Full DC Circuit grills DOJ in bid to block contempt probe over El Salvador deportations

WASHINGTON (CN) — The Justice Department urged the full D.C. Circuit on Tuesday to block a federal judge from continuing a criminal contempt probe regarding the government’s willful noncompliance with a March 2025 order to return 137 Venezuelan migrants summarily deported to El Salvador.Justice Department attorney Brett Shumate argued that Chief U.S. District Judge James Boasberg had “gone off the rails” by taking an investigative role in his effort to determine who else could be held in contempt beyond former-Secretary of Homeland Security Kristi Noem, whom the government offered as the primary decision maker.Tuesday’s arguments are the latest chapter in one of the longest-running and most striking cases of President Donald Trump’s second administration, sparked by his March 15, 2025, proclamation invoking the rarely used Alien Enemies Act to summarily deport migrants designated, without evidence, of being Tren de Aragua gang members.The American Civil Liberties Union rushed into court for an emergency Saturday hearing the same day, during which two planes loaded with migrants took off and apparently ignored Boasberg’s order to either turn around or return without transferring them into Salvadoran custody.To date, the only migrant held at the Salvadoran mega prison CECOT to return was Maryland man Kilmar Ábrego García, whose return the government only facilitated in a failed effort to criminally prosecute him.Shumate described the government’s position as an effort to prevent a further “clash between the branches” of government, which would only become worse if the appellate court allowed Boasberg to refer Noem and any other Justice Department attorneys for prosecution.U.S. Circuit Judge Robert Wilkins, a Barack Obama appointee, rejected that assertion, noting the government’s separation of powers argument appeared to hinge on the mere possibility of a “trial of an executive-branch official by a district court judge for contempt.”Shumate suggested that even an accusation of contempt against senior government officials, as well as the appointment of a special prosecutor by the federal judge raised separation of powers concerns.U.S. Circuit Judge Patricia Millett, an Obama appointee, followed Wilkins’ line of questioning.“The separation of powers is going to run two ways here, its not a one-way street in favor of the executive branch,” Millett said. “The Supreme Court has been crystal clear that the contempt power is an inherent power of the courts, necessary for them to function. The separation of powers runs two ways here, it can’t be your tiebreaker.”U.S Circuit Judge Neomi Rao, a Trump appointee, was the most skeptical of Bosaberg’s authority, consistently pointing back to an April 14 split decision that the judge had abused his discretion by probing into “high-level executive branch deliberations about matters of national security and diplomacy.”Rao wrote the majority opinion in the original 2-1 appellate decision, with U.S Circuit Judge Justin Walker, a fellow Trump appointee, concurring, and U.S. Circuit Judge Michelle Childs, a Joe Biden appointee, dissenting.ACLU attorney Lee Gelernt warned the court that siding with the Trump administration in the case would strip federal courts of the ability to hold government officials accountable for ignoring orders, particularly in a case where the government’s conduct was “so disrespectful to the judiciary.”“If you don’t uphold what this district court did, it’s going to send a horrible message, not just to the districts court in this district,” Gelernt said. “But the whole country will follow Judge Boasberg’s lead in saying, ‘the court’s deserve respect, we’re a coequal branch and this can’t happen.’”U.S. Circuit Judge Gregory Katsas, a Trump appointee, seemed to side with the Justice Department’s separation of power concerns, noting that “the only way this works if the prosecutor is independent of the attorney general’s control.”Gelernt repeatedly highlighted the whistleblower account by former Justice Department attorney Erez Reuveni where he described a March 14, 2025, meeting in which then-acting Deputy Attorney General Emil Bove advised telling the courts “fuck you” and ignore any order blocking Alien Enemies Act removals. Bove has since been confirmed to the Third Circuit Court of Appeals.Bove, and any other attorneys involved in that discussion, would be prime targets for a criminal contempt prosecution in this case, Gelernt said, urging the court not to simply accept Noem as a “sacrificial lamb” to avoid further contempt proceedings.In the 18 months since their deportation, the 137 men have been released from CECOT and many have returned to their home country Venezuela.On Feb. 12, Boasberg ordered the government to facilitate their return to the U.S., if they so chose, where they would be placed back into immigration custody but could challenge their gang designations and be allowed to remain in the country.A three-judge panel expressed doubt on Friday that Boasberg had the authority to order the return of the 137 migrants, as the only relief for a habeas petition was release from detention, not return to the United States.The full panel — who held three hours of arguments in the E. Barrett Prettyman Courthouse’s ceremonial courtroom, reserved for particularly significant cases — included Chief U.S. Circuit Judge Sri Srinivasan, a Barack Obama appointee, along with fellow Obama appointee U.S. Circuit Judge Cornelia Pillard, and U.S. Circuit judges Florence Pan and Bradley Garcia, both Biden appointees.U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee, was the 11th member of the en banc panel, but did not participate in the arguments.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads