Trump administration officials will be spared criminal contempt proceedings after they ignored the D.C. chief federal judge’s orders to turn around planes full of migrants headed for a terrorist prison in El Salvador.
On Friday, the federal appellate circuit in the nation’s capital halted Judge James Boasberg’s attempt to figure out whether top Trump officials lied to him when they put more than 200 migrants aboard Immigration and Customs Enforcement planes on March 15.
During a court hearing that Saturday evening, Department of Justice lawyers who’d already been briefed at agency headquarters about the deportations, according to a whistleblower’s letter to senators, feigned ignorance about the ongoing operation, even as Boasberg commanded them to halt the flights.
“Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” Boasberg ordered. “However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”
But that wasn’t enough for Circuit Judge Gregory G. Katsas, who served as a White House lawyer during Trump’s first term until the president appointed him to the bench. In his concurrence on Friday, Katsas chalked up the episode to nothing more than a misunderstanding, faulting Boasberg for not being clear enough.
Katsas wrote that Boasberg’s temporary restraining order “was insufficiently clear to support criminal contempt,” reasoning that the written order that subsequently made it to the court docket “did not explain what constituted ‘removing’ class members.”
In their analysis, appellate judges also ignored a brewing scandal lurking in the background: a recent whistleblower’s revelation that a high-ranking Justice Department official had ordered prosecutors to defy any judge who tries to block the rushed deportations.
Those assertions, made by a prosecutor who was on that very team until he was fired, supported the idea that law enforcement officials were already dead set on flouting judicial orders when they planned the expedited and covert expulsion operation. The whistleblower, Erez Reuveni, claimed that Emil Bove — then the principal assistant deputy attorney general and a former Trump personal defense lawyer — had just one day earlier told staff that “DOJ would have to consider telling the courts, ‘Fuck you.’”
Reuveni has since been fired for insubordination. Trump recently made Bove a 3rd Circuit appeals judge with a lifetime appointment. And the nearly 230 migrants sent to El Salvador’s CECOT prison that weekend in March have been released to Venezuela.
Circuit Judge Neomi Rao, another Trump appointee on the appellate panel, painted Boasberg’s attempts to get to the bottom of what happened as an “intrusion on the president’s foreign affairs authority.”
“The district court’s abuse of the contempt power is especially egregious because contempt proceedings against senior executive branch officials carry profound ‘separation of power[s] overtones’ that demand the most ‘sensitive judicial scrutiny,” she wrote, partially quoting a 1979 appellate case.
However, both Katsas and Rao acknowledged there was yet another reason fueling their reluctance to uncover what DOJ officials knew when they ignored Boasberg’s orders: what Rao called a “high stakes clash between the executive branch and a district court.”
“In sum, the district court’s show-cause order would provoke many grave conflicts between the judicial branch and the executive branch at its highest levels,” Katsas observed, noting that it’s a fight he’d rather avoid than have the courts “grapple unnecessarily with the difficult, contentious issues.”
The lone dissent in the appellate panel’s decision came Circuit Judge Cornelia Pillard, an Obama appointee who warned about the cost of quickly pouring cold water on the growing firestorm between the nation’s judiciary and the White House.
“The rule of law depends on obedience to judicial orders,” she wrote. “Our system of courts cannot long endure if disappointed litigants defy court orders with impunity rather than legally challenge them. That is why willful disobedience of a court order is punishable as criminal contempt.”
Pillard also made it a point to defend Boasberg, the District of Columbia’s chief federal judge, whom Trump has insulted as a “troublemaker and agitator” and called for his impeachment.
“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,” Pillard wrote.