Appeals court declines to reinstate order finding ‘probable cause exists’ to hold Trump officials in criminal contempt

By Devan Cole, CNN

(CNN) — A divided federal appeals court sided with the Trump administration on Friday in a case over the president’s use of the Alien Enemies Act in deportation matters — but it did not fully snuff out a lower court judge’s efforts to punish those who ignored previous orders halting the president’s use of the law.

The DC Circuit Court of Appeals on Friday declined to reinstate an order from US District Judge James Boasberg that found “probable cause exists” to hold administration officials in criminal contempt for violating his prior orders to temporarily stop using the law to deport alleged Venezuelan gang members.

The Friday appeals court ruling is the latest blow to Boasberg’s efforts to hold accountable the administration officials who didn’t follow his orders earlier this year.

Nearly three months ago, a three-judge panel of the appeals court wiped away Boasberg’s contempt ruling from April. Now, the entire appeals court has decided to keep that ruling intact.

But the court’s decision does not fully tie Boasberg’s hands. Because of the way the appeals court ruled this summer – and the court’s decision on Friday to not disturb that ruling – Boasberg is able to move forward with his fact-finding inquiry around the officials involved in the matter, and several members of the court went out of their way to make that point clear Friday.

“The district court remains free to require the government to identify the decision makers who directed the potentially contemptuous actions and to carefully consider next steps,” three appeals court judges wrote in a statement respecting the court’s decision.

Lee Gelernt, an American Civil Liberties Union attorney representing the migrants at the center of the case, said the court’s latest ruling “allows us to go back before Judge Boasberg and present all of the new evidence from the whistleblower that the government deliberately violated the court’s order not to hand over the Venezuelan men to El Salvador.”

Earlier this year, an ex-Justice Department lawyer alleged in a whistleblower complaint that a then-top DOJ official told his colleagues in March that the administration intended to ignore court orders as part of the government’s aggressive deportation effort.

In court proceedings this summer, Boasberg, an appointee of former President Barack Obama, raised the whistleblower’s claims, saying he would be interested in scrutinizing them should any contempt proceedings before him start back up.

Three judges at the DC Circuit – all of whom were appointed by Democratic presidents – dissented from the court’s decision on Friday.

In a stinging dissent penned by appeals court Judge Florence Pan, the appointee of former President Joe Biden skewered the Trump administration’s “meritless appeal” of Boasberg’s ruling from April and her colleagues’ earlier decision to scramble the judge’s plans.

“Our constitutional system was functioning as designed until a panel of this court improvidently intervened,” Pan wrote. “The district court was called upon to check an allegedly unlawful policy implemented by the Executive Branch. When the government apparently defied a court order, the district court properly investigated. In merely seeking information about the government’s apparent contempt of court, the district court did not violate any nondiscretionary duty nor clearly abuse its discretion.”

Boasberg, she said, “did nothing wrong.”

Notably, Pan also pointed to comments from President Donald Trump earlier this year that were critical of Boasberg as the case was unfolding. Trump called for the judge’s impeachment, prompting a rare rebuke from Chief Justice John Roberts.

“We should not leave in place a ruling that says that the district court erred when it did not,” she wrote. “We live in a world in which judges face threats and harassment because of their rulings and have been called ‘rogue’ by government officials who disagree with them. And we cannot overlook that, in response to this very case, the President of the United States called for the district judge’s impeachment.”

She continued: “The district court performed its constitutional duty with unwavering integrity and courage, in the face of undue public criticism from the most powerful official in our nation.”

In the case before Boasberg, the judge had ordered the administration in mid-March to turn around planes carrying migrants being deported to a notorious prison in El Salvador under the Alien Enemies Act.

The flights continued, and the migrants were held at the prison for several months before being released this summer as part of a prisoner swap with Venezuela.

“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 in a 46-page ruling detailing his decision in April.

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