Mortimer Boasberg's Contempt Trap

James Boasberg first issued an unattainable order to return planes already in the air deporting Venezuelan terrorists and is now unnecessarily demanding details on the flights.

In one of the final scenes in “Trading Places,” Mortimer Duke, played by Don Ameche, has a temper tantrum on the floor of the New York Mercantile Exchange after being bankrupted in a scheme concocted by Billy Ray Valentine (Eddie Murphy) and Louis Winthorpe III (Dan Akroyd.)

Duke demands the reopening of the exchange after the close of business to attempt to recoup the $390 million his firm lost that day. “We founded this exchange, it’s ours! It belongs to us!” Duke screams as his brother, Randolph, collapses from a heart attack. “I want trading reopened right now! Get those brokers back here! Turn those machines back on!!”

One could argue that fictional temperament turned real life on Saturday when James Boasberg, the Obama-appointed chief judge of the D.C. District Court, demanded the mid-air return of U.S. planes carrying illegal aliens suspected of ties to a dangerous Venezuelan terror organization. Infected with a sense of superiority and entitlement pervasive among his fellow Beltway lifers, Boasberg believes he makes the rules rather than temporary interlopers such as President Trump, his officials, and his voters. The government, Boasberg thinks, “belongs” to him and his bureaucracy-devoted brethren.

That is why Boasberg sprang into action over the St. Patrick’s Day weekend to rescue those illegals subject to President Trump’s invocation of the Alien Enemies Act.

Hello, Air Traffic Control? It’s the DOJ…

The president signed the proclamation on Friday night; the White House posted the document online Saturday afternoon. In a nutshell, the order reiterated that the Trump administration has designated the Venezuelan gang Tren de Aragua (TdA) as a “Foreign Terrorist Organization” backed by the Maduro regime with thousands of suspected gang members here illegally posing a threat to the nation’s security and safety. “I proclaim that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies Act,” the president wrote.

In a ready-to-go lawsuit—the New York Times reported the suit was filed before Trump’s proclamation was announced—the American Civil Liberties Union, which never lifted a finger for a single J6er tormented by the Biden Department of Justice, sought a temporary restraining order (TRO) on behalf of five unnamed Venezuelan terrorists in federal custody and on the brink of being deported. (Another plaintiff, Democracy Forward, has dirty Democratic operative Mark Elias as chairman of its board.)

Boasberg immediately sided with the ACLU, entering a minute order granting the TRO for the five terrorists; he then scheduled a 5pm hearing on Saturday evening.

During the proceeding, Boasberg—before giving the Trump administration an opportunity to reply in writing and offering no basis for doing so—ordered that “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.” He continued to clarify his position. “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.”

TURN ON THOSE MACHINES!

Now, imagine the audacity of an unelected judge demanding the return of airplanes loaded with suspected terrorists in the country illegally while they were already in flight and out of American airspace? Was the DOJ lawyer supposed to use his bat phone to call the pilot flying over Central America at the time and tell him to go back to Texas? Was the president supposed to call? Pam Bondi? Kristy Noem?

“Hi Mr. Pilot Judge Boasberg says you have to come home and bring the terrorists with you.”

The directive on its face is batshit crazy.

Do You Need to Know What They Served On Board, Too?

Boasberg made his demand official by entering a “minute order” on the docket around 7:25 p.m that night. (He also turned the original lawsuit into a class action suit covering any illegal subject to the president’s order.) Shortly afterwards, a third plane departed the U.S..

While the DOJ has both verbally and in court filings informed Boasberg the government complied with his order, Boasberg—pivoting, like so many of his DC judicial colleagues, from acting for years as a rubber stamp for the DOJ to now acting as their biggest critic—is not convinced.

Following a contentious hearing on Monday during which Boasberg repeatedly asserted his authority over the president, the Obama appointee ordered the DOJ to answer a list of questions on two flights that departed before 7:25 p.m on March 15—the time Boasberg posted an order preventing the administration from “removing” illegals subject to the Alien Enemies Act.

Boasberg demanded a sworn statement from the DOJ answering the following:

1) What time did the plane take off from U.S. soil and from where?

2) What time did it leave U.S. airspace?

3) What time did it land in which foreign country (including if it made more than one stop)?

4) What time were individuals subject solely to the Proclamation transferred out of U.S. custody?

5) How many people were aboard solely on the basis of the Proclamation?

Now, clearly that set of questions have nothing to do with what Boasberg calls a “fact finding” mission on the temporary restraining order. It has nothing to do with questions as to the legality of the president issuing the proclamation.

It has everything to do with Boasberg trying to build a contempt case against the DOJ or other Trump administration officials for not attempting to return planes carrying terrorists out of the country.

A Big FU from DOJ

DOJ officials have understandably bristled at furnishing those answers. Citing national security concerns as well as Boasberg’s lack of jurisdiction—none of the five illegals in the lawsuit resided in Washington—and the fact the D.C. appellate court previously determined that the Alien Enemies Act is “unreviewable” by the judiciary, DOJ is fighting to disclose those details even in a closed-door or sealed setting.

In a scathing response filed Wednesday morning, the DOJ confronted Boasberg’s recklessness in the matter:

“What began as a dispute between litigants over the President’s authority to protect the national security and manage the foreign relations of the United States pursuant to both a longstanding Congressional authorization and the President’s core constitutional authorities has devolved into a picayune dispute over the micromanagement of immaterial fact finding. In a series of orders this Court has requested the Government to provide it details about the movements of aircraft outside of the United States and interactions with foreign nations which have no bearing on any legal issue at stake in the case. The underlying premise of these orders, including the most recent one requiring the production of these facts ex parte today at noon, is that the Judicial Branch is superior to the Executive Branch, particularly on non-legal matters involving foreign affairs and national security. The Government disagrees. The two branches are coequal, and the Court’s continued intrusions into the prerogatives of the Executive Branch, especially on a non-legal and factually irrelevant matter, should end.”

For now, Boasberg put a one-day hold on his demand for answers under seal by today. He also promised the sealed answers would not be made public, but those assurances have little weight given his brazen politicking in this matter and in the past. (He attended the August 2023 arraignment of Trump in former Special Counsel Jack Smith’s J6-related indictment of the president.)

But this is veering toward an epic clash. Another hearing in Boasberg’s courtroom is set for Friday afternoon; briefs from both sides in the appeal of Boasberg’s TRO are due by the end of today.

If the DOJ stands its ground on the state secret privilege, Boasberg could take more outlandish action including a threat of contempt of court charges.

Even Mortimer Duke knew when to give up.