Trump officials and judge face off over flights to El Salvador in rare, high-stakes contempt
Two planes carrying Venezuelan migrants out of the US were midair on March 15 when a federal judge in Washington ordered the Trump administration to turn them around.
Instead, the planes landed in El Salvador hours later, touching off an extraordinary power struggle between the judicial and executive branches of the US government over what happened and why the judge’s order went unexecuted.
That fight entered a critical phase on Friday when US District Judge James Boasberg relaunched an investigation to determine whether the Republican administration deliberately ignored his instruction, letting could proceed. Here’s a look at what makes this case unusual and what could happen now:
Criminal contempt inquiries such as Boasberg’s are extremely rare
They are a last resort, former federal judges Jeremy Fogel and Liam O’Grady told The Associated Press in an interview Monday conducted on Zoom.
“The judge has to believe that some line may have been crossed that you can’t ignore,” said Fogel, who spent 20 years on the bench in Northern California before retiring in 2018.
Fogel said the issues raisedBoasberg’s contempt probe — whether the migrants were deprived of their due process rights and whether the court’s authority was flouted — meet that standard.
“Whatever actually happened, I think it would be very hard for him to just let it go,” the judge said.
O’Grady, who served in Alexandria, Virginia, just outside Washington, for 16 years, credited Boasberg for his efforts to determine the facts.
“He’s making sure that his record is absolutely clear,” O’Grady said.On Friday, Boasberg ordered the administration to submit declarations by December 5 from all officials involved in the decision not to return the flights to the US. He said he will then decide whether to seek testimony from witnesses.
The declarations should detail the officials’ roles in the decision, the judge said in the brief order.
Justice Department attorneys had urged him to abandon the probe, but Boasberg said he must determine whether Homeland Security Secretary Kristi Noem or anyone else “should be referred for potential contempt prosecution.”In other words, the Court must decide if: (1) the court order was ‘clear and reasonably specific’; (2) ‘the defendant violated the order’; and (3) ‘the violation was willful,’” he wrote.
In a court filing on Tuesday, Justice Department attorneys said Noem decided the migrants aboard the flights could be transferred to El Salvador after receiving advice from the Homeland Security department’s acting general counsel, Joseph Mazzara.
Mazzara had received legal advice about the planes from Deputy Attorney General Todd Blanche and Principal Associate Deputy Attorney General Emil Bove, according to the filing.Trump officials have chafed at judicial oversight and repeatedly contested the power of judges to review executive branch policies, particularly on immigration.
“There is a deliberate effort to push the boundaries and try to curtail the authority of trial courts,” said David Noll, a Rutgers Law School professor who writes about the intersection of the law and politics.
Noll said he expects the Justice Department to fight the inquiry from the start, with “lots of appeals and chest thumping” that Boasberg is exceeding his authority.