting custody of the individuals who were removed in violation of the Court’s classwide TRO [temporary restraining order] so that they might avail themselves of their right to challenge their removability through a habeas proceeding,” he wrote.
“Per the terms of the TRO, the Government would not need to release any of those individuals, nor would it need to transport them back to the homeland. The Court will also give Defendants an opportunity to propose other methods of coming into compliance, which the Court will evaluate.”
The judge acknowledged that the Supreme Court later found the order was legally defective but said it does not “excuse the Government’s violation.”
Unanimously, the justices agreed that migrants must have an opportunity for judicial review before they are deported under the Alien Enemies Act, but a majority held that they must bring their challenge via a habeas petition, which must be brought where someone is physically detained.
The parties are set to tell Boasberg later Wednesday whether they believe the case can still move forward in the wake of the Supreme Court’s ruling. Meanwhile, the American Civil Liberties Union has taken the high court’s direction and filed several new challenges throughout the country, which remain ongoing.
Updated at 12:46 p.m. EDT
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