Two planes carrying Venezuelan migrants outside the United States were in the air on March 15 when a federal judge in Washington ordered the Trump administration to return them.
Instead, the planes landed in El Salvador hours later, setting off an unusual power struggle between the judicial and executive branches of the U.S. government over what happened and why the judge’s order was not carried out.
That battle entered a critical phase on Friday when US District Judge James Bosberg reopened an investigation to determine whether the Republican administration deliberately ignored his instructions and allowed the planes to continue on their way to El Salvador.
judge previously concluded that it did He threatened to prosecute the official or officials responsible for contempt. The administration denied any violation.
But the Court of Appeal The Boasberg decision was overturned. The contempt investigation appeared to be over until another development occurred: a larger panel of judges was formed in the court The same Court of Appeal ruled on November 14 that the investigation could continue.
Here’s a look at what makes this case unusual and what could happen now:
They are a last resort, former federal judges Jeremy Vogel and Liam O’Grady told The Associated Press in a Monday interview on Zoom.
“A judge has to think that maybe some lines have been crossed that you can’t ignore,” said Vogel, who spent 20 years on the bench in Northern California before retiring in 2018.
The issues raised by Boasberg’s contempt of court investigation — whether immigrants have been denied their due process rights and whether the court’s authority has been violated — meet that standard, Vogel said.
“Whatever really happened, I think it will be difficult for him to let go,” the judge said.
O’Grady, who served in Alexandria, Va., outside Washington for 16 years, credited Boasberg with his efforts to determine the facts.
“He makes sure his record is crystal clear,” O’Grady said.
Boasberg on Friday ordered the administration to submit statements by December 5 from all officials involved in the decision not to restore flights to the United States. He said he would then decide whether to seek testimony from witnesses.
The judge said in the summary order that the statements must detail the officials’ roles in the decision.
Justice Department lawyers urged him to abandon the investigation, but Boasberg said he must determine whether Homeland Security Secretary Kristi Noem or anyone else “should be referred for possible contempt prosecution.”
“In other words, the court must decide whether: (1) the court’s order was “reasonably clear and specific”; (2) “the defendant violated the order”; and (3) “the violation was willful.”
In a lawsuit Tuesday, Justice Department lawyers said Noem decided that migrants could be transported on flights to El Salvador after receiving advice from the Department of Homeland Security’s acting general counsel, Joseph Mazara.
Mazzara received legal advice about the planes from Deputy District Attorney Todd Blanche and Principal Deputy Assistant District Attorney Emile Bove, according to the filing.
The judge’s directions to return them were issued orally in court but were not included in his written order, government lawyers said in a court filing on Tuesday.
The order prohibited the administration from removing “any individual plaintiffs from the United States for 14 days,” but said nothing about the flights that had already been removed.
Justice Department lawyers said in a court filing that the two planes had already left U.S. territory and airspace, so the migrants on board had already been “removed” and therefore fell outside the scope of the court order.
“Accordingly, the government asserts that its actions did not violate the court’s order — certainly not with the clarity required in criminal contempt — and no further action is justified or appropriate,” they wrote.
A federal appeals court judge said in August that the administration’s interpretation of Boasberg’s order was reasonable. Gregory Katsas, a judge on the U.S. Court of Appeals for the D.C. Circuit, wrote that the order “could have been reasonably construed” as merely prohibiting the government from “expelling detainees from the territory of the United States.” Katsas was appointed by President Donald Trump.
Trump officials have expressed anger at judicial oversight and repeatedly objected to judges’ authority to review executive branch policies, especially regarding immigration.
“There is a deliberate effort to push the boundaries and try to diminish the power of lower courts,” said David Noll, a professor at Rutgers Law School who writes about the intersection of law and politics.
Noll said he expected the Justice Department to resist the investigation from the beginning, with “a lot of appeals and votes” that Boasberg was exceeding his authority.
Trump has already attacked Boasberg. After the March 15 ruling, Trump mocked the judge as a “troublemaker and instigator” and called for his impeachment. Boasberg was nominated to the court by Democratic President Barack Obama and currently serves as chief judge of the federal court for the District of Columbia.
In July, the Ministry of Justice Filed a misconduct claim against him, alleging that he told Chief Justice John Roberts and other federal judges in March that the administration would provoke a constitutional crisis by ignoring federal court rulings.
Boasberg has framed the contempt investigation as an attempt to uphold the U.S. Constitution, which he says requires compliance with judicial orders. Separately, it is considering a request asking the administration to give at least 137 of the migrants, who have now returned to Venezuela, an opportunity to challenge their gang designation.
He accused Trump administration officials of removing immigrants from the United States, and said that significant evidence had emerged indicating that many of them were not linked to Al-Qaeda. Tren de Aragua ring.
But history shows that such sanctions are rarely issued or allowed to stand against a government.
A survey of thousands of federal court opinions published in the Harvard Law Review in 2018 found 82 contempt findings against government officials and agencies since the end of World War II. Judges issued or attempted to issue fines in 16 of those cases, but higher courts blocked this in all but three cases.
Jail time is even rarer. The study by Nicholas Parrillo, a professor at Yale Law School, found that judges credibly imprisoned or threatened to imprison a federal agency official in only four of the cases, and that higher courts similarly intervened to block the punishment.
Noll, the Rutgers law professor, said that if the investigation goes forward, it could impact the public debate about whether the administration can legally implement its mass deportation policy.
“A lot of the district court’s power comes from the ability to put a case before the public,” he said in a phone interview Tuesday.