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A federal judge ruled on Wednesday that there was probable cause to hold Trump officials in criminal contempt for violating his temporary injunction that barred the use of the Alien Enemies Act wartime power to deport alleged Venezuelan gang members.
In a scathing 46-page opinion, James Boasberg, the chief US district judge for Washington, wrote that senior Trump officials could either return the people who were supposed to have been protected by his injunction, or face contempt proceedings.
The judge also warned that if the administration tried to stonewall his contempt proceedings or instructed the justice department to decline to file contempt charges against the most responsible officials, he would appoint an independent prosecutor himself.
“The court does not reach such conclusions lightly or hastily,” Boasberg wrote. “Indeed, it has given defendants ample opportunity to explain their actions. None of their responses have been satisfactory.”
The threat of contempt proceedings marked a major escalation in the showdown over Donald Trump’s use of the Alien Enemies Act of 1798 to deport alleged Venezuelan gang members, without normal due process, in his expansive interpretation of his executive power.
It came one day after another federal judge, in a separate case involving the wrongful deportation of a man to El Salvador, said she would force the administration to detail what steps it had taken to comply with a US supreme court order compelling his return.
In that case, US district judge Paula Xinis ordered the administration to answer questions in depositions and in writing about whether it had actually sought to “facilitate” the return of Kilmar Ábrego García, who was protected from being sent to El Salvador.
Taken together, the decisions represented a developing effort by the federal judiciary to hold the White House accountable for its apparent willingness to flout adverse court orders and test the limits of the legal system.
At issue in the case overseen by Boasberg is the Trump administration’s apparent violation of his temporary restraining order last month blocking deportations under the Alien Enemies Act – and crucially to recall planes that had already departed.
The administration never recalled the planes and argued, after the fact, that they did not follow Boasberg’s order to recall the planes because he gave that instruction verbally and it was not included in his later written order.
In subsequent hearings, lawyers for the Trump administration also suggested that even if Boasberg had included the directive in his written order, by the time he had granted the temporary restraining order, the deportation flights were outside US airspace and therefore beyond the judge’s jurisdiction.
Boasberg excoriated that excuse and others in his opinion, writing that under the so-called collateral-bar rule, if a party is charged with acting in contempt for disobeying a court order, it cannot raise the possible legal invalidity of the order as a defense.
“If Defendants believed – correctly or not – that the Order encroached upon the President’s Article II powers, they had two options: they could seek judicial review of the injunction but not disobey it, or they could disobey it but forfeit any right to raise their legal argument as a defense,” Boasberg wrote.
Boasberg also rejected the administration’s claim that his authority over the planes disappeared the moment they left US airspace, finding that federal courts regularly restrain executive branch conduct abroad, even when it touches on national security matters.
“That courts can enjoin US officials’ overseas conduct simply reflects the fact that an injunction … binds the enjoined parties wherever they might be; the ‘situs of the [violation], whether within or without the United States, is of no importance,’” Boasberg wrote.
Boasberg added he was unpersuaded by the Trump administration’s efforts to stonewall his attempts to date to establish whether it knew it had deliberately flouted his injunction, including by invoking the state secrets doctrine to withhold basic information about when and what times the planes departed.
“The Court is skeptical that such information rises to the level of a state secret. As noted, the Government has widely publicized details of the flights through social media and official announcements thereby revealing snippets of the information the Court seeks,” Boasberg wrote.
