Donald Trump’s administration could be held in criminal contempt after ignoring a federal judge’s court orders to turn planes around carrying alleged Venezuelan gang members summarily deported to a brutal Salvadoran prison under the president’s use of a wartime law.
In a ruling on Wednesday, Judge James Boasberg said the government’s failure to return those flights to the United States demonstrates “a willful disregard” that is “sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt.”
“The Court does not reach such conclusion lightly or hastily; indeed, it has given Defendants ample opportunity to rectify or explain their actions,” he wrote in a lengthy opinion on Wednesday torching the administration’s refusals. “None of their responses has been satisfactory.”
Flights were in the air on March 15 when Boasberg ordered the administration to turn the planes around following a lawsuit from the American Civil Liberties Union that challenged their clients’ removal. The judge has repeatedly pressed officials to explain when government lawyers relayed his verbal and written orders to administration officials and who, if anyone, gave the flights a green light despite his orders.
“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 wrote Wednesday.
Administration officials must return those immigrants by April 23 to remove the contempt charges.
If they don’t, they must submit a filing to the court that identifies who ultimately made the decision to ignore the the judge’s orders.
And if those measures are “unsatisfactory,” administration officials will be hauled to court to testify or be deposed by plaintiffs, the judge wrote. If the administration declines, Boasberg will appoint a special prosecutor to “prosecute the contempt.”
The judge accused the administration of “increasing obstructionism” and “stonewalling” to avoid answering any questions about the flights, or who knew about the orders and when, after a series of hearings to understand why those planes arrived in El Salvador.
“Defendants provide no convincing reason to avoid the conclusion that appears obvious from the above factual recitation: that they deliberately flouted this Court’s written Order and, separately, its oral command that explicitly delineated what compliance entailed,” he wrote.
“Defendants’ conduct, moreover, manifests a willful disregard of the Court’s legally binding proscriptions,” he added. “Given the evidence at this early stage in the inquiry, and offered no persuasive reason to conclude otherwise, the Court finds that there is probable cause that Defendants acted contemptuously.”
The administration’s refusal to answer question about the flights and the judge’s move to hold officials in contempt escalates what has become a volatile conflict between the president and the judiciary in yet another case that legal experts say has pushed the country towards a constitutional crisis.
Boasberg’s decision “affirms what we have long known: the government’s conduct in this case is unlawful and a threat to people and our constitution,” Skye Perryman, president of Democracy Forward, a co-counsel in the case, said in a statement. “We will continue to work through the judicial process in defense of our clients and all people in America who are entitled to due process under our laws.”
In his proclamation invoking the Alien Enemies Act for only the fourth time in U.S. history, Trump stated that “all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua], are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
But the administration has admitted in court filings that “many” of the people sent to a notorious prison in El Salvador did not have criminal records, and attorneys and family members say their clients and relatives — some of whom were in the country with legal permission and have upcoming court hearings on their asylum claims — have nothing to do with Tren de Aragua.
On April 7, a divided Supreme Court agreed to lift Judge Boasberg’s order that temporarily blocked the president’s use of the wartime law to swiftly deport people from the country while a legal challenge plays out.
But justices said immigrants marked for removal are “entitled to notice and an opportunity to challenge their removal” in front of a judge, just not in Boasberg’s courtroom in Washington, D.C.
Following that ruling, lawsuits challenging immigrants’ deportations under the Alien Enemies Act have been filed in states where they are being detained. Several judges have since blocked the administration from summarily deporting them without a hearing.
“The Supreme Court already rebuked him. Lawless,” Homeland Secretary assistant secretary Tricia McLaughlin told The Independent in a text message.
Administration officials have also invoked a “state secrets” privilege — typically reserved to shield evidence that compromises national security — to avoid answering the judge’s questions.
“The Court is exceedingly doubtful that the privilege applies here,” Boasberg wrote Wednesday.
He is “simply seeking to confirm times and numbers: how many passengers the two flights carried, whether they were all deported pursuant to the Proclamation, and when they were transferred out of U.S. custody,” he wrote.
Andrew Feinberg contributed reporting from Washington, D.C.
