A divided panel of judges on the D.C. Circuit Court of Appeals has temporarily paused an effort by District Court Judge James Boasberg to further investigate whether the Trump administration engaged in criminal contempt by refusing to turn around two flights of alleged Venezuelan gang members who were sent to a notorious prison in El Salvador last month.
In a 2-1 ruling, with Obama-appointed judge Nina Pillard dissenting, the court put a temporary hold on Boasberg’s determination finding probable cause the administration committed contempt of his March 15 oral and written rulings to turn the planes around, while ordering further disclosures from the government about which officials may have been directly involved.
The order does not rule in either way on the merits of Boasberg’s inquiry, however, and merely gives the petitioners in the case a deadline of April 23 by 5 p.m. to file their reply to the government. The government is then required to file their own reply by noon on April 25.
In a ruling Wednesday, Boasberg found probable cause that the Trump administration acted in contempt of court when it defied his order to return the deportation flights to the U.S.
As a remedy, Boasberg said the Trump administration must give each of the men removed under the Alien Enemies Act the right to challenge their detention through habeus proceedings or face the prospect of a criminal contempt case.
If the administration failed to act, Boasberg said he would begin the process of identifying who acted in contempt through sworn declarations, depositions or live testimony. If needed, Boasberg would request a government attorney prosecute a criminal contempt case or appoint an independent attorney to pursue the case.
The Supreme Court, in a 5-4 decision earlier this month, ruled that the Trump administration could resume deportations of alleged Venezuelan gang members under the Alien Enemies Act, ultimately vacating Boasberg’s initial order. But Boasberg concluded that, even if the order suffered from a “legal defect,” the Trump administration still defied the order during the three weeks it was in effect.
“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. “To permit such officials to freely ‘annul the judgments of the courts of the United States’ would not just ‘destroy the rights acquired under those judgments’; it would make ‘a solemn mockery’ of ‘the constitution itself.’”
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