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Divided D.C. Circuit Panel Nixes Judge Boasberg's Criminal Contempt Order Against Trump Administration
Judge Katsas and Judge Rao disagreed on the reasons, but both agreed that Judge Boasberg overstepped; Judge Pillard dissented.
Today, in J.G.G. v. Trump, a divided panel of the U.S. Court of Appeals vacated Judge Boasberg's order finding probable cause that Administration officials were in criminal contempt of court for failing to prevent government officials from transferring alien detainees from U.S. custody. Judge Katsas and Judge Rao agreed that the government's petition for a writ of mandamus to vacate the order was justified, albeit on separate grounds. Judge Pillard dissented. All told, the opinions span over 100 pages.
After the jump are excerpts and summaries of the relevant opinions.
Here is how Judge Katsas sees the issues:
This case involves an extraordinary, ongoing confrontation between the Executive and Judicial Branches. On March 15, 2025, the Executive sought to implement a presidential proclamation mandating the swift, wholesale removal of adult members of the Venezuelan criminal gang Tren de Aragua (TdA)—a designated foreign terrorist organization. This operation required precise coordination among at least three different sovereign nations, as planes carrying more than 100 alleged TdA members flew from Texas to Honduras to El Salvador. The operation also involved a transfer of physical custody over these detainees from the United States to El Salvador, accomplished at a Salvadoran airport with Salvadoran security forces assembled en masse. But while this operation was ongoing, five alleged TdA members sued in Washington, D.C. to prevent the removals, and the district court urgently attempted—within a matter of hours—to preliminarily assess their lawfulness. After flights carrying some of the alleged TdA members had exited United States airspace, the court, through a minute order, temporarily restrained the removals. According to the Executive Branch, the removals had already occurred before the TRO was entered. According to the district court, the Executive carried out the removals in defiance of the TRO.
In response to these events, the district court initiated a criminal-contempt proceeding. The court found probable cause that some federal officials willfully violated the TRO, and it ordered the government to identify who. The court offered to stand down if the Executive Branch chose to purge the putative contempt by asserting custody over the removed individuals—Venezuelan nationals then being detained by the Salvadoran government in El Salvador. If necessary, the court promised to appoint a private attorney to prosecute the responsible Executive Branch officials. And it did all this to vindicate a TRO that the Supreme Court had vacated for lack of jurisdiction. The district court's order raises troubling questions about judicial control over core executive functions like the conduct of foreign policy and the prosecution of criminal offenses. And it implicates an unsettled issue whether the judiciary may impose criminal contempt for violating injunctions entered without jurisdiction.
At the end of this dispute lies a much simpler question. By its terms, the TRO prohibited the government from "removing" suspected TdA members. This prohibition could be interpreted in either of two ways. It might have barred the government simply from expelling detainees from United States territory. Or, it might have barred the government from surrendering custody of the detainees to a foreign sovereign. All agree that the government did not violate the TRO under the former view, so the contempt question boils down to a straightforward interpretive dispute over what constituted "removing" within the meaning of the TRO. For purposes of criminal contempt, ambiguities in the underlying injunction must be resolved in favor of the alleged contemnor. At the time of the alleged contempt, just hours after the TRO hearing and before any transcript of it was available, the district court's minute order could reasonably have been read either way. Thus, the TRO cannot support a criminal-contempt conviction here.
The government has sought review of the probable-cause order by way of appeal and mandamus. There is no basis for interlocutory appellate jurisdiction. Nonetheless, mandamus is appropriate because the government is plainly correct about the merits of the criminal contempt, and our saying so now would prevent long disputes between the Executive and the Judiciary over difficult, contentious issues regarding the courts' power to control foreign policy or prosecutions, or to impose criminal sanctions for violating injunctions entered without jurisdiction. In circumstances much less fraught than these, courts have reviewed interlocutory orders through mandamus to prevent extended inter-branch conflict.
For these reasons, I concur in the order granting the petition for mandamus and vacating the probable cause order.
