In April, a federal appeals court in Washington took what seemed to be a fairly normal step: It temporarily put on hold a trial judge’s plan to begin contempt proceedings against the Trump administration to determine whether officials had violated his order stopping flights of Venezuelan migrants to El Salvador.
The move by the appeals court, known as an administrative stay, was supposed to have been an incremental measure intended to buy it time as it considered a more substantial type of stay — one designed to pause the case as the court dug into the merits of the contempt proposal laid out by the trial judge, James E. Boasberg.
But three months later, the three-judge panel that put the stay in place has done nothing at all to push the case forward, allowing it to languish in a kind of legal limbo. And the panel’s lack of action has caught the eye of some legal experts — if only because as it has sat on the case, new evidence has emerged that the Trump administration may have disobeyed Judge Boasberg’s order.
“It’s very unusual,” said Stephen I. Vladeck, a Georgetown University law professor. “An appeals court may need hours or days to figure out an administrative stay, but it doesn’t need weeks and certainly not months.”
The pause imposed by the three judges, who sit on the U.S. Court of Appeals in the District of Columbia, emerged from the first and one of the most contentious cases involving President Trump’s use of a powerful wartime statute, the Alien Enemies Act, to deport Venezuelans accused of being members of a street gang to a notorious prison in El Salvador.
On March 15, the Trump administration sent the first set of flights carrying immigrants to El Salvador, prompting an emergency hearing in front of Judge Boasberg. At the hearing, the judge told the Justice Department that any planes headed to El Salvador under the powers of the act needed to be stopped at once and that any planes already in the air should turn around.
That never happened, however, leaving nearly 140 Venezuelans accused of being members of the street gang Tren de Aragua in the custody of Salvadoran jailers.
For more than a month, Judge Boasberg used every means at his disposal to figure out whether Trump officials had willfully flouted his instructions, but was met with repeated obfuscations from the government. Ultimately, on April 16, he gave the White House a choice: It could provide the deported men with the due process they were denied when they were flown out of the country or it could face a searching contempt investigation that might, he cautioned, escalate into criminal charges being filed.
Two days later, the appellate panel voted 2 to 1 to stop that process in its tracks. Both of the judges who approved the stay — Gregory G. Katsas and Neomi Rao — were appointed by Mr. Trump.
For the next 10 days, the Justice Department and lawyers for the Venezuelan men traded court papers on the question of whether the stay should remain in place. But after that, the appellate case was completely dormant for nearly two months.
The panel did not ask for more briefing or schedule a hearing for debate. In fact, it gave no indication of its intentions whatsoever.
Then, on June 25, the lawyers for the Venezuelans notified the appeals court of a significant development. A former Justice Department lawyer, Erez Reuveni, had filed a whistle-blower complaint, accusing a senior department official of telling his subordinates that he would be willing to ignore Judge Boasberg’s orders in the deportation case.
“The planes needed to take off no matter what,” Mr. Reuveni quoted the official, Emil Bove III, as saying at a meeting before the hearing in front of the judge.
Mr. Bove then suggested that the department would need to consider ignoring court orders, using an expletive for emphasis, according to Mr. Reuveni’s account. “Mr. Reuveni perceived that others in the room looked stunned, and he observed awkward, nervous glances among people in the room. Silence overtook the room.”
The Justice Department quickly fired back on June 26, telling the appellate judges in a letter that Mr. Reuveni’s complaint should be “disregarded, if not stricken entirely” from the record of the case, because it contained unproven accusations.
“The material that plaintiffs filed — a letter on behalf of a former federal employee, styled as a whistle-blower complaint — does not even qualify as ‘evidence,’ let alone ‘authority,’” the Justice Department wrote. “It is a set of allegations, leaked to the press for political reasons and in violation of ethical duties, that the government forcefully denies.”
After that letter was filed, the appellate case descended again into radio silence.
The same three-judge panel also imposed an administrative stay on a separate order Judge Boasberg issued in the case, directing the administration to “facilitate” giving the deported Venezuelan men due process. That stay was issued on June 10, but the panel has not signaled what it might do next.
While lengthy administrative stays are not unheard-of, the Supreme Court justice Amy Coney Barrett criticized the practice in a concurring opinion issued in March 2024 in a case about a Texas immigration law.
Justice Barrett said administrative stays could be problematic because they can be issued quickly and without delving into the merits of a case. If left to linger, she suggested, they could be used as a way to freeze a case in place without discussing any of its underlying facts.
“An administrative stay should last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal,” she wrote.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.
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