Some federal appeals court judges signaled Tuesday they were open to allowing a criminal contempt probe to restart into whether senior officials deliberately defied a judicial order last year on deportation flights to El Salvador.
The full U.S. Court of Appeals for the D.C. Circuit heard oral arguments on the contempt proceeding initiated by U.S. District Judge James Boasberg. A three-judge panel of the D.C. Circuit this year ruled that Boasberg had exceeded his authority and blocked the inquiry, but the full court is now reconsidering.
Boasberg started the contempt proceedings after administration officials went ahead with the flights despite his order to turn the planes around and keep the deportees in federal custody.
On Tuesday, several judges voiced doubts about the Trump administration’s claims that then-Homeland Security Secretary Kristi Noem was solely responsible for ordering the migrants to be transferred to El Salvador.
Trending
One said Noem may have been a “sacrificial lamb” offered up as a sort of cover for other officials. Boasberg was entitled to investigate whether other officials in her chain of command had advised her on the decision, several judges said.
“Do we just have to accept what you say?” Judge J. Michelle Childs asked government lawyer Brett Shumate. “Maybe there are other facts that the district court needs to find out about.”
At times, the questioning of Shumate grew heated. Raising her voice, Judge Patricia Millett brought up a Justice Department whistleblower’s report that Emil Bove, then a top DOJ official and now a federal judge, had suggested telling courts “fuck you” on orders blocking deportations.
“The district court has to find out what happened and who was in the room providing advice,” Millett said, adding that “others may well have been in contempt.”
Shumate pushed back on those assertions throughout the hearing, arguing that Boasberg was essentially taking on the role of a prosecutor in probing possible criminal contempt.
“The role of a judge is not to investigate a crime,” Shumate said. If judges do so, he said, “they’re no longer adjudicating a dispute.”
Shumate told the appeals court that referring the matter to a prosecutor would have been the appropriate course of action. He argued Boasberg had no basis to continue the probe, which he said amounted to “investigating the mental state of senior officials.”
Boasberg’s inquiry, he said, was also “unclear, unnecessary and futile” because the appeals court and Supreme Court had vacated Boasberg’s original order in the case. A final order ending the probe was necessary to prevent a “clash between branches” of government, he said.
The case arose last spring when the Trump administration rushed to send dozens of Venezuelan men to El Salvador’s notorious Terrorism Confinement Center, known as CECOT. The administration invoked the Alien Enemies Act, a seldom used wartime law, to accelerate the removals without normal due process protections.
The American Civil Liberties Union sued to block the deportations. Following late-night filings and a weekend hearing, Boasberg ordered that flights be halted and that the deportees remain in federal custody. The Trump administration transferred the men to Salvadoran authorities anyway, kicking off a legal fight that has wound through the court system over the past year and a half.
In Tuesday’s oral arguments, two of the panel’s Trump appointees, judges Neomi Rao and Justin Walker, voiced some support for the government’s position and spoke little during Shumate’s remarks.
Rao, who authored the opinion blocking Boasberg’s inquiry, said Boasberg’s attempt to probe involved questions that were “quintessential executive powers” and beyond the purview of the judiciary.
Under questioning from Rao, ACLU lawyer Lee Gelernt argued that it was “highly unlikely” that Noem “made all the decisions involved here” and said that the court shouldn’t take the government’s word that she acted alone.
Cutting the Boasberg’s inquiry short, Gelernt said, would “send a horrible message” to courts across the country. The government’s suggestion that the judge had “gone off the rails,” he said, “is a little bit gaslighting.”
Author
