The District of Columbia Court of Appeals. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.
JUDGE BOASBERG’S UNCONSTITUTIONAL QUEST TO HOLD TRUMP’S DOJ IN CONTEMPT COMES TO AN ABRUPT AND IGNOBLE END
INTRODUCTION
Previous editions of this blog have examined the drama between the Executive and Judicial branches as the result of the execution of a Presidential Proclamation issued on March 14th, 2025, invoking the Alien Enemies Act and ordering the removal forthwith of members of Tren de Aragua (TdA), a criminal as well as a declared foreign terrorist organization.In fact, on February 20, 2025, Secretary of State Marco Rubio designated TdA as a foreign terrorist organization pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, which permits such designation for any foreign group engaging in terrorism that threatens the security of United States nationals or the national security of the United States. At the core of the President’s Proclamation pursuant to the Alien Enemies Act was the assertion that TdA was part of a weaponized migration scheme by the illegitimate regime of President Maduro of Venezuela, who has been indicted for drug trafficking and has a 50-million-dollar bounty for his arrest. The migration, on an ordered and systematic basis, was declared by President Trump, based on intelligence, to be a predatory incursion or invasion by a foreign national-backed group. On March 15th the Order was implemented, and the battle was joined. A group of 100 or so were to be flown to CECOT, a secure facility in El Salvador, pursuant to an agreement with our Secretary of State on behalf of the Executive Branch and the government of El Salvador. Despite the removal actions having taken place in Texas, the ACLU “judge-shopped” and pulled an assignment to Judge Boasberg in the District of Columbia United States District Court, and within hours he had ordered aircraft already in flight to turn around. He allowed the ACLU to run the Executive Branch through his Court. He ultimately issued a TRO to stop the removals and found that Executive Branch officials had violated his rushed and confusing orders—both oral and docketed minute Orders. He not only initiated criminal contempt proceedings but also stated that if the DOJ would not approve of a prosecution, he would appoint a private attorney to do so! Long story short—the Supreme Court, in an emergency appeal, found that Judge Boasberg’s DC court was the wrong venue and that there was no cause of action. His TRO was vacated. Not satisfied, Judge Boasberg still persisted that he had jurisdiction to pursue those officials who he felt violated his Orders to turn planes around and to take custody of the removed aliens notwithstanding the fact that they were in El Salvador. In defiance of the spirit and letter of the Supreme Court’s vacating of his TRO, he still pursued his contempt quest. Last week the District of Columbia Court of Appeals granted the drastic remedy of mandamus, ordering the dismissal of the proceedings and vacating Judge Boasberg’s Order finding contempt.Two of the Judges on the reviewing panel were not kind to Judge Boasberg, and this boiled down to a clash between branches in a Republic based upon separation of powers.
ALTHOUGH THE SUBSTANTIVE USE OF THE ALIEN ENEMIES ACT WAS NOT AT ISSUE, TWO JUDGES SEEMED VERY DEFERENTIAL TO THE PROCLAMATION AND THE POLITICAL NATURE OF THE EXECUTIVE FINDINGS
Circuit Judges Katsas and Rao concurred in a finding that Judge Boasberg had abused his discretion and exceeded his authority in the issuance of directives to the Executive on how to conduct both immigration and foreign policy. His refusal to dismiss his contempt finding even after the Supreme Court found that the TRO he issued was to be vacated was so disturbing, a rare and drastic remedy of mandamus—one Court directing another to follow the law—was granted. The Circuit Judges, in separate concurring opinions, stated the following:
“This case involves an extraordinary, ongoing confrontation between the Executive and Judicial Branches. On March 15, 2025, the Executive sought to implement a presidential proclamation mandating the swift, wholesale removal of adult members of the Venezuelan criminal gang Tren de Aragua (TdA)—a designated foreign terrorist organization. This operation required precise coordination among at least three different sovereign nations, as planes carrying more than 100 alleged TdA members flew from Texas to Honduras to El Salvador. The operation also involved a transfer of physical custody over these detainees from the United States to El Salvador, accomplished at a Salvadoran airport with Salvadoran security forces assembled en masse. But while this operation was ongoing, five alleged TdA members sued in Washington, D.C., to prevent the removals, and the district court urgently attempted—within a matter of hours—to preliminarily assess their lawfulness. After flights carrying some of the alleged TdA members had exited United States airspace, the court, through a minute order, temporarily restrained the removals. According to the Executive Branch, the removals had already occurred before the TRO was entered. According to the district court, the Executive carried out the removals in defiance of the TRO.”
The Circuit Judges laid bare why Judge Boasberg had abused his discretion and implied, without stating, that he defied a Supreme Court ruling vacating his jurisdiction to do anything related to the infirm TRO. They went on:
“The district court’s order raises troubling questions about judicial control over core executive functions like the conduct of foreign policy and the prosecution of criminal offenses. And it implicates an unsettled issue of whether the judiciary may impose criminal contempt for violating injunctions entered without jurisdiction. In response to these events, the district court initiated a criminal-contempt proceeding. The court found probable cause that some federal officials willfully violated the TRO, and it ordered the government to identify who. The court offered to stand down if the Executive Branch chose to purge the putative contempt by asserting custody over the removed individuals—Venezuelan nationals then being detained by the Salvadoran government in El Salvador. If necessary, the court promised to appoint a private attorney to prosecute the responsible Executive Branch officials.”
Circuit Judge Rao went further and found an outright abuse of discretion on the part of Judge Boasberg, a rare finding, which suggests an agenda outside of the proper judicial role:
“This case arises in the midst of a high-stakes clash between the Executive Branch and a district court. In March, the President issued a proclamation ordering the removal of members of the Venezuelan criminal gang Tren de Aragua, a designated foreign terrorist organization, pursuant to the Alien Enemies Act. The following day, the government removed dozens of alleged gang members from the United States and transferred them to the custody of El Salvador. But while the removal was in process and after two planes carrying the detainees had already left the United States, the district court entered a temporary restraining order (TRO) barring the detainees’ removal. The Supreme Court subsequently vacated the TRO, holding the district court lacked authority to issue it. Despite the Supreme Court’s decision, the district court sought to remedy what it perceived as the Executive’s noncompliance with the vacated TRO. Relying on its criminal contempt authority, the court issued an order finding probable cause that government officials willfully violated the TRO by not turning the planes around. The order offered the government a choice: either (1) come into compliance with the vacated TRO, such as by asserting custody over the individuals detained in El Salvador, or (2) identify the officials responsible for the removals so the district court could initiate prosecutions for criminal contempt. The district court’s order is a clear abuse of discretion that warrants the drastic and extraordinary remedy of mandamus.When an injunction has been vacated, as occurred here, a district court loses the authority to coerce compliance with the order.”
So endeth the lesson.
CONCLUSION
The Executive Branch has wide authority to enforce immigration law and to engage in its related and inextricably intertwined foreign policy. In large part these raise political questions that are not justiciable and for which the Judicial branch would show deference pursuant to Constitutional design. Judge Boasberg was determined to cast the Trump DOJ in an unfavorable light by usurping his proper role. He has been the subject of a complaint by the Department of Justice, and his fitness is in question. He gave a convicted FBI attorney at the core of Russiagate’s FISA manipulation a token sentence, and that attorney has seen his DC law license restored as a result. In many years of practice, I have rarely seen findings of an abuse of discretion on the part of a United States District Judge and have never seen a mandamus finding ordering such Judge to follow the law. Extraordinary. Executive 1, Judiciary 0, for now.
Mike Imprevento
August 12, 2025
