Judge Finds Probable Cause the Trump Regime is in CRIMINAL Contempt

Judge Boasberg has issued a 47-page opinion that there is probable cause that the government was in willful disregard of his March 15th orders.

Before the Supreme Court vacated both of Judge Boasberg’s temporary restraining orders, the court was considering contempt when the government blatantly refused to return two planes containing deportees sent to El Salvador. Today, Judge Boasberg issued an opinion concluding that probable cause exists to hold the Trump administration in criminal contempt.

My first question upon reading the headline was “How can a court find the government in contempt of violating a restraining order that was vacated by the Supreme Court?” Judge Boasberg answers that inquiry on page 2 of today’s opinion:

One might nonetheless ask how this inquiry into compliance is able to proceed at all given that the Supreme Court vacated the TRO after the events in question. That Court’s later determination that the TRO suffered from a legal defect, however, does not excuse the Government’s violation. Instead, it is a foundational legal precept that every judicial order “must be obeyed” — no matter how “erroneous” it “may be” — until a court reverses it. If a party chooses to disobey the order — rather than wait for it to be reversed through the judicial process — such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order. That foundational “rule of law” answers not just how this compliance inquiry can proceed, but why it must. The rule “reflects a belief that in the fair administration of justice no man can be judge in his own case,” no matter how “exalted his station” or “righteous his motives.”

As previously discussed, you have to follow a restraining order - even if you think it’s wrong, and even if a court later vacates it. The fact that the Trump administration didn’t follow the orders when they were given is the problem.

The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it. To permit such officials to freely “annul the judgments of the courts of the United States” would not just “destroy the rights acquired under those judgments”; it would make “a solemn mockery” of “the constitution itself.” “So fatal a result must be deprecated by all.”

The judge then talks about how the government defied his orders:

By mid-Sunday morning, the picture of what had happened the previous night came into clearer focus. It appeared that the Government had transferred members of the Plaintiff class into El Salvador’s custody hours after this Court’s injunction prohibited their deportation under the Proclamation. Worse, boasts by Defendants intimated that they had defied the Court’s Order deliberately and gleefully. The Secretary of State, for instance, retweeted a post in which, above a news headline noting this Court’s Order to return the flights to the United States, the President of El Salvador wrote: “Oopsie . . . Too late 😂😂.”

A filing submitted by Defendants on Sunday afternoon failed to dispel any concerns that they had flouted the Court’s injunction. So the Court set a hearing for Monday, March 17, to determine what had transpired over the weekend. The Court expected that at the hearing, Defendants might explain that, despite appearances otherwise, none of the people on the first two flights was a member of the Plaintiff class. Or, at worst, Defendants would admit to a grave mistake, explain how it transpired, and detail plans to rectify it.

The United States Government took neither tack. Rather, what followed in the ensuing days was increasing obstructionism on the part of the Government as it refused to answer basic questions about what had happened, questions that were all ultimately in service of resolving one key fact: whether members of the Plaintiff class — that is, noncitizens removable solely on the basis of the Proclamation — were transferred out of U.S. custody after this Court’s injunction preventing their deportation.

During the hearing, the government refused to provide any details about the flights, stating national security and state secrets concerns. The judge was unconvinced.

…the Government maintained that it could not share any details about the flights even privately with the Court despite the fact that, the previous day, Defendants had retweeted a three-minute video that portrayed a host of operational details. In high definition, the video displayed the planes and the runway where they parked; how migrants were restrained and transported; the faces and uniforms of many detainees, guards, and other officials; where the vehicles apparently entered CECOT; and the inside of the prison.

As we’ve discussed before here on The Breakdown and on the Daily Beans Podcast, as well as the Unjustified podcast with Steve Vladeck - it’s a little hard to claim super secret operational details can’t be disclosed when you yourself are disclosing them on the internet in high definition.

Next, the judge explains the use of criminal contempt.

That statutory authority is now codified in 18 U.S.C. § 401, which provides that any “court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, . . . [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.” For a contemnor to be convicted of criminal contempt under § 401(3), it must be shown beyond a reasonable doubt: (1) that the court order was “clear and reasonably specific”; (2) “that the defendant violated the order”; and (3) “that the violation was willful.”

And he wraps up with next steps. You may have heard me mention in multiple media venues that before anyone is sent to jail for contempt, the administration will likely be given a chance to purge or cure the contempt. Here’s what the judge has to say:

So now what? The Court last details the next steps that these proceedings may take. First, before initiating any criminal-contempt proceedings, courts typically allow the contumacious party an opportunity to purge its contempt — that is, to remedy its violation by voluntarily obeying the court order. The most obvious way for Defendants to do so here is by asserting custody of the individuals who were removed in violation of the Court’s classwide TRO so that they might avail themselves of their right to challenge their removability through a habeas proceeding. Per the terms of the TRO, the Government would not need to release any of those individuals, nor would it need to transport them back to the homeland. The Court will also give Defendants an opportunity to propose other methods of coming into compliance, which the Court will evaluate.

I seriously doubt the Trump regime would agree to cure their contempt because that would be akin to admitting wrongdoing. So what happens if they refuse?

In the event that Defendants do not choose to purge their contempt, the Court will proceed to identify the individual(s) responsible for the contumacious conduct by determining whose “specific act or omission” caused the noncompliance. At the suggestion of the Government in the last hearing, the Court will begin by requiring declarations. Should those be unsatisfactory, the Court will proceed either to hearings with live witness testimony under oath or to depositions conducted by Plaintiffs. The next step would be for the Court, pursuant to the Federal Rules of Criminal Procedure, to “request that the contempt be prosecuted by an attorney for the government.”

You’ll recall a while back when it was suggested that in the Eric Adams case, the court could appoint a special prosecutor to continue with the prosecution of Eric Adams if the DoJ refused to do so. I had pointed out that remedy isn’t available unless there are contempt proceedings, and even then, only in very specific circumstances. I look forward to what Steve Vladeck has to say on that issue as he has practical experience with court-appointed special prosecutors in contempt cases.

You can read Judge Boasberg’s full opinion here.

~AG

(REUTERS)