The Volokh Conspiracy
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Does Judge Boasberg Still Have Jurisdiction To Pursue Criminal Contempt Proceedings?
Judge Katsas says no, Judge Rao leaves open the possibility.
Back in April, Judge Boasberg all but announced that he would appoint a special counsel to bring criminal contempt proceedings against Trump Administration officials. I wrote about those orders here, here, and here. A divided D.C. Circuit panel granted a stay (Katsas and Rao), with Judge Pillard in dissent. Today, the panel issued a divided opinion. Judges Katsas and Rao granted the government's mandamus petition, while Judge Pillard would have denied it. Judges Katsas and Rao agree on the bottom line, but they disagree on the reasoning. One particular point of disagreement has some significance for future proceedings.
Judge Katsas found that Judge Boasberg lacks jurisdiction to initiate any further proceedings, since the Supreme Court found that this case belongs in Texas, not D.C.
The impact of jurisdictional defects in subsequent criminal-contempt proceedings is unclear. Many cases hold that a court may not impose criminal contempt for violation of an order that it lacked jurisdiction to enter. The Supreme Court explained: "When … a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void." Ex parte Fisk, 113 U.S. 713, 718 (1885); see, e.g., Ex parte Burrus, 136 U.S. 586, 597 (1890); In re Sawyer, 124 U.S. 200, 221–22 (1888); Ex parte Ayers, 123 U.S. 443, 485 (1887); Ex parte Rowland, 104 U.S. 604, 612–13 (1881). Two subsequent cases arguably weakened this rule, though neither purported to overrule these precedents. United States v. United Mine Workers of Am., 330 U.S. 258, 289–95 (1947); United States v. USCA Case #25-5124 Document #2129262 Filed: 08/08/2025 Page 36 of 110 Shipp, 203 U.S. 563, 573–75 (1906). Accordingly, as late as 1991, several circuits still recognized the traditional rule. See, e.g., In re Novak, 932 F.2d 1397, 1401 (11th Cir. 1991); In re Establishment Inspection of Hern Iron Works, Inc., 881 F.2d 722, 726–27 (9th Cir. 1989). In rejecting this view, the district court rested primarily on Willy v. Coastal Corporation, 503 U.S. 131 (1992), which held that courts may impose Rule 11 sanctions even in cases where they lack subject-matter jurisdiction. See id. at 137–39; Mem. Op. at 19–20. But in Willy, the Supreme Court reasoned that sanctions are collateral to the merits, so judges may require "those practicing before the courts to conduct themselves in compliance with the applicable procedural rules" while a case remains pending. 503 U.S. at 139. This rationale has no obvious application to injunctions restricting the primary conduct of parties outside of court, as opposed to the secondary conduct of parties in litigation. Indeed, the matter at issue in Willy—a monetary sanction of counsel's "careless pleading," id. at 133—is leagues apart from an injunction restricting the Executive Branch from carrying out a significant, cross-border, national-security operation.
As I read Katsas, the matter would end here, and Judge Boasberg can do no more with this case. That was my take back in April.
But based on my quick read, I'm not sure that Judge Rao agrees with that position. She finds that Judge Boasberg erred by using the threat of criminal contempt to obtain compliance with the initial TRO. The so-called "purge" option was an impermissible blending of civil and criminal contempt.
The purpose and effect of this preliminary order is to compel the government to exercise its foreign affairs powers to assert custody of the removed gang members. Id. at *20. The district court acknowledged that it can no longer coerce this action through civil contempt because its order was vacated by the Supreme Court. See id. at *8 (invoking the collateral-bar rule, which is available only in criminal contempt). Lacking the power to coerce the government, the district court nonetheless sought to achieve the same result with the threat of criminal contempt. Dangling this sword of Damocles to compel the Executive to exercise its foreign affairs powers exceeds the court's authority and is an abuse of discretion.
But Judge Rao did not rule out criminal contempt, in the abstract. Rao wrote:
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.
A lot hangs on the word "might" (emphasis in the original).
Judge Pillard, in dissent, read Rao's opinion as saying the proceedings can continue. She wrote:
If we accept that the district court has jurisdiction to consider criminal contempt as a standalone matter, which Judge Rao does not appear to question, the inclusion of a "purge" option that defendants are entirely free to pretermit makes the order, if anything, less onerous.
If I'm reading the opinions correctly, Judge Boasberg on remand would have jurisdiction to proceed with some form of criminal contempt, minus the "purge" option that Judge Rao objected to.
Finally, Judge Katsas raised the Donziger problem.
Then the district court "will" appoint a private attorney to prosecute the Executive Branch, Mem. Op. at 44, which presents its own difficulties. The Supreme Court has held that courts "possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt." Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987). But that holding is hard to reconcile with that Court's more recent insistence that "[t]he Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States." United States v. Texas, 599 U.S. 670, 678–79 (2023); see also Donziger v. United States, 143 S. Ct. 868, 868–70 (2023) (Gorsuch, J., dissenting from denial of certiorari). In any event, Young itself acknowledged that the prosecutor must be "disinterested," and decisions regarding the prosecution must therefore be "all made outside the supervision of the court." 481 U.S. at 807. But then who would supervise such a prosecutor? If nobody did, the prosecutor would be an unconstitutionally appointed principal officer. See United States v. Arthrex, Inc., 594 U.S. 1, 18–19 (2021); United States v. Donziger, 38 F.4th 290, 296 (2d Cir. 2022). And if court-appointed prosecutors must be subject to supervision by the Attorney General, as the Second Circuit held in Donziger, see 38 F.4th at 299–300, then the private-prosecutor route will be as futile as it is provocative. Finally, the district court
Allowing Judge Boasberg to appoint a special counsel that is not supervised by anyone, and could not be removed, would be like a chimera between Alexia Morrison, Jack Smith, and Chief Judge Kimberly Moore--an unchecked prosecutor with absolute power, accountable to no one, assigned to take down a coordinate branch of government. What can go wrong?
