By ALANNA DURKIN RICHER, MARK SHERMAN and MICHAEL KUNZELMAN, Associated Press
WASHINGTON (AP) — A federal judge’s ruling that the Trump administration appears to have willfully violated his order to turn around planes of migrants headed for El Salvador increases the prospect of officials being held in criminal contempt of court and potentially facing possible prosecution.
U.S. District Judge James Boasberg said in his ruling on Wednesday that probable cause exists to hold the administration in contempt over its defiance of his order in the case involving migrants sent to a notorious El Salvador prison. The judge is giving the administration a chance to remedy the violation first before moving forward with such an action.
The White House says it’s planning to appeal.
It’s the latest standoff between the administration and the judiciary, which has blocked a slew of President Donald Trump’s sweeping executive actions around immigration and other matters.
Here’s what to know about the judge’s ruling, contempt of court and what happens next:
The judge’s order and the administration’s violation
The case stems from Trump’s invocation of a 1798 wartime law, the Alien Enemies Act, to deport Venezuelan migrants it accuses of being gang members. During an emergency hearing last month after several migrants sued, Boasberg had ordered the administration not to deport anyone in its custody under the act.
When told there were already planes in the air headed to El Salvador, which has agreed to house deported migrants in a notorious prison, the judge said the aircraft needed to be returned to the United States. That didn’t happen.
Hours later, El Salvador’s president, Nayib Bukele, announced that the deportees had arrived in his country. In a social media post, he said, “Oopsie…too late” above an article referencing Boasberg’s order.
The Justice Department has argued the judge’s order didn’t apply to planes that had already left U.S. airspace by the time his command came down.
Boasberg said the government’s “actions on that day demonstrate a willful disregard for its Order.” Even though the Supreme Court earlier this month vacated Boasberg’s ruling that blocked the deportations, the judge said that does not “excuse the government’s violation.”
Judge warns of possible contempt of court prosecution
Boasberg said the administration can avoid contempt proceedings if it attempts to remedy the violation by retaking custody of the deportees, who were sent to the El Salvador prison in violation of his order, so they have a chance to challenge their removal. The judge wrote that the government “would not need to release any of those individuals, nor would it need to transport them back to the homeland,” but it’s unclear how that would work.
Boasberg said if the administration chooses not to remedy the violation, he will move forward with trying to identify the official or officials who made the decision not to turn the planes around. The judge said he would start by asking the government to submit written declarations in court, but he could turn to hearings with live witnesses under oath or depositions.
Then, he could refer the matter for prosecution. Since Trump’s Justice Department leadership would almost certainly opt not to bring a case, the judge said he would appoint another attorney to prosecute the contempt case should the government decline to do so.
Rory Little, a law professor of constitutional law at UC Law San Francisco, believes the government could easily avoid a contempt finding.
“Boasberg doesn’t suggest it, but if they put those 200 people back on a plane and brought them back, that would purge the contempt for sure. It’s just that we don’t think Trump’s going to do that,” Little said.
Little said Boasberg suggested a “much less intrusive method” for the administration to comply with his order.
“He is being as careful as he can be to avoid the face-to-face, ugly confrontation that we all think must be coming sooner or later,” he said.
The administration could also be facing possible contempt of court in another case involving Kilmar Abrego Garcia, a Maryland man whom the administration has acknowledged was mistakenly sent to the El Salvador prison. The judge in that case has said she is determining whether to undertake contempt proceedings, saying officials “appear to have done nothing to aid in Abrego Garcia’s release from custody and return to the United States” despite a Supreme Court ruling that the administration must “facilitate” his release.
Criminal contempt cases are rare
Judges have been willing to hold officials and agencies in contempt for failing to abide by rulings, even occasionally seeking to impose fines and imprisonment. But higher courts have almost always overturned them, Yale law professor Nicholas Parrillo wrote in a 2018 Harvard Law Review article that surveyed thousands of cases and turned up 82 contempt findings by federal judges since the end of World War II.
In a long-running dispute over money, the federal government holds in trust for Native American tribes, U.S. District Judge Royce Lamberth held interior secretaries Gale Norton, a Republican, in 2002, and Bruce Babbitt, a Democrat, in 1999, in contempt and twice ordered the Interior Department to disconnect its computers.
The federal appeals court in Washington overturned the contempt charge against Norton and finally removed Lamberth from the case in 2006.
Even without sanctions, though, contempt findings “have a shaming effect that gives them substantial if imperfect deterrent power,” Parrillo wrote. But he acknowledged that the potency of contempt rests on the widely shared view that officials comply with court orders.
In 1987, a divided Supreme Court ruled that district court judges have the authority to appoint private attorneys to prosecute criminal contempt actions. Justice Antonin Scalia, who disagreed with the majority decision, concluded that the courts don’t have the power to appoint attorneys to conduct contempt prosecutions.
Stanford Law School professor Robert Weisberg, who teaches criminal procedure, said Boasberg’s claim that the government flagrantly violated his order is “very convincing.”
“This looks so sound to me that I think it will be difficult to win a reversal, which means we may have a standoff,” he said.
Weisberg said he is concerned that the showdown between the judge and administration could move the government even closer to a constitutional crisis.
“I’m supposed to say, because everybody else does, that we have to be careful about using the term ‘constitutional crisis.’ It means too many things, it’s overused,” he said. “That aside, what the country has been waiting for … some with happy anticipation, is for a flat-out refusal to obey a legal court order. This is pretty close.”
Originally Published:
Source: Paradise Post