President Donald Trump’s Department of Justice is working to fend off possible contempt in a case involving alleged Venezuelan gang members, a heated fight happening parallel to a broader court battle over whether the president has authority to deport them under a wartime law.
The possibility that Judge James Boasberg could hold Trump administration officials in contempt arose from the DOJ eschewing repeated orders from him. The DOJ’s actions have drawn criticism from legal experts, who say that dispute could detract from the related fight underway in the same case about Trump’s overarching deportation powers.
In the contempt fight, Boasberg has demanded the DOJ provide him with an explanation by Tuesday about how Trump administration officials did not disobey him. The judge has not made clear exactly how he would address a finding of noncompliance, but he recently floated contempt. Judges can hold parties in criminal or civil contempt as a punishment for disobedience. The penalty can include fines or jail time.
Separately, the D.C. Circuit Court of Appeals is set to hear arguments on Monday from the DOJ and the American Civil Liberties Union, which is representing the Venezuelans, about whether the court has any jurisdiction at all when it comes to Trump’s use of the deportation law, known as the Alien Enemies Act.
DOJ ‘not being terribly cooperative’
Boasberg, an Obama appointee and chief judge of the district court in Washington, D.C., encapsulated his concerns about the DOJ’s caginess in a hearing Friday.
He said the department’s “intemperate, disrespectful language” in its court filings was unlike anything he has seen before from the government.
“The government’s not being terribly cooperative at this point, but I will get to the bottom of whether they violated my order,” the judge said.
Boasberg has for the past week demanded details about three flights that took off on March 15 carrying what Secretary of State Marco Rubio indicated on X was more than 250 “alien enemy members of Tren de Aragua,” a transnational criminal gang. The ACLU has argued some were not gang members and were given no due process before they were abruptly shipped from the United States to a Salvadoran prison.
The flight details are needed, Boasberg has said, to understand whether the Trump administration defied orders he gave on March 15 to temporarily pause all Alien Enemies Act deportations.
The DOJ has been “tap-dancing” around answering Boasberg’s reasonable questions with “petulantly framed” court filings, former federal prosecutor Andy McCarthy wrote in an op-ed.
Former federal prosecutor Elie Honig said in a television interview he “cannot believe” the way the DOJ “is speaking to this judge.” Honig said he was “stunned the judge has let it get this far.”
DOJ attorneys have repeatedly dodged some of Boasberg’s questions about the flights, telling him he has no authority to ask them. They accused the judge of making “judicial intrusions” and usurping Trump’s power.
Outside of court, Trump called to impeach Boasberg, earning the president a rare rebuke from Supreme Court Chief Justice John Roberts. Attorney General Pam Bondi has blasted Boasberg as an “activist” who “supported Tren de Aragua terrorists.”
State secrets
The DOJ informed Boasberg moments before a recent deadline that the administration was weighing whether to assert the “state secrets” privilege to allow it to withhold information from the judge. Boasberg responded that the last-minute nature of the revelation was suspicious.
The state secrets privilege has been used on rare occasions for decades as a way for the government to block evidence from the court that contains national security secrets. The DOJ argued that the Alien Enemies Act, which requires a declaration of war or invasion, involved sensitive negotiations among multiple countries in Central and South America and that Cabinet members are currently assessing whether they qualify as state secrets.
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, told the Washington Examiner state secrets “can be used for lots of things.”
“I think the administration is asserting a robust vision of executive power, and Boasberg might not like it,” Shapiro said.
He said the judge was “trying to figure out whether his orders are being ignored, whether there’s contempt” and that the appropriate next step was for the appellate court to “step in and do something.”
“The way to kind of tamp down this ratcheting up of tensions and heat and both the Left and the Right being upset is to have more judges weigh in,” Shapiro said.
Boasberg’s ‘big error’
The ACLU is representing five Venezuelans, but its attorneys filed a class-action lawsuit that covers all migrants who qualify for deportation under Trump’s Alien Enemies Act proclamation.
Boasberg agreed to temporarily block the Alien Enemies Act from being used against that entire class of migrants instead of just the five.
Bill Shipley, a right-leaning former federal prosecutor, told the Washington Examiner the judge’s decision was hasty and contributed to the DOJ’s defiance because it “dramatically changed” the case.
“I think where Judge Boasberg made a big error, and what I think the government’s attitude is reflecting, is that without giving the government a meaningful opportunity to file an opposition or significantly argue the point, he simply accepted a dubious proposition that he had jurisdiction and he granted class certification,” Shipley said.
Boasberg has paused the flights for two weeks while he figures out if Trump’s use of the Alien Enemies Act was legal. He said Friday that the ramifications of Trump’s “unprecedented and expanded view” of the act are “incredibly troublesome” and “problematic.”
While an Immigration and Customs Enforcement official told the court deportees were “carefully vetted” to make sure they were violent Tren de Aragua members, the ACLU has argued the administration’s vetting process is deeply flawed and that federal authorities recklessly deported some innocent people to foreign prisons.
DOJ attorneys said the sole solution for that is for deportees to bring individualized court claims known as “habeas” claims in relevant venues, not class-action lawsuits in Washington. The ACLU said many migrants were given no opportunity to do that before they were deported.
Do the courts have a say?
The Trump administration’s assertions that the judge is not entitled to certain information are tied to the president’s broader argument that his use of the Alien Enemies Act is not the court’s business.
“The government could give that information without much consequence, but the government’s point is, you don’t have the authority to tell us we have to give it to you,” Shipley said.
DOJ attorneys argued in their filings that even if the court did have purview, the Alien Enemies Act gives Trump the power to issue a proclamation that orders the removal of specific noncitizens — in this case, Venezuelan members of Tren de Aragua who are over 13 years old — when the president decides two conditions have been met.
The first condition is that either a war or an invasion is taking place and the second is that it is attributable to a foreign government.
“The President’s Proclamation satisfies both conditions: TdA is intricately intertwined with the Maduro regime and functions as a government onto itself in parts of Venezuela, while the illegal entry into the United States of its members for hostile reasons is an ‘invasion’ or ‘predatory incursion,’” the DOJ attorneys wrote.
Georgetown University law professor Jonathan Turley wrote on his website that the “case presents a number of novel issues” and that defying the courts only works to undermine the Trump administration’s case.
TRUMP ADMINISTRATION PROJECTS DEFIANCE BUT SHOWS COMPLIANCE IN COURTS — FOR NOW
Turley said the courts must first address whether the judicial branch has any say over the executive branch’s use of the Alien Enemies Act. From there, a host of other considerations come into play.
“The point is only that there are good faith arguments on both sides to be made in the courts,” Turley wrote. “That is why we have independent courts and the finest judicial system in the world.”
Kaelan Deese contributed to this report.
