Federal appeals judges signaled that criminal contempt charges could reach beyond former Homeland Security Secretary Kristi Noem, whom one judge called a possible “sacrificial lamb.”
Ten of the 11 active judges on the U.S. Court of Appeals for the District of Columbia Circuit heard nearly three hours of arguments Tuesday over the Justice Department’s bid to shut down a contempt investigation.
The court “appears likely to allow” that investigation to proceed against Trump administration officials, according to Politico, and the inquiry could include criminal charges.
Chief U.S. District Judge James Boasberg launched the probe after the administration deported hundreds of Venezuelan migrants to El Salvador in March 2025, despite his order that appeared to require many of the men to stay in U.S. custody, reports from the Associated Press and Politico said.
In April, a divided three-judge panel of the D.C. Circuit ordered Boasberg to end his inquiry. The full court agreed in June to hear the case. The Justice Department identified Noem last year as the official responsible for ordering the deportations to go ahead despite Boasberg’s order, Politico reported.
On Tuesday, several judges said they were concerned the administration was making her a scapegoat while trying to cut off inquiry into others who may have been equally or more responsible.
“Do we have to just accept what you say?” Judge Michelle Childs, a Biden appointee, asked Justice Department attorney Brett Shumate. Noem, Childs suggested, “might be a sacrificial lamb.”
“The district court doesn’t have to accept that as the only relevant decision-maker,” said Judge Patricia Millett, an Obama appointee.
Judge Cornelia Pillard, also an Obama appointee, warned that the government’s approach could lead to a criminal referral, which sends a case to prosecutors, for someone “who was kept in the dark.”
Millett also asked why Boasberg should not be allowed to continue so he can decide whether other government officials deserve more scrutiny for possible criminal contempt, AP reported.
The judges suggested Boasberg should be able to identify other possible targets before referring the matter to a prosecutor. But Shumate argued that Boasberg must end his “unlawful, unnecessary and futile” investigation because a prosecutor, not a judge, investigates crimes.
“What’s gone off the rails in this case is that the district court has purported to investigate,” Shumate said, defending President Donald Trump’s administration.
“Are district courts allowed to decide if people have engaged in contempt in front of them?” Millett asked.
“The district court loses the authority to investigate,” Shumate replied.
“That’s not my question,” Millett interjected, raising her voice. “This is all about wordplay here on what you mean by the word ‘investigate.’”
The administration contends that Boasberg’s first order, which he gave orally, was unclear and that only a written order he issued shortly afterward was binding, Politico reported. The Justice Department has also argued the order stopped applying once the planes left U.S. airspace.
American Civil Liberties Union attorney Lee Gelernt, who represents the deported Venezuelans, told the judges the order was not unclear and that the government’s conduct at the time undercut any claim of ambiguity, according to Politico.
“Any prior administration … or any DOJ, I think, prior to this one would have sought clarification,” Gelernt said, adding that it was “highly unlikely that former Secretary Noem made all of the decisions here.”
Shumate warned that letting the inquiry continue was almost certain to raise separation-of-powers concerns about decisions made at the highest level of the executive branch.
“Two branches … are on a collision course,” the DOJ attorney warned.
“The separation of powers is going to run two ways here. It’s not a one-way street in favor of the executive branch,” Millett insisted.
“At bottom, what this case is about is whether Article III courts are at the mercy of the executive branch,” Pillard said. Article III of the Constitution establishes the federal courts.
ACLU attorneys have said the government’s decision to ignore Boasberg’s order had “devastating consequences” for the migrants, AP reported. The men were held for months at El Salvador’s Terrorism Confinement Center, known as CECOT.
“They were subjected to horrific physical and psychological abuse, and deprived of food, water, and medical care. They were regularly severely beaten by guards and subjected to other physical abuse, including being shot at close range with rubber bullets,” ACLU attorneys wrote.
The judges did not say how soon they would rule, according to AP. If the administration loses, it could ask the Supreme Court to weigh in, Politico reported.
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