Appeals Court Pauses for Now Contempt Proposal by Trial Judge

by · NY Times

Appeals Court Pauses for Now Contempt Proposal by Trial Judge

Judge James E. Boasberg had threatened to open contempt proceedings to determine whether the Trump administration had violated his order not to deport Venezuelan migrants to El Salvador.

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The appeals court made clear that it was not ruling on the merits of Judge James E. Boasberg’s plan for contempt proceedings but rather wanted more time to study the issue.
Credit...Erin Schaff/The New York Times

By Alan Feuer

A federal appeals court on Friday night put off for the moment a plan by a trial judge to open contempt proceedings to determine whether the Trump administration had violated an order he issued last month stopping flights of Venezuelan migrants from being sent to El Salvador under a powerful wartime statute.

In a single-page order, a three-judge panel of the U.S. Court of Appeals for the District of Columbia said that it was entering what is known as an administrative stay to give itself more time to consider the validity of the contempt proposal by the trial judge, James E. Boasberg.

On Wednesday, Judge Boasberg, concerned that the White House had ignored his order to pause all deportation flights headed to El Salvador under the wartime law, known as the Alien Enemies Act, gave Trump officials a choice. He said they could provide the men who were sent without hearings to El Salvador the due process they had been denied or they could face a searching contempt investigation into who among them was responsible for having not complied with his directives.

In court papers filed on Friday morning, lawyers for the Justice Department told the appeals court that neither option was acceptable. The lawyers accused Judge Boasberg of overstepping his authority by seeking, on the one hand, to tell the Trump administration how to conduct foreign policy and, on the other, to effectively try to assume the role of an investigating prosecutor.

The appeals court made clear that it was not ruling on the merits of the Justice Department’s accusations. The panel simply wanted additional time to consider the complexities of Judge Boasberg’s plan.

That plan, laid out in an order this week, suggested that the judge was trying to pin down who in the administration was behind what he called the “willful disregard” of his oral instructions issued during a hearing on March 15. Speaking from the bench that day, he said any deportation flights headed to El Salvador under the Alien Enemies Act needed to be halted at once and that any planes already in the air should turn around.

But that did not happen, leaving nearly 140 Venezuelan migrants in the custody of jailers at a notorious Salvadoran prison known as the Terrorism Confinement Center, or CECOT.

Jude Boasberg’s proposal for the contempt proceedings explained in detail the increasingly painful measures the administration might face if it did not provide due process to the Venezuelan men.

The judge said it would begin with sworn declarations and then move on, if needed, to courtroom testimony under oath.

If he still could not determine who had given the directions to disobey his order, he said he would refer the case to the Justice Department for criminal prosecution. Aware that the department under Mr. Trump’s control would not be likely to file charges, Judge Boasberg said he would play a final card: a special provision of the criminal contempt law that would, in effect, allow him to appoint an outside prosecutor.

The Justice Department seemed particularly outraged that Judge Boasberg was considering appointing an outside prosecutor to pursue criminal charges against administration officials if, indeed, a case was warranted and the department itself refused to bring it.

The federal rules of criminal procedure say that in instances of criminal contempt, courts must first ask “an attorney for the government” to prosecute. But if the government declines the request, the rules maintain, “the court must appoint another attorney to prosecute the contempt.”

The Justice Department sought to push back on the idea that Judge Boasberg could find his own prosecutor to go after people inside the White House.

“District courts cannot outsource prosecutorial power to private citizens,” department lawyers told the appeals court, “insulate them from executive branch control and then unleash them against the executive branch.”

The appeals court, looking forward, asked the Justice Department and lawyers for the Venezuelan men to file additional papers about the proposed contempt proceedings next week.

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