A federal appeals court on Tuesday appeared ready to revive a stalled investigation into possible contempt charges for Trump administration officials who ignored a judge’s orders last year to halt flights of Venezuelan migrants to a prison in El Salvador.
The full D.C. Circuit appeals court held a rare “en banc” hearing on the issue, with several of its 11 active judges signaling that the district court judge handling the case, James E. Boasberg, had the legal authority to investigate which administration officials may have violated his March 2025 orders to turn back the planes.
The D.C. Circuit’s ruling, expected within months, could pave the way for Boasberg’s contempt inquiry to advance after months of litigation delays — or it could prove a temporary step before the battle ends up at the Supreme Court. A three-judge panel of the D.C. Circuit most recently stopped the contempt proceedings in April.
President Donald Trump had invoked rarely used wartime powers under the Alien Enemies Act of 1798 to designate dozens of migrants as members of a Venezuelan gang, Tren de Aragua, but they were not given the opportunity to challenge those alleged gang ties in court before being flown to El Salvador, Boasberg found.
When the judge ordered the flights to turn back at an emergency hearing in March 2025, then-Homeland Security Secretary Kristi L. Noem decided to proceed with them, according to a declaration Noem submitted in the case.
Boasberg took the unusual step of launching the contempt inquiry in April 2025. Justice Department attorneys say there was no violation of Boasberg’s orders. Many of the men have since been transported to Venezuela.
Seven of the 11 active judges on the D.C. Circuit were nominated by Democratic presidents, three by Trump and one by President George H.W. Bush.
The three Trump appointees have all previously ruled to stop the contempt proceedings, but overall, most of the 11 active judges on the court have signaled in writing over the last year that Boasberg was justified in starting the inquiry. Those judges’ positions appeared unchanged at Tuesday’s hearing.
Judge Cornelia Pillard, an appointee of President Barack Obama, said the case raised questions about the executive branch’s compliance with court orders. If “judges’ orders are optional with the United States as a litigant, and they can disregard the orders with impunity, that’s obviously a diminution of the authority of the Article III courts,” Pillard, referring to federal courts, told a Justice Department attorney at the hearing.
A majority of the court seemed ready to let Boasberg proceed with investigating at least who, other than Noem, may have been involved in the decision to defy the court orders on the migrant flights. Judge J. Michelle Childs, an appointee of President Joe Biden, said the administration could be holding out Noem as a “sacrificial lamb.”
“The district court has to find out what happened and who was in the room providing the advice,” Judge Patricia Millett, an Obama appointee, said.
Brett Shumate, a Justice Department attorney, argued that judges such as Boasberg could not investigate which officials may have been involved in violating a court order and then make neutral decisions on whether to refer those people for prosecution on criminal contempt charges. “What’s gone off the rails in this case is the district court has purported to investigate,” he said.
Justice Department attorneys argued that Boasberg’s “intrusive and rapidly metastasizing criminal investigation” intruded on core constitutional powers that give prosecutors in the executive branch the discretion to decide which crimes to investigate and charge.
Judge Neomi Rao, a Trump appointee, said at Tuesday’s hearing that finding out who other than Noem might have defied the court orders were “quintessential” questions for a prosecutor.
Lee Gelernt, an attorney for the Venezuelan men at the American Civil Liberties Union, said the Supreme Court ruled in a 1987 case that the federal courts have “inherent authority” to appoint a private attorney to prosecute a contempt charge, without needing the Justice Department’s involvement. Gelernt said Boasberg had been measured throughout the case and disputed that the judge was “going off the rails.”
Gelernt said the administration had taken extraordinary action that required the judge’s scrutiny.
“No prior DOJ or administration has ever taken these kind of egregious actions, and it’s so disrespectful to the judiciary,” Gelernt said.
Millett, who had several pointed exchanges with Shumate during the hearing, said “the separation of powers is going to run two ways here.”
“It’s not a one-way street in favor of the executive branch,” the judge said. “I think the Supreme Court’s been crystal clear that the contempt power is an inherent power of the courts necessary for them to function.”
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