Appeals Court Appears Ready To Let Judge Investigate Trump Officials Who Defied His Order

WASHINGTON – A majority of judges on the D.C. Circuit Court of Appeals appeared ready to allow one federal judge to conduct a criminal contempt investigation into whether the Trump administration defied his orders last year when deporting over 100 men to the CECOT supermax prison in El Salvador.

Lawyers for the government have alleged that Chief U.S. District Judge James Boasberg, an Obama appointee, engaged in a “clear abuse of discretion” by pursuing a criminal contempt inquiry earlier this year after administration officials did not follow his March 2025 order to halt the active deportations or return any deportees who had already been removed. A panel of the appellate court previously ruled in a 2-1 split in April to halt the inquiry, siding with the government, and the full 11-member court is now rehearing the case.

Justice Department attorney Brett Shumate insisted during arguments on Tuesday that a criminal contempt investigator’s role belongs solely to prosecutors, not judges. He said it was not the court’s responsibility to probe the “mental state” of administration officials, especially after the Justice Department already complied in part with requests for declarations about who was involved in the decision-making over the removals.

Judge Michele Childs, an Obama appointee, reminded Shumate Tuesday, however: “The district court was halted in its fact-finding and there was no referral for prosecution.”

Childs, the lone member of the April panel who ruled to allow the inquiry, had previously pointed out in her opinion that Boasberg had only asked for relevant facts, such as who was on certain calls relevant to the flights, who listened in on court hearings about them, or who was privy to other decisions at the department as the removals occurred. That information would help him make a referral to a prosecutor about who they might pursue criminal contempt charges against, not take over the case.

Boasberg was not probing the mental state of then-Homeland Security Secretary Kristi Noem, nor asking for insight about any legal advice she might have received, Childs added.

The legal battle centers on the actions taken by administration officials after Trump invoked the Alien Enemies Act, an 18th-century wartime law that authorizes the removal of non-citizens from the U.S. if they are part of an ongoing incursion or “invasion.” Trump had invoked the act in the wee hours of March 14, 2025, though the invocation wasn’t made public until March 15.

It was in that window, before the world knew what Trump had done, according to the American Civil Liberties Union, that the administration prepared to quietly round up over 100 Venezuelan migrants and asylum seekers and board them onto planes headed to El Salvador and Honduras. The government labeled the men terrorists and gang members, ultimately relying on scant, highly generalized or dubious evidence to remove them, but provided no individual habeas hearings. Lawyers for Democracy Forward and the ACLU quickly sued on behalf of some of the deported men, seeking to have their deportations blocked.

During a March 15 hearing, when Boasberg pressed the government for answers about the location of the men and asked whether they were already in the process of being removed, Deputy Assistant Attorney General for the Office of Immigration Litigation of the Civil Division Drew Ensign insisted he did not know where they were or whether flights had taken off, and was unable to provide names of those making decisions regarding the deportations.

Boasberg issued an order to stop any further deportations under AEA while he awaited answers, and ordered any flights already in the air to be turned around. Nevertheless, the deported men were delivered to El Salvador, where they were incarcerated at CECOT. Within 24 hours, El Salvador’s president Nayib Bukele mocked Boasberg’s ruling online while sharing videos of prisoners being processed at CECOT.

“Oopsie… too late,” Bukele wrote on X.

Justice Department lawyers appeared in court the next day, defiant. When Boasberg pressed them about the flights, including the exact times the men were loaded up for removal, Ensign told Boasberg his order wasn’t enforceable because verbal orders were “not independently enforceable as injunctions” and, in any event, the planes were already out of U.S. airspace when the judge ordered that they be turned around.

The court’s request for information and testimony from two U.S. attorneys, including Ensign and fired DOJ lawyer Erez Reuveni, was out of line, Shumate argued in court Tuesday.

(Reuveni had claimed in a whistleblower report that Emil Bove, then the principal associate deputy attorney general, had suggested just days before Boasberg’s ruling that the department tell the courts “fuck you” if they ruled against Trump’s use of the Alien Enemies Act to deport people.)

Childs also said Shumate seemed to think the court should take the government at its word that contempt didn’t occur and that a single statement from one official saying so would be enough.

“That’s not fair,” Childs said. “That’s also unfair to the alleged [person] who might be a sacrificial lamb, the person all of you have picked who you want to go forward knowing later you might exert state privileges or some executive privilege and not let the contempt case go forward.”

“We took the district court at his word that there was a violation of the order… we provided the information [about who was involved] and somehow, that’s no longer good enough,” Shumate said.

Judge Patricia Millett, also an Obama appointee, seemed to agree with Childs and noted that the scant declarations the court received indicated that Noem was taking legal advice “from a number of people in the Justice Department,” she said.

“Now if an attorney providing legal advice to her were to tell the secretary, ‘You have the legal authority to expletive-eff word the court order and go ahead and disembark people,’ might it be accurate to say that that attorney would just as well be in contempt of court?” Millett said.

“That may be an interesting question for prosecutors,” Shumate said.

ACLU attorney Lee Gelernt, arguing against the government, told the full appellate court that what Boasberg wanted was “crystal clear” from the beginning: He had told the government twice to turn the planes around and not disembark the men aboard and he wanted to know who heard his orders at DHS or DOJ and continued to ignore them.

Even the Supreme Court, Gelernt said Tuesday, “put its foot down” and acknowledged that while Trump has the power to initiate deportations, due process must also be followed.

“We think testimony [from administration officials] is only right after so much stonewalling,” Gelernt said.

Even if the appellate court doesn’t think Boasberg has the right to take testimony, Gelernt said the full appellate court should let the probe resume with parameters. The courts could even appoint a “special master” to ensure independence from the Justice Department, he said.

Gelernt told HuffPost after arguments on Friday that he knows the stakes are “very high.”

“The judges were extremely prepared and asked tough questions of both sides,” he said. “If the executive branch is allowed to defy court orders, then the rule of law is in trouble.”