A federal appeals court panel voted 2-1 Friday to scrap a judge’s probable cause finding to hold Trump administration officials in criminal contempt for disobeying his order to turn around deportation flights ultimately destined for El Salvador.
The U.S. Court of Appeals for the District of Columbia Circuit ruled the administration was entitled to an intervention because U.S. District Judge James Boasberg’s efforts to punish administration officials raised immediate concerns.
“The order forces a coequal branch to choose between capitulating to an unlawful judicial order and subjecting its officials to a dubious prosecution,” wrote U.S. Circuit Judge Neomi Rao, who was in the majority.
Rao was joined by U.S. Circuit Judge Gregory Katsas, both Trump appointees.
U.S. Circuit Judge Cornelia Pillard, an appointee of former President Obama, dissented. She complimented Boasberg for his “skill and wisdom” handling the case, which has sparked impeachment threats from Trump and a barrage of public criticism from his supporters.
“Even when faced with what reasonably appeared to him to be foot dragging, evasion, and outright disregard for his jurisdiction and his orders, he responded with unfailing composure,” Pillard wrote.
“The majority does an exemplary judge a grave disservice by overstepping its bounds to upend his effort to vindicate the judicial authority that is our shared trust,” she continued.
Boasberg entered the national limelight for being assigned the first lawsuit when Trump invoked the Alien Enemies Act in March to swiftly deport alleged Venezuelan gang members to a notorious Salvadoran megaprison.
At a hastily convened Saturday hearing that weekend, Boasberg ordered the administration turn around any airborne planes deporting migrants under the rarely invoked statute. The order was later wiped by the Supreme Court, but the judge has accused the administration of willfully disregarding it and still sought to hold officials responsible.
“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,” Boasberg wrote in his contempt ruling. Boasberg is an Obama appointee.
Boasberg is an Obama appointee.
The D.C. Circuit halted the contempt proceedings as it considered the administration’s appeal. It did so without explanation by issuing an “administrative stay,” which normally lasts for only a short period until the court can hear from the parties. But it had been in effect since April.
In that time, a Justice Department whistleblower stepped forward with allegations that Emil Bove, then in the No. 3 role at the Justice Department, floated defying any potential court orders blocking use of the Alien Enemies Act, saying they may need to tell the courts “f‑‑‑ you.”
The complaint from Erez Reuveni detailed other instances of Justice Department officials seeming to defy Boasberg’s order once it was in place, including attorney Drew Ensign telling Boasberg that he was unaware whether flights would be taking off in the next 24-48 hours.
“He knows they are being removed,” Reuveni said of Ensign, texting a coworker during the hearing, specifying that he knows “about the flights.”
The coworker agreed, saying, “He knows there are plans for AEA removals within the next 24 hours.”
“It’s a question if Drew gets out without a sanction,” the coworker added.
Bove, who was recently confirmed by the Senate for a judgeship on the 3rd Circuit Court of Appeals, largely dodged questions about whether he used the expletive during his confirmation hearings.
“I’ve certainly said things encouraging litigators at the department to fight hard for valid positions that we have to take,” Bove responded when asked about whether he endorsed defying a court order.
“I certainly conveyed the importance of the upcoming operation,” he added about the Alien Enemies Act flights.
The long delay in reaching a decision was noted by members of Congress, who argued the delay in a ruling from the appeals court helped shield inquiries into the actions of Bove, who declined to answer numerous questions about the matter while it was still before the court.
The matter was pending before the three judges for more than three months.
“It is hard to see why an administrative stay of this length, imposed ‘to give the court sufficient opportunity to consider the emergency motion’ seeking a stay pending appeal, would ever be justified. As you know, administrative stays ordinarily last for ‘hours or days,’ not ‘weeks and certainly not months,’” Sens. Sheldon Whitehouse (D-R.I.) and Richard Blumenthal (D-Conn.) wrote in a letter last week to their chief judge before going on to raise the specter of political considerations.
“Given the obvious relevance of the outcome of this contempt investigation to Mr. Bove’s fitness for judicial office, and the timing, the extraordinary length of the administrative stay raises alarming questions about whether the stay was imposed for the purpose of fending off honest fact-finding while this confirmation proceeding went forward.”
The underlying case over Trump’s use of the Alien Enemies Act is still moving forward in Boasberg’s court. But its future remains unclear now that the deported migrants have been released from the Salvadoran megaprison and transferred to Venezuela in a large-scale prisoner swap.
The American Civil Liberties Union, which represents the migrants, told Boasberg in a written update Thursday that many of the Venezuelans wish to still pursue their cases to return to the United States.
Updated at 12:38 p.m. EDT
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