Administration lawyers asked a federal appeals court to end a lower court’s contempt proceedings against the government, saying District Judge James Boasberg’s relentless meddling in last month’s deportations to El Salvador has caused a “needless constitutional confrontation.”
Drew Ensign, a Justice Department lawyer, said Judge Boasberg is defying the president’s foreign policy powers in ordering the government to bring back hundreds of Venezuelan gang suspects or else face criminal prosecution.
Mr. Ensign also said it should be impossible to find contempt in this case when Judge Boasberg’s original order was so unclear that all sides are still arguing more than a month later over what it meant.
“The district court’s criminal contempt order invites needless constitutional confrontation,” Mr. Ensign argued in a brief Friday to the Circuit Court of Appeals for the District of Columbia.
Judge Boasberg was overseeing the first case to arise out of President Trump’s use last month of the Alien Enemies Act to deport suspected Tren de Aragua gang members to El Salvador, where the U.S. is paying to hold them.
Judge Boasberg ordered the planes carrying the migrants to turn around and any that hadn’t taken off to be grounded.
The U.S. already had two flights in the air and out of U.S. airspace and continued those. It also let a third flight take off — though officials insist those people were deported under regular immigration law and not the 1798 Alien Enemies Act at issue in the lawsuit.
Mr. Ensign said it wasn’t clear at the time whether the judge’s instructions applied to physical removal from U.S. territory or to “legal removal” from U.S. custody altogether.
“Criminal contempt proceedings cannot be predicated on an order so unclear that, weeks later, parties and the court are parsing a hearing transcript to divine its true meaning — and where the executive branch, which is constitutionally charged with the prosecutorial power, believes that no crime was committed at all,” Mr. Ensign said.
The Supreme Court has since stripped Judge Boasberg of jurisdiction in the case, but he is still pursuing it, arguing he needs to get to the bottom of what happened while he was in control.
He said he has found “probable cause” to find someone in the government in contempt.
He has asked the government to suggest ways to “purge” the contempt. The option he offered was to give the deportees a forum to argue for undoing their deportations, but he said he was open to other government ideas.
Barring that, he said he will press charges, and if the Justice Department refuses to prosecute, he will name a special prosecutor to take the case.
The appeals court in D.C. has put Judge Boasberg’s case on hold while it considers the government’s appeal.
The American Civil Liberties Union, which is handling the case for the Venezuelans who sued to block their deportations, has urged the appeals court to sit this one out for now, arguing there is not yet an actual contempt proceeding.
