Judge Boasberg Threatens to Hold Trump Administration in Contempt

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Judge Boasberg Threatens to Hold Trump Administration in Contempt 1

District Judge James Boasberg issued a ruling today that basically finds the Trump administration in contempt for deportation flights that took place contrary to an order he issued last month. The judge also gives the Trump administration one week to correct its behavior and potentially avoid the contempt finding.

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US District Judge James Boasberg ruled Wednesday that “probable cause exists” to hold Trump administration officials in criminal contempt for violating his orders in mid-March halting the use of the Alien Enemies Act to deport alleged Venezuelan gang members…

“The Court ultimately determines that the Government’s actions on that day demonstrate a willful disregard for its Order, sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt,” Boasberg wrote in a 46-page ruling detailing his decision.

“The Court does not reach such conclusion lightly or hastily; indeed, it has given Defendants ample opportunity to rectify or explain their actions,” he added. “None of their responses has been satisfactory.”

Even CNN sees this as somewhat irregular, suggesting Boasberg is trying to get his way with the Trump administration without alarming SCOTUS:

CNN legal analyst Steve Vladeck said these moves are rare.

“Holding federal executive branch officials in criminal contempt is just about unheard of, once in a blue moon,” said Vladeck, a professor at the University of Georgetown School of Law. “Part of why Chief Judge Boasberg is moving cautiously is because he’s trying to walk a tightrope, not letting the government off the hook for its misbehavior, but also not provoking pushback from either the DC Circuit or the Supreme Court.”

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Early on in his 46-page decision, Boasberg acknowledges that the Supreme Court already vacated his temporary restraining order. How then can the Trump administration be held in contempt for something that was already dismissed by a higher court?

One might nonetheless ask how this inquiry into compliance is able to proceed at all given that the Supreme Court vacated the TRO after the events in question. That Court’s later determination that the TRO suffered from a legal defect, however, does not excuse the Government’s violation. Instead, it is a foundational legal precept that every judicial order “must be obeyed” — no matter how “erroneous” it “may be” — until a court reverses it. If a party chooses to disobey the order — rather than wait for it to be reversed through the judicial process — such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order…

So that’s his argument. It doesn’t matter that his TRO was wrong, it matters that the administration didn’t obey it before it was vacated. From there, Boasberg eventually gets to the payoff, which is that he’s giving the administration a week to “purge” its contempt, something it can do by obeying the TRO which the Supreme Court has already vacated.

So now what?  The Court last details the next steps that these proceedings may take.   First, before initiating any criminal-contempt proceedings, courts typically allow the contumacious party an opportunity to purge its contempt — that is, to remedy its violation by voluntarily obeying the court order…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. The Court will also give Defendants an opportunity to propose other methods of coming into compliance, which the Court will evaluate.

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If the administration refuses to do that within the next week, the court will identify who is responsible for the contempt and refer them to the DOJ for prosecution. However, if Boasberg isn’t satisfied with the DOJ’s response, he threatens to appoint his own prosecutor.

In the event that Defendants do not choose to purge their contempt, the Court will proceed to identify the individual(s) responsible for the contumacious conduct by determining whose “specific act or omission” caused the noncompliance…At the suggestion of the Government in the last hearing, the Court will begin by requiring declarations. Should those be unsatisfactory, the Court will proceed either to hearings with live witness testimony under oath or to depositions conducted by Plaintiffs…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.” If the Government “declines” or “the interest of justice requires,” the Court will “appoint another attorney to prosecute the contempt.”

I’m not an attorney but this argument isn’t going over well with some attorneys on the right.

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Yes, there is much SCOTUS case law about litigants being required to comply with Court orders — even if erroneous — until they are reversed.

NONE of that case law deals with a contest between two branches of the federal government where the Exec. has been dragged into Court without jurisdiction, the court does not appropriately establish that it has jurisdiction, and the court then issues an unlawful order directing the Executive branch to act in a particular manner.

SCOTUS is going to need to defuse this bomb that Judge Boasberg has started the timer on.

Could Judge Boasberg order Donald Trump to vacate the White House and allow Joe Biden back in, and then hold Trump in contempt when he refuses just because it was a judicial order? Given the lawfare, it would be good to have SCOTUS rule on this.

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We have a week for this to play out so we’ll have to see what develops.

Posted in Republican News