Boasberg: Give Alien Enemies Act Detainees A Chance In Court Or Else Face Criminal Contempt

D.C. Chief Judge James Boasberg has found probable cause to hold the Trump administration in criminal contempt for defying his order last month to turn planes around that were removing people to El Salvador under an Alien Enemies Act invocation.

In a Wednesday order, Boasberg gave the government a deadline of April 23 either to comply with his initial order and thereby purge the contempt or, alternatively, identify members of the administration who should be subject to individual sanctions for their role.

In doing so, Boasberg seems to be leveraging the threat of criminal contempt of court to secure judicial review for the more than 100 Venezuelan nationals imprisoned in El Salvador for the last month without due process.

“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,” the opinion reads.

Invoking the federal rule on criminal contempt, Boasberg laid out options for himself should the Trump administration go down the route of contempt: The judge could direct the DOJ to prosecute. If the government failed to do so, Boasberg said, he could then appoint a special prosecutor himself who would  prosecute the contempt.

The decision depicts the Trump administration has having gone to extraordinary lengths to hide the Alien Enemies Act removals from any kind of judicial oversight. The administration prepositioned more than 100 Venezuelans for removal, kept the Act’s invocation secret for a day, and tried to delay hearings before Boasberg, the judge said, all before continuing to remove people to El Salvador even after the court had specifically directed them to halt.

After it all, government officials bragged that they had “defied the Court’s Order deliberately and gleefully,” Boasberg wrote, pointing specifically to a tweet from Secretary of State Marco Rubio.

The judge added later that the government had failed to provide a persuasive argument to avoid the “obvious” conclusion: “that they deliberately flouted this Court’s written Order and, separately, its oral command that explicitly delineated what compliance entailed.”

It’s the first substantial order that Boasberg has issued in the case after the Supreme Court dissolved his restraining orders last week while requiring that the government provide enough notice to Alien Enemies Act deportees to file habeas petitions challenging their removal.

In the 46-page ruling, Boasberg suggested that he might require the government to prosecute officials responsible for refusing to turn the planes around, or appointing a prosecutor himself if the Trump administration were to disobey that order.

The entire Alien Enemies Act removal saga has played out as a battle between the judiciary and the Trump administration’s dictatorially broad assertion of executive branch power. As TPM reported, the Trump administration orchestrated the removals to keep them out of view of the judicial system from the start. Boasberg cast the Trump administration’s behavior – from before the removals, during, and in subsequent legal arguments – as part of a wide-ranging effort to prevent the courts from having any say or oversight.

Boasberg reserved special ire for the DOJ’s argument that, having removed people from U.S. airspace, the courts were no longer in a position to review the deportees’ cases. It’s a stunning idea: the government could have free rein with whoever it wanted, so long as it managed to remove that person from the United States.

“Were that true, Executive Branch officials could do as they please with deportees abroad, regardless of statutory constraints that plainly apply — for example, by rerouting a plane to discharge deportees into a country where they would be tortured, even though federal law expressly forbids that outcome,” Boasberg wrote. At one point, the judge dismissed these assertions as “soundbite-ready” and “extravagant.”

Many details about what happened on March 15, when the government flew planeloads of deportees to an El Salvador detention center under the Alien Enemies Act, remain unclear. The numbers of deportees per plane, how they were chosen, the mix on the planes between those deported under standing removal orders and those sent under the Alien Enemies Act invocation – all of these basic questions remain at least partly shrouded in mystery. It complicates efforts to understand exactly what the Trump administration did last month.

The Trump administration blocked Boasberg’s efforts to uncover some of this information by making an extreme, rare invocation of the state secrets privilege, effectively declaring that the information – some of which it publicized on social media – is a sensitive national security matter. Boasberg said in the ruling that he was skeptical that the information “rises to the level of a state secret.”

The ruling sets up a new front in the Trump administration’s battle with the judiciary. For the past week, the government has drawn attention by stonewalling a separate court seeking information about the accidental removal of Kilmar Abrego Garcia, a Salvadoran man mistakenly removed the same day as the Alien Enemies Act detainees but apparently on a different flight under different legal authority. In that case, the Trump administration does not appear to have asked El Salvador to remove Abrego Garcia, even after the Supreme Court directed it to “facilitate” his removal from custody in the country.

Boasberg is now asking the administration to hold itself accountable. Per the order, it must either assert custody over the removed – reversing itself in a significant way – or give up the officials who directed the removal flights to continue for potential contempt prosecution. So far, the stakes are only rising.

Read Boasberg’s opinion here: