Judge James Boasberg indicated during a hearing on Thursday that he was leaning toward beginning contempt proceedings against Trump administration officials after they failed to follow his verbal order last month to return alleged Venezuelan gang members who were deported under the Alien Enemies Act.
Boasberg said he believed that the Trump administration “acted in bad faith” by surreptitiously rushing to deport two planes of the alleged Tren de Aragua members to a Salvadoran prison on March 15, even as a legal challenge to the deportations was already underway.
“If you really believed everything you did that day was legal and would survive a court challenge, you wouldn’t have operated the way you did,” Boasberg said.
The judge also observed that returning the migrants was doable because the United States brought back a handful of female deportees rejected by Salvadoran officials because CECOT, the notorious terrorist confinement center they were shipped to, does not accept women.
“It’s certainly operationally feasible for those planes to bring individuals back to the United States,” Boasberg said.
Boasberg issued a verbal order to the Department of Justice to return anyone deported under the Alien Enemies Act, a powerful wartime authority, by 7:00 p.m. on March 15. The judge has since been on a mission to determine whether the government defied his order.
The DOJ has argued that Boasberg’s oral order was not binding, but on Thursday, the judge appeared unconvinced by that claim and demanded the names of the Trump administration officials who were aware of his order when he gave it.
DOJ attorney Drew Ensign listed off a few names, including longtime DOJ attorney James McHenry and officials at the Departments of Homeland Security and State, but said others may be protected by attorney-client privilege.
Boasberg also asked who exactly decided to defy his verbal order, but Ensign said he did not know.
“So you standing here have no idea who made the decision to not bring the planes back?” Boasberg asked.
Ensign replied: “I do not know those operational details.”
Boasberg said he could issue an order about whether he believed there was probable cause to hold officials in contempt as early as next week. A finding of civil or criminal contempt, which judges can issue when parties disobey them, could include a process that involves further briefing or depositions and could eventually lead to penalties of fines or jail time.
Boasberg also grilled Ensign on the DOJ’s decision to wait to invoke the state secrets privilege until after the judge began prying last month about whether the administration flouted his order.
The DOJ had argued that the information about the flights was so secretive that providing it to the judge, even in an ex parte setting, would risk national security. Boasberg appeared incredulous as he asked how unclassified material could possibly be protected by the state secrets privilege.
“Can you point me to a single case where unclassified information is covered by the state secrets privilege?” Boasberg asked, calling the invocation “pretty sketchy.”
Ensign could not provide an example and said he no longer believed the matter was a “live issue.”
The dispute over Boasberg’s order comes amid a lawsuit brought by the American Civil Liberties Union that centers on the Trump administration deporting three planes’ worth of alleged Venezuelan and Salvadoran gang members on March 15. In sworn statements, ICE official Robert Cerna said the first two planes deported alleged Venezuelan members of Tren de Aragua under the Alien Enemies Act. The third plane deported migrants under Title 8, a separate deportation authority.
The ACLU’s lawsuit alleged that federal authorities gave the deportees no due process before flying them to a prison in El Salvador that abuses its detainees. The lawsuit alleged that the Alien Enemies Act proclamation was not being implemented properly and that the administration mistakenly deported people who were not members of the gang.
DOJ DECLINES TO ANSWER JUDGE’S QUESTIONS ON VENEZUELAN MIGRANT FLIGHTS
The Trump administration admitted to one such mistake this week in a separate case, but the Salvadoran migrant, whom the Trump administration alleges is a member of the MS-13 gang, was deported on the third plane, so the mistake would have been that he was improperly deported under Title 8, rather than the Alien Enemies Act, which is at issue in this case.
The Trump administration has asked the Supreme Court to reverse Boasberg’s temporary restraining order blocking the Alien Enemies Act after the circuit court in Washington declined to do so.