Appeals Court Halts Boasberg’s Contempt Proceedings Over Deportations

The Justice Department accused U.S. District Judge James Boasberg of pursuing a fishing expedition.

District Judge James Boasberg, chief judge of the District Court for the District of Columbia, stands for a portrait at E. Barrett Prettyman Federal Courthouse in Washington on March 16, 2023. Carolyn Van Houten/The Washington Post via AP

A federal appeals court has halted U.S. District Judge James Boasberg’s attempt to probe the Trump administration’s purported refusal to comply with blocks he placed on its deportations of suspected Venezuelan gang members earlier this year.

The decision on Dec. 12 is the latest development in an interbranch battle over such deportations by the administration. In a per curiam, or unsigned opinion, the U.S. Court of Appeals for the D.C. Circuit placed a temporary stay on Boasberg’s order requesting testimony about the administration’s decision-making.

“The administrative stay should not be construed in any way as a ruling on the merits of that petition or motion,” the court added.

It came the same day the Justice Department asked to block Boasberg’s order and remove him from the case.

“This radical, retaliatory, unconstitutional campaign against the Trump administration will not stand,” Attorney General Pam Bondi said on Dec. 12 in a social media post accusing Boasberg of “judicial activism.”

Boasberg had issued two temporary restraining orders to prevent the administration from removing suspected gang members under the Alien Enemies Act.

While the Supreme Court has yet to say whether Trump validly invoked that law, it did vacate Boasberg’s orders on the basis that the underlying lawsuit was brought in the wrong court.

That flaw in the case should have precluded Boasberg’s inquiry into whether the orders were followed, the Justice Department told the D.C. Circuit.

Boasberg maintained in April, however, that he had probable cause to find contempt and said he could still probe whether the administration willfully disobeyed a judicial order.

The judge also said that the administration could avoid contempt by asserting custody over the removed individuals so they had an opportunity to challenge their detention.

The D.C. Circuit later said Boasberg abused his authority by attempting to coerce compliance with his original order.

However, the D.C. Circuit’s decision didn’t prevent further contempt proceedings.

U.S. Circuit Judge Gregory Katsas suggested the proceedings should end and suggested that Boasberg’s orders were ambiguous.

Although Boasberg prohibited the removal of suspected gang members, Katsas said it wasn’t clear whether removal entailed simply taking those individuals out of the country or transferring custody to El Salvador, where they were eventually detained.

After the appeals court decision, Boasberg proceeded to probe the administration’s compliance with his order.

He received declarations from officials, such as Secretary of Homeland Security Kristi Noem, who said she transferred custody of the detainees on legal advice from a Homeland Security attorney and senior leadership at the Justice Department.

Boasberg said that because the declaration didn’t contain enough information for him to determine whether Noem willfully violated his order, he needed more testimony.

He followed by seeking testimony from two other attorneys who represented the administration in the case.

Boasberg defended this potential testimony—scheduled for Dec. 15 and Dec. 16—as a way for the court to further inquire into the basis for government officials’ decisions to transfer deportees out of American custody.

In its filing to the D.C. Circuit on Dec. 12, the administration accused Boasberg of pursuing a fishing expedition and portended “a circus that threatens the separation of powers and the attorney-client privilege alike.”

By investigating officials’ state of mind, the department said, Boasberg was intruding on an investigative function that belonged to the executive branch. Boasberg also denied the administration’s request to reconsider his order for testimony.

In a decision on Dec. 12, he said that the testimony could shed light on a meeting Justice Department attorneys had on March 14, the day before he blocked removals.

“What occurred at the March 14 meeting with Department of Justice attorneys (including Emil Bove, Erez Reuveni, and Drew Ensign), for example, may well help to illuminate officials’ decisions the next day and their mental states,” Boasberg said.

“Nor would everything said at such a meeting necessarily be covered by the attorney-client privilege—the sole privilege Defendants have invoked—inasmuch as no client was allegedly present, and a policy (rather than legal advice) was apparently discussed.”

One of the attorneys who was set to testify is Erez Reuveni, who was fired by Bondi earlier this year. Reuveni has been involved in multiple cases, including that of Kilmar Abrego Garcia, whom Reuveni said was mistakenly deported. He later filed a whistleblower disclosure to Congressional committees about alleged resistance by Justice Department officials to court orders.

In a letter to Boasberg on Dec. 11, Reuveni’s attorney Michael Bromwich expressed concern about the scope of his client’s testimony and privileged communications. Bromwich wrote that “in order to provide testimony while abiding by his ethical obligations, Mr. Reuveni needs the Court to issue a ‘final order’ at the outset of Mr. Reuveni’s testimony … concerning the scope of that testimony and what the Court and the parties may permissibly ask Mr. Reuveni.”