Judicial pushback against the Trump Administration

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A federal judge said in an order Wednesday that he has found probable cause to hold the Trump administration in contempt over deportation flights that it sent to El Salvador.

U.S. District Judge James Boasberg found "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.”

“The Court does not reach such conclusion lightly or hastily; indeed, it has given Defendants ample opportunity to rectify or explain their actions. None of their responses has been satisfactory,” the judge wrote.

Boasberg said the administration could purge his contempt finding by taking custody of the people it deported despite his order and giving them hearings so they can challenge the allegations against them. The "Government would not need to release any of those individuals, nor would it need to transport them back to the homeland" for that process, the judge wrote.

"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," he wrote, and that person or people would be prosecuted.

In a statement, White House communications director Steven Cheung said, "We plan to seek immediate appellate relief. The President is 100% committed to ensuring that terrorists and criminal illegal migrants are no longer a threat to Americans and their communities across the country."

Boasberg had ordered any planes that were in the air to be turned around during an emergency hearing on Saturday, March 15, shortly after the White House made public that President Donald Trump had signed an executive order invoking the Alien Enemies Act — a rarely used wartime power — in order to deport alleged members of a Venezuelan gang.

Lawyers for the plaintiff in the case said their five clients were not members of the Tren de Aragua gang, and were being sent to a prison in El Salvador without any due process.

The judge then issued his order halting any deportations that were being carried out solely under the authority of the AEA for a two week period while he reviewed the legal issues.

"Despite the Court’s written Order and the oral command spelling out what was required for compliance, the Government did not stop the ongoing removal process," he said, and two planeloads of deportee were taken to a prison in El Salvador that has a history of human rights abuses.

The judge said the way the deportations were carried out appeared designed to "outrun" the judicial system.

"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," Boasberg wrote, saying it suggests an attempt to "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."

Worse, boasts by Defendants intimated that they had defied the Court’s Order deliberately and gleefully," the judge wrote, pointing to a tweet from Secretary of State Marco Rubio the day after the deportations. "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”

The judge also chided the administration for refusing to give him any information about the timing of the flights in the weeks that followed, and said that was a topic he might revisit in any contempt hearing.

The Supreme Court reversed Boasberg's restraining order last week, finding that the Washington-based judge didn't have jurisdiction since the deportees had been being held in Texas.

Boasberg said the fact the ruling was reversed does not mean the government can't be held in contempt.

The high court's determination that his order "suffered from a legal defect" 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," Boasberg wrote.

"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," Boasberg wrote. "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 'he constitution itself.'”

Boasberg said if the administration decides "to purge their contempt, they shall file by April 23, 2025, a declaration explaining the steps they have taken and will take to do so."

If they "opt not to purge their contempt, they shall instead file by April 23, 2025, 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," he wrote.

Skye of Democracy Forward, one of the groups representing the plaintiffs in the case, said Boasberg's ruling "affirms what we have long known: the government’s conduct in this case is unlawful and a threat to people and our constitution."

The judge presiding over the case of a man who was mistakenly deported by the U.S. government to a prison in El Salvador suggested Tuesday that she was weighing contempt proceedings against the Trump administration.

U.S. District Judge Paula Xinis ordered administration officials to turn over evidence of their efforts to help bring Kilmar Abrego Garcia back to the U.S. since she first ordered them to "facilitate" his return, saying the government had not shown her anything of note on that front.

“I’ve gotten nothing,” Xinis said. “I’ve gotten no real response, and no real legal justification for not answering,” she continued, adding that if the administration is not going to answer her questions “then justify why. That’s what we do in this house.”

Attorneys for Abrego Garcia had asked that the administration be found in contempt of court over its inaction. The judge said she wants to review the evidence the administration submits, which is expected to include sworn depositions, before ruling on the matter.

She ordered officials from Immigration and Customs Enforcement, the State Department and the Department of Homeland Security to sit for the depositions, and for the administration to hand over documents by the end of the month to see what steps its taken to comply with her order.

In a written order after the hearing, Xinis said that if the administration does not comply with that part of her order, Abrego Garcia's lawyers "are free to seek separate sanctions on an expedited basis."

Speaking for the administration, Drew Ensign of the Justice Department said during the hearing that the government had complied with the judge's previous directives. He also said that if Abrego Garcia were to show up at a port of entry, we "would facilitate his return" into the U.S. before