Jeb Boasberg's "Criminal Contempt" Finding Makes Mockery of Separation of Powers

After setting the contempt trap, Judge James Boasberg today snapped the trap shut with a wild 46-page opinion accusing Trump officials of "willful disregard" for his now vacated court orders.

Jeb Boasberg, the chief judge of the D.C. District Court, sure has a knack for timing.

As the national conversation this week revolves around accusations the Trump administration is defying court orders by refusing to return an illegal El Salvadoran, er “Maryland father,” back to the U.S., Boasberg swooped in Wednesday afternoon with a lengthy opinion accusing the administration of “criminal contempt” for ignoring a set of orders he issued on March 15. (I first wrote about Boasberg’s contempt trap on March 19.)

In a series of hasty decisions that day, Boasberg, in another instance of fortuitous timing for foes of the Trump administration as I explained here, halted the deportation of illegal Venezuelans covered by the president’s Alien Enemies Act (AEA) proclamation, which Trump had been signed the night before. Boasberg issued two written temporary restraining orders—one prohibiting the deportation of five unnamed illegal Venezuelans represented in the lawsuit filed by the American Civil Liberties Union and another one turning the five plaintiffs into a class action suit protecting anyone in custody subject to the AEA.

And during an emergency hearing held that Saturday evening, Boasberg also issued what he describes as an “oral command” at around 6:45 p.m. to return planes carrying the newly-designated class of illegals. “[Any] plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” Boasberg told the Department of Justice attorney present at the hearing. “However that's accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”

The problem, as Boasberg appears to have known at that time, is that two planes carrying the AEA subjects had already departed and were out of U.S. territory. His “oral command” was impossible to obey or to enforce. (Complicating matters further is Boasberg did not include the “oral command” in his written order published about 40 minutes later.)

The alleged defiance of the two written orders—which were both vacated on April 7 by the Supreme Court after a majority concluded Boasberg’s courtroom was the wrong jurisdiction and the ACLU sought the wrong type of relief—and his “oral command” represent the basis of Boasberg’s contempt allegations. And Boasberg appears prepared to name a court-appointed attorney if the Trump DOJ refuses to bring charges against the yet-unidentified officials he accuses of contempt.

Can the Supreme Court Hold Boasberg in Contempt?

Boasberg’s 46-page opinion reads more like a petulant grudge against people who refused to bow to his sense of superiority rather than a cautious, reasoned judgement during a fraught time of conflict between the judiciary and executive branches of government.

“[The] Court ultimately determines that the Government’s actions on that day demonstrate a willful disregard for its Order, sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt,” Boasberg wrote. “The Court does not reach such a conclusion lightly or hastily; indeed, it has given Defendants ample opportunity to rectify or explain their actions. None of their responses has been satisfactory.”

Boasberg, as he has in other orders and hearings, once again blasted the Trump administration for failing to anticipate what he would decide and preemptively halt the deportation flights before he could act. “From the opening hours of Saturday, the Government’s conduct betrayed a desire to outrun the equitable reach of the Judiciary. Hustling class members to an airport before the Proclamation had even been published and in the face of a suit that sought a TRO was bad enough. The decision to launch planes during the afternoon hearing was even worse. The Government knew as of that morning that the Court would hold a hearing on whether anyone in its custody could, consistent with the law, be removed pursuant to the Act — and yet it nonetheless rushed to load people onto planes and get them airborne. Such conduct suggests an attempt to evade an injunction and deny those aboard the planes the chance to avail themselves of the judicial review that the Government itself later told the Supreme Court is ‘obviously’ available to them.”

In other words: the president and his Cabinet members needed my approval before commencing with authorities strictly under the purview of the executive branch. Wild stuff.

But that wasn’t the extent of Boasberg’s megalomaniacal rant. He said the Trump administration could “purge” or remove their contempt of court by “coming into compliance” with the class wide temporary restraining order that has been vacated by the Supreme Court. “Per the terms of the [nonexistent] 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.”

According to Boasberg, the Supreme Court’s nullification of his orders is irrelevant. “[The] fact that the Supreme Court determined that this Court’s TROs suffered from a venue defect does not affect—let alone moot—the compliance inquiry presently teed up here.”

Something tells me the Supreme Court might have a word or two on that question.

Mike Flynn Redux and a Crisis of Confidence

And what happens if Trump officials do not follow Boasberg’s nonexistent temporary restraining order? He is prepared, as he indicated in a hearing earlier this month, to proceed with more hearings, testimony, and depositions. Should he find sufficient evidence exists to pursue contempt charges and Attorney General Pam Bondi does not comply, Boasberg threatened to “appoint another attorney to prosecute the contempt.”

His authority stems from Rule 42(a)(2) of federal criminal procedure—the same rule cited by Judge Emmet Sullivan, Boasberg’s colleague on the D.C. bench, in attempting to hold Mike Flynn in contempt in 2020 after Trump’s DOJ sought to dismiss his perjury plea.

Boasberg has instructed the DOJ to file its plan to “purge” the contempt by April 23. If the DOJ does not plan to follow Boasberg’s nonexistent temporary restraining order, he ordered the DOJ to file “declaration(s) identifying the individual(s) who, with knowledge of the Court’s classwide Temporary Restraining Order, made the decision not to halt the transfer of class members out of U.S. custody on March 15 and 16, 2025.”

The Trump administration is expected to quickly appeal his order; it is hard to see how the D.C. circuit court upholds Boasberg’s ruling. But the hardcore Democrat who calls January 6 an “insurrection” and attended Trump’s arraignment on federal charges in August 2023 has fulfilled his immediate goal: bolster the prevailing narrative by Democrats and the media that the Trump White House is engaged in what Boasberg wrote is the “willful disobedience of judicial orders.”

Mission accomplished for now.