Judge Boasberg Bites Back

The crisis is here.

Yesterday the Trump administration’s strategy of defying trial judges and hoping their pals at the Supreme Court would bail them out ran smack into a brick wall. Judge James Boasberg ruled that attorneys from the Justice Department likely committed criminal contempt of court in the case involving Venezuelans deported under the Alien Enemies Act (AEA). He accused the government lawyers of “willful disobedience of judicial orders” and vowed to appoint outside counsel to prosecute that contempt if the government does not purge it.

It’s a massive escalation in the war between Trump and the judiciary. It also highlights the futility of the Supreme Court’s plan to head off a collision between the executive branch and the courts by throwing trial judges under the bus.

Due Process? LOL

Judge Boasberg’s order lays out the Justice Department’s “apparent effort to evade judicial review” in stark detail.

Weeks before President Trump proclaimed Venezuelan migrants to be an invading army and thus deportable under the AEA without process, the Department of Homeland Security began transferring them to the El Valle Detention Facility in the border town of Harlingen, Texas. By the time the White House released the official declaration at 3:53pm on March 15, the Department of Homeland Security had already filled up two planes with prisoners headed for El Salvador’s Center for Terrorism Confinement (“CECOT”), one of the most notoriously violent prisons in the world.

Earlier that morning, the ACLU raced into court and secured a TRO on behalf of five named plaintiffs, who were then pulled off the planes, making clear that the government had the power to respond quickly to the court’s instructions. But during a hearing that afternoon, counsel for the government purported to be both ignorant of DHS’s plans and unable to convey the court’s order to the relevant officials. And so, even after the judge certified all AEA deportees as a class and ordered the government not to turn them over to the Salvadoran government, the Trump administration did exactly that, casting hundreds of men into a gulag outside the jurisdiction of American courts.

A week later, the Supreme Court vacated Judge Boasberg’s TRO, holding that the detainees should have filed writs of habeas corpus in the venue where they were being held (i.e. New York and Texas). The justices did not explain how these deportees were supposed to accomplish that while shackled and strapped inside an aircraft with no idea where they were headed.

But Judge Boasberg wasn’t willing to let bygones be bygones when it came to contempt of court.

No Get-Out-of-Contempt-Free Card

On March 20, Judge Boasberg issued a show cause order instructing the government defendants to explain why he shouldn’t hold them in contempt for violating his order. After the Supreme Court swooped in to save Trump’s bacon, the show cause hearing scheduled for April 3 was taken off the calendar. But that wasn’t the end of story.

The Justice Department has argued that the eventual reversal of the TRO functions as a retroactive permission slip for them to defy it. But that is simply not the law. Under what’s known as the “collateral bar rule,” if you deliberately defy a court order, you cannot later assert that the order you defied was illegal as a defense to contempt of court.

As Judge Boasberg pointed out:

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 against criminal-contempt charges. They chose the latter course

You pay your money, you take your chances.

Contemptible Contemnors

Under 18 U.S.C. § 401, federal judges may “punish by fine or imprisonment, or both” any “misbehavior” in the presence of the court that obstructs justice or “disobedience or resistance” to a court order. A finding of criminal contempt requires proof beyond a reasonable doubt the the order was “clear and reasonably specific,” that the defendant did in fact violate it, and that he did so willfully.

Here the plaintiffs’ smirking insolence, including Secretary of State Rubio tweeting out Bukele’s music video of the prisoners getting off the planes and being stripped and shaved at CECOT, go a long way to proving that the violation was willful. And the government’s refusal to answer direct questions about the status of the planes, followed by its preposterous excuse that the judge’s oral order didn’t count until it was issued in writing, seal the deal.

“Hustling class members to an airport before the Proclamation had even been published and in the face of a suit that sought a TRO was bad enough. The decision to launch planes during the afternoon hearing was even worse,” Judge Boasberg fumed, dissecting the hearing transcript in painstaking detail.

“The Government plainly had an opportunity to avoid noncompliance — and yet it chose to press ahead,” he concluded. “Taken together, this behavior indicates ‘deliberate or reckless disregard’ of the Order, leading this Court to conclude that there is probable cause that Defendants willfully disobeyed a binding judicial decree.”

Now What?

The usual remedy for contempt is for the contemnor to go back and comply with the order he blew off. Here, the appropriate course of action would have been for the government to unload those planes in Texas on March 15 and appeal the TRO. Then when the Supreme Court reversed Judge Boasberg, the AEA deportees could have filed habeas petitions.

And so the judge suggests that the government can purge its contempt by giving the deportees, who have been denied access to counsel in CECOT, the due process they were entitled to:

The most obvious way for Defendants to do so here is by asserting custody of the individuals who were removed in violation of the Court’s classwide TRO so that they might avail themselves of their right to challenge their removability through a habeas proceeding. Per the terms of the TRO, the Government would not need to release any of those individuals, nor would it need to transport them back to the homeland.

But, perhaps wary of being accused of doing “foreign policy” from the bench, he also invites the government to “propose other methods of coming into compliance, which the Court will evaluate.”

BFFR

Okay, we all know the government isn’t going to do that. The whole point of this exercise is to put the deportees beyond the jurisdiction of American courts by employing the creative fiction that the US has no control over them in that Salvadoran hellhole.

And Judge Boasberg knows it, too. So he’s got a four-step plan to make this whole thing very unpleasant for the Trump administration if they won’t play ball.

“The Court will begin by requiring declarations,” he wrote. “Should those be unsatisfactory, the Court will proceed either to hearings with live witness testimony under oath or to depositions conducted by Plaintiffs.”

Hey, Marco Rubio! Get psyched to be deposed by ACLU superlawyer Lee Gelernt!

“The next step would be for the Court, pursuant to the Federal Rules of Criminal Procedure, to ‘request that the contempt be prosecuted by an attorney for the government,’” he went on, finally ending with a threat to go nuclear. “If the Government ‘declines’ or ‘the interest of justice requires,’ the Court will ‘appoint another attorney to prosecute the contempt.’”

That last step is a reference Fed. R. Crim. P. 42(a)(2), which not only allows but requires a federal judge to appoint an outside prosecutor if the Justice Department refuses to accept a criminal contempt referral:

The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

Translation: You can either give those men due process like the Supreme Court said they were entitled to, or you can spend the next six months fighting with me. Pick your poison.

The DOJ is currently attempting to pick the “no poison” option. It noticed an appeal of the probable cause ruling — although that order is not appealable.

Credit Where Due

None of this would have happened without the intercession of Chief Justice John Roberts and his band of howler monkeys. But if the Chief thought that cutting the legs out from under Judge Boasberg would end the crisis, he was deeply mistaken. Instead the crisis has now spread across the country.

The ACLU filed multiple habeas corpus lawsuits to protect potential AEA deportees, securing TROs in Texas, New York, and Colorado. The family of Kilmar Abrego Garcia, whom the government barred from being deported to his native El Salvador, filed a lawsuit in Maryland that landed at the Supreme Court just one week later. The DOJ is in more or less open defiance of Judge Paula Xinis, who (like Judge Boasberg) has made it clear that she’s going to make this maximally unpleasant for the government if they force her to. Judge Boasberg is gearing up for a nasty fight over contempt.

And meanwhile, the case that started it all hasn’t even gone away. The ACLU filed notice last night that it intends to amend its complaint as a petition for habeas corpus, since the deported men are now outside the US and entitled to file their claims in DC thanks to multiple precedents established when we renditioned all those prisoners to Guantanamo.

The conflagration is here. And thanks to SCOTUS’s dithering, it’s hotter than ever.