Contemptible

Today, James Boasberg, a federal judge in the District of Columbia, issued an order following a hearing he held in his courtroom almost two weeks ago. That case involved the two planeloads of people the Trump government spirited out of the country, Venezuelans who are allegedly members of the Tren de Aragua gang. We don’t know for sure whether they are. We know ICE has made mistakes because CECOT, the El Salvador prison where the deportees were sent, rejected some of those the United States sent, including women—it’s an all-male prison.

But that wasn’t the issue Judge Boasberg took up today. The Supreme Court has already ruled that the Trump administration can continue deportations for now as long as deportees are provided with due process, that is, notice of deportation and the opportunity to contest it before it happens. Today, the Judge ruled that there was probable cause to believe the government was in criminal contempt of court for disobeying the Judge’s order that it discontinue deporting people who had been denied due process on the day those flights took off.

The Supreme Court has already set aside the temporary restraining order (TRO) the government allegedly violated and cases refiled in other jurisdictions per that Court’s orders. But Judge Boasberg explained, as we’ve discussed here, that contempt is still appropriate: “One might nonetheless ask how this inquiry into compliance is able to proceed at all given that the Supreme Court vacated the TRO after the events in question. That Court’s later determination that the TRO suffered from a legal defect, however, does not excuse the Government’s violation. Instead, 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…. If a party chooses to disobey the order — rather than wait for it to be reversed through the judicial process — such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order.”

Judge Boasberg wrote that not only does this make sense but it also explains why a contempt finding is essential when a party disobeys a court order, even an order that is subsequently reversed on appeal. “The rule ‘reflects a belief that in the fair administration of justice no man can be judge in his own case,’ no matter how ‘exalted his station’ or ‘righteous his motives.’… The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it.”

And so, the Judge has embarked on this uncertain process that is certain to make him even more of a target than his initial ruling against the Trump administration did. That ruling set off a wave of calls for the impeachment of federal judges, including a semi-coherent one from Trump himself:

There are a lot of twists and turns ahead. The government is unlikely to agree to prosecute the contempt, but it is almost certain to delay announcing a decision for as long as possible (unless Trump demands it) in order to keep other proceedings from beginning. Judge Boasberg wrote that if the government declined to prosecute the contempt, he would use a process that permits the appointment of private prosecutors to move the matter forward. Anticipating that might be the case at the time he held the hearing, we discussed how this might work a couple of weeks ago. There is a specific federal rule of criminal procedure that permits the courts to do this.

In his order, Judge Boasberg suggested he would take the following steps next:

• Give the government the opportunity to cure the contempt.

• If it doesn’t, identify the individual(s) responsible for the “contumacious conduct by determining whose ‘specific act or omission’ caused the noncompliance. That process could include “hearings with live witness testimony under oath or to depositions conducted by Plaintiffs.”

• Give the government the opportunity to prosecute, but be prepared to appoint an outside attorney if necessary.

It’s an interesting question, who exactly the Judge would hold in contempt. It’s not clear who gave the order that kept the planes in the air after the Judge ordered they be turned around. If the government is smart, it will cure the contempt to avoid that inquiry. The Judge gave the administration the option of keeping the deportees in El Salvador but taking formal custody of them so they could seek relief in American courts. But Trump does not seem inclined to back down on these issues, and that could lead to some interesting fact finding to determine who issued the order to defy the Judge’s TRO and continue the deportations. Today, the government said they would again appeal the order to facilitate the return of Kilmar Abrego Garcia from CECOT. Trump seems determined to take these cases to the Supreme Court over and over again.

One final note: Even though the Supreme Court dismissed the Judge’s TRO and some of the plaintiffs have filed actions in jurisdictions where they are being held (which is not in Washington, D.C.) per the Court’s order, the plaintiffs filed a notice today that may resurrect at least some parts of the case. One area where they argue the court still has jurisdiction is over claims regarding “Habeas. Plaintiffs will amend their Complaint to reinstate their habeas claim to seek relief for the class of individuals who were removed to El Salvador under the [Alien Enemies Act] on March 15, as well as potentially a class of individuals held in U.S. criminal custody. A slightly longer schedule is proposed below for litigating the habeas action.”

Habeas corpus, as we’ve previously discussed, is a legal action challenging a defendant’s confinement. A bastardized translation of the Latin is, as federal judges like to say, “Bring me the body,” meaning they have the ability to order the release of someone who is wrongfully being held. The plaintiffs intend to amend their complaint so they can argue that for people who are not being held in CECOT in El Salvador, the District of Columbia is the proper place to file suit. This case may move forward, even as Judge Boasberg refers the contempt for prosecution.

These cases are about making sure that, American citizen or not, criminal or not, peoples’ right to have the day in court that the Constitution guarantees them is honored. That’s all. But it’s everything. It’s the rule of law—the rule of law that Donald Trump and the people in his administration took an oath to uphold and are now utterly rejecting. It’s contempt, and it’s contemptible.

We’re in this together,

Joyce