Here is how Judge Rao sees the issues:
This case arises in the midst of a high stakes clash between the Executive Branch and a district court. In March, the President issued a proclamation ordering the removal of members of the Venezuelan criminal gang Tren de Aragua, a designated foreign terrorist organization, pursuant to the Alien Enemies Act. The following day, the government removed dozens of alleged gang members from the United States and transferred them to the custody of El Salvador. But while the removal was in process and after two planes carrying the detainees had already left the United States, the district court entered a temporary restraining order (TRO) barring the detainees' removal. The Supreme Court subsequently vacated the TRO, holding the district court lacked authority to issue it.
Despite the Supreme Court's decision, the district court sought to remedy what it perceived as the Executive's noncompliance with the vacated TRO. Relying on its criminal contempt authority, the court issued an order finding probable cause that government officials willfully violated the TRO by not turning the planes around. The order offered the government a choice: either (1) come into compliance with the vacated TRO, such as by asserting custody over the individuals detained in El Salvador, or (2) identify the officials responsible for the removals so the district court could initiate prosecutions for criminal contempt.
The district court's order is a "clear abuse of discretion" that warrants the "drastic and extraordinary remedy" of mandamus. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (cleaned up). When an injunction has been vacated, as occurred here, a district court loses the authority to coerce compliance with the order. See Dep't of Homeland Sec. v. D.V.D., No. 24A1153, 2025 WL 1832186, at *1 (U.S. July 3, 2025) (holding that a district court cannot use a remedial order "to enforce an injunction that our stay rendered unenforceable"). Punishment through criminal contempt might still be available in these circumstances, but the district court cannot use the threat of such punishment as a backdoor to obtain compliance with a vacated and therefore unenforceable TRO.
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." In re Att'y Gen. of U.S., 596 F.2d 58, 64 (2d Cir. 1979). Lacking the authority to compel obedience, the district court nonetheless pressured the government to take custody of alleged alien enemies held in El Salvador. This intrusion on the President's foreign affairs authority "constitute[s] an unwarranted impairment of another branch in the performance of its constitutional duties." Cheney, 542 U.S. at 390. Because the order exceeds the court's authority and amounts to a clear abuse of discretion, mandamus is appropriate.
And:
The district court used the threat of criminal contempt to coerce the Executive Branch to comply with an order it had no authority to enforce. And it directed that coercion toward the Executive's exercise of its foreign affairs power. The significance of the district court's error, coupled with the potential for abuse in future cases, justifies our intervention at this stage of the proceedings. Considering the "totality of the circumstances," the writ is appropriate. In re Kellogg Brown & Root, 756 F.3d at 762.
For the foregoing reasons, I concur in the decision to grant the government's petition for a writ of mandamus and to vacate the district court's order.
Judge Pillard dissented, and here is how she explained that decision.
The rule of law depends on obedience to judicial orders. Yet, shortly after the district court granted plaintiffs' emergency motion for a temporary restraining order, defendants appear to have disobeyed it. 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.
When it appears that a judicial order has been disobeyed, the court's ability to learn who was responsible is the first step to accountability. In defense of the integrity of our courts, the district judge promptly issued an opinion describing in detail the facts giving rise to probable cause to believe that contempt of court had occurred. The accompanying order required only that defendants identify the people responsible for the apparently contumacious conduct.
Defendants assert no claim of privilege to withhold the identities of the decisionmakers aware of the TRO who decided not to halt the flights carrying detainees to prison in El Salvador. They affirm that executive branch officials can be subject to sanction for criminal contempt. Reply in Supp. of Stay 5-6. And they squarely deny any suggestion "that [the executive branch] would never prosecute an official for criminal contempt." Id.
Yet my colleagues, each for a distinct and non-overlapping reason, vote to grant a writ of mandamus to vacate the district court's Order. Judge Katsas would go further and "terminate the criminal-contempt proceeding." Katsas Op. 35.
They intervene in error. We all agree we lack appellate jurisdiction. It should be even more apparent that defendants have no clear and indisputable right to the extraordinary writ of mandamus. Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 381 (2004). The right to relief is only "clear and indisputable" when a petitioner "can point to cases in which a federal court has held that relief is warranted in a matter involving like issues and comparable circumstances." In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (citation and internal quotation marks omitted). Neither defendants nor my colleagues cite to any such cases. Moreover, I am unaware of any prior case in which a court has asserted the clarity on which mandamus relief depends without a majority agreeing as to what is so clear. Because the district court's order is not remotely one from which defendants have an indisputable right to relief, I would deny mandamus and dismiss the appeal.
