Constitutional Law
Judge finds probable cause to hold US in contempt; is Trump administration ‘at the cusp of outright defiance’?
Chief U.S. District Judge James E. Boasberg of the District of Columbia stands for a portrait at E. Barrett Prettyman Federal Courthouse in Washington, D.C., on March 16, 2023. (Photo by Carolyn Van Houten/The Washington Post via Getty Images)
A federal judge who banned the Trump administration from removing Venezuelan immigrants from the United States ruled Wednesday that there is probable cause to find the government in criminal contempt for willfully disobeying his directive.
The federal government transferred the deportees to a prison in El Salvador in Central America hours after he issued an injunction, the judge said, and officials’ boasts implied that it was done “deliberately and gleefully.”
Chief U.S. District Judge James E. Boasberg of the District of Columbia said he would give the Trump administration a chance to purge itself of contempt, and if the government doesn’t act, he would identify the people responsible for noncompliance. The final step would be a contempt prosecution, possibly by an appointed prosecutor.
CNN, the Washington Post, Law360 and the New York Times are among the publications with coverage of Boasberg’s April 16 order.
Boasberg ruled a day after U.S. District Judge Paula Xinis of Maryland ordered the administration to provide answers about why it apparently failed to “facilitate” the release of an immigrant mistakenly sent to the El Salvadoran prison, as ordered by the U.S. Supreme Court on April 10.
The government’s clashes with Boasberg and Xinis have led to the government’s arrival “at the cusp of outright defiance,” the New York Times reports in a separate article. Other examples of the administration’s defiant stance include its freezing of funds that have been ordered released and its refusal to allow the Associated Press to participate in the press pool, despite a federal judge’s decision requiring access.
Elora Mukherjee, a professor at Columbia Law School, told Courthouse News Service that the executive branch “is intent on pushing the bounds of its authority as far as possible and now beyond the breaking point of our constitutional democracy.”
In the case before Xinis, the government has argued that facilitating the return of the immigrant, Kilmar Armando Abrego Garcia, means only that it must “remove any domestic obstacles that would otherwise impede the alien’s ability to return here.”
The government argument “does not pass the laugh test,” Michael Dorf, a professor at Cornell Law SchooL, told the New York Times.
The New York Times concludes that defiance may not be in the form of an outright refusal to follow a judge’s order.
“It may be an appearance by a hapless lawyer who has or claims to have no information. Or it may be a legal argument so outlandish as to amount to insolence,” the article says.
Boasberg initiated contempt proceedings, even though the Supreme Court ruled April 7 that the case had been filed in the wrong venue. The Supreme Court said the immigrants could only challenge their deportation under the Alien Enemies Act of 1798 through a habeas action, which must be brought in the district in which they are confined.
Boasberg said the Supreme Court decision, which lifted his temporary restraining order preventing the deportations, “does not excuse the government’s violation.”
Every judicial order must be obeyed until it is reversed, he said.
“If a party chooses to disobey the order—rather than wait for it to be reversed through the judicial process—such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order,” Boasberg wrote.
Boasberg said the government could purge itself of contempt by giving the deportees sent to El Salvador a chance to challenge their removal in a habeas proceeding by asserting custody over them. The government would not have to release people or bring them back to assert custody.
If the government does not purge itself of contempt, Boasberg will require declarations and possibly testimony, he said. The next step, if needed, would be to seek a contempt prosecution by the Department of Justice, and, if that is declined, to appoint another prosecutor.
The Trump administration planned to seek “immediate appellate relief” from Boasberg’s ruling, according to the New York Times.
The case is J.G.G. v. Trump.
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