Federal Judge in Deportation Case Finds Probable Cause To Hold the Trump Administration in Contempt

U.S. District Judge James Boasberg says the evidence indicates that the government "willfully disobeyed" his order blocking removal of alleged Venezuelan gang members.

In an opinion issued on Wednesday, a federal judge found that the evidence "strongly support[s]" the conclusion that the Trump administration "willfully disobeyed" a March 15 order temporarily barring the removal of suspected Venezuelan gang members as "alien enemies." James Boasberg, chief judge of the U.S. District Court for the District of Columbia, says the government's actions "demonstrate a willful disregard" for that order, "sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt."

Boasberg's temporary restraining order (TRO) in J.G.G. v. Trump initially applied to five named plaintiffs threatened with immediate deportation under the Alien Enemies Act (AEA). Later that day, he expanded the TRO to cover anyone subject to removal under President Donald Trump's March 15 proclamation invoking the AEA against members of the Venezuealan gang Tren de Aragua. Although the Supreme Court subsequently vacated the TRO, Boasberg says, that does not affect his contempt inquiry because "it is a foundational legal precept that every judicial order 'must be obeyed'—no matter how 'erroneous' it 'may be'—until a court reverses it."

The Supreme Court concluded that the plaintiffs should have filed habeas corpus petitions in Texas, where they were detained, rather than seeking relief under the Administrative Procedure Act in the District of Columbia. But the Court's "later determination that the TRO suffered from a legal defect," Boasberg says, "does not excuse the Government's violation."

As Boasberg sees it, that violation reflects the government's determination to avoid judicial review. In early March, weeks before Trump issued his proclamation, the Department of Homeland Security (DHS) "interrogated Venezuelans in its custody about alleged membership in Tren de Aragua and transferred many of those it deemed gang members to El Valle Detention Facility, located outside Harlingen, Texas, not far from the Mexico border," Boasberg notes. The reason for those transfers became clear early in the morning on March 15, a Saturday, when DHS "reportedly loaded scores of Venezuelans onto buses, drove them to a nearby airport, and began putting them onto three planes."

This happened hours before Trump published his proclamation, which implausibly averred that Tren de Aragua qualifies as a "foreign nation or government" and that its criminal activities within the United States amount to an "invasion or predatory incursion." In Trump's view, that counterintutive interpretation of the AEA gave him broad discretion to peremptorily deport any suspected member of the gang.

"As the planes sat on the tarmac, officials refused to answer the deportees' questions about where they would be taken," Boasberg writes. The detainees on those planes included the five named plaintiffs in J.G.G. v. Trump, whose attorneys filed suit at 1:12 a.m., apparently after "catching wind of the impending Proclamation." They sought a TRO blocking their clients' removal, arguing that Trump was misconstruing key terms in the AEA and that the plaintiffs had been erroneously identified as Tren de Aragua members.

Around 8 a.m., Boasberg learned that he had been randomly assigned to the case. At 9:40 a.m., after the plaintiffs' lawyers told him at least one of their clients "was reportedly already aboard a removal flight," Boasberg issued a TRO in light of the "exigent circumstances" to "freeze in place the status quo until a hearing could be held." The government's lawyers confirmed that the TRO "ha[d] been disseminated to the relevant executive branch agencies." As a result, several of the named plaintiffs "were abruptly removed from planes," which Boasberg views as "evidence that Defendants were able, if they wished, to ensure that people on the ground knew relatively quickly of developments in the Court proceedings."

The government's respect for the legal process seems to have ended there. At 10:15 a.m., Boasberg informed counsel for both sides that he would hold an emergency hearing that day to consider whether the TRO should be extended to other detainees, which he scheduled for 5 p.m. Shortly after Trump's proclamation appeared on the White House website at 3:53 p.m., one of the plaintiffs' lawyers told Boasberg "he believed that two flights, both operated by a contractor used by Immigrations and Customs Enforcement for deportations, were scheduled to depart Harlingen that afternoon." The lawyer "expressed concern that the flights might imminently take off with his five clients and members of the potential class on board."

During the hearing, Boasberg asked the government's lawyer, Drew Ensign, "whether there were any "removals under this Proclamation planned…in the next 24 or 48 hours." Ensign said he did not know, but "we can certainly investigate that and report that back to you." Boasberg adjourned the hearing at 5:22 p.m. so Ensign could do that, saying he would reconvene at 6 p.m.

Meanwhile, the DHS was proceeding with the deportations. "During the short window that the Court was adjourned," Boasberg notes, "two removal flights took off from Harlingen—one around 5:25 p.m. and the other at about 5:45 p.m." But "those later-discovered flight movements…were obscured from the Court when the hearing resumed shortly after 6:00 p.m. because the Government surprisingly represented that it still had no flight details to share." When pressed, Ensign "stated that the 'operational details' he had learned during the recess 'raised potential national security issues,' so they could not be shared while the public and press listened to the hearing through a call-in line." Yet even after the court "disconnected the public line so that only counsel for the parties were present," Ensign said "he had no information to share at that time."

After gradually realizing that the government "might be rapidly dispatching removal flights in an apparent effort to evade judicial review while also refusing to provide any
helpful information," Boasberg considered the arguments for and against issuing a broader TRO. He ultimately "ordered that for 14 days the Government was enjoined from conducting the 'removal' of any noncitizens in its custody solely on the basis of the Proclamation." Around 6:45 p.m., he explained what that meant.

"You shall inform your clients of this immediately," Boasberg told Ensign. "Any
plane containing these folks that is going to take off or is in the air needs to be returned to the United States….Those people need to be returned to the United States. However that's accomplished, whether turning around a plane or not [dis]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." Half an hour after the hearing, Boasberg entered a written version of his order that he said reflected his oral instructions.

"Despite the Court's written Order and the oral command spelling out what was required for compliance, the Government did not stop the ongoing removal process," Boasberg writes. "According to Defendants, the two planes that took off during the adjournment departed U.S. airspace before the Court's 6:45 p.m. oral command and 'landed abroad' sometime after the Court posted the Minute Order at 7:25 p.m." Those planes, which carried "members of the Plaintiff class covered by the TRO," "apparently touched down in Honduras at 7:37 p.m. and 8:10 p.m., and remained there for several hours before taking off again for El Salvador. After the planes landed in El Salvador shortly after midnight on Sunday, most of the passengers were apparently transferred into one of that country's prisons, known as the Center for Terrorism Confinement (CECOT)."

Boasberg here is relying on a timeline compiled by The Washington Post because the government has persistently refused to answer his questions about those flights, saying they implicated sensitive diplomatic and national security concerns. He thinks that excuse is implausible, especially since the president himself "had retweeted a three-minute video that portrayed a host of operational details" about the flights.

By "mid-Sunday morning," in any event, "the picture of what had happened the previous night came into clearer focus. It appeared that the Government had transferred members of the Plaintiff class into El Salvador's custody hours after this Court's injunction prohibited their deportation under the Proclamation. Worse, boasts by Defendants intimated that they had defied the Court's Order deliberately and gleefully." Secretary of State Marco Rubio, for example, shared "a post in which, above a news headline noting this Court's Order to return the flights to the United States, the President of El Salvador wrote: 'Oopsie…Too late,'" followed by a laughing emoji.

Boasberg's broadened TRO was indeed "too late," the Trump administration argued, because the planes had left U.S. airspace before he issued the oral or written versions. Boasberg prohibited "removing" the detainees, the government's lawyers said, and that had already happened. But Boasberg rejects that understanding of removal, noting that it is inconsistent with the context of his order and his explicit instruction that detainees must be "returned to the United States," which might mean "turning around a plane" or refraining from dropping them off at the final destination.

It should have been clear to the government, Boasberg says, that "removing" the detainess meant transferring them to foreign custody, not merely transporting them beyond U.S. borders. If there was any doubt of that, he adds, the government could have sought clarification, which it never did.

Boasberg concludes that his order was "sufficiently clear, reasonably specific, and unequivocal." He also thinks the evidence indicates that the government willfully violated that order.

"From the opening hours of Saturday, the Government's conduct betrayed a desire to
outrun the equitable reach of the Judiciary," Boasberg writes. "Hustling class members to an airport before the Proclamation had even been published and in the face of a suit that sought a TRO was bad enough. The decision to launch planes during the afternoon hearing was even worse. The Government knew as of that morning that the Court would hold a hearing on whether anyone in its custody could, consistent with the law, be removed pursuant to the Act—and yet it nonetheless rushed to load people onto
planes and get them airborne. Such conduct suggests an attempt to evade an injunction and deny those aboard the planes the chance to avail themselves of the judicial review that the Government itself later told the Supreme Court is 'obviously' available to them."

What happens next? Boasberg suggests that the government can "purge its contempt" by "voluntarily obeying the court order," which would avoid the need for criminal sanctions. "The most obvious way for Defendants to do so here is by asserting custody of the individuals who were removed in violation of the Court's classwide TRO so that they might avail themselves of their right to challenge their removability through a habeas proceeding"—a right that the Supreme Court affirmed even as it vacated Boasberg's TRO.

Under the terms of the TRO, "the Government would not need to release any of those individuals, nor would it need to transport them back to the homeland," Boasberg writes. "The Court will also give Defendants an opportunity to propose other methods of coming into compliance, which the Court will evaluate."

Otherwise, Boasberg says, he will "proceed to identify the individual(s) responsible for the contumacious conduct by determining whose 'specific act or omission' caused the noncompliance." That inquiry would begin with "declarations," which might be supplemented by "hearings with live witness testimony under oath" or "depositions conducted by Plaintiffs." The next step "would be for the Court, pursuant to the Federal Rules of Criminal Procedure, to 'request that the contempt be prosecuted by an attorney for the government.'" If the government "'declines' or 'the interest of justice requires,' the Court will 'appoint another attorney to prosecute the contempt.'"

Since it is hard to imagine the Trump administration cooperating with any of this, the case could provide an illuminating test of what happens when the executive branch openly defies a court order. Those of us who still think the rule of law matters may not like the results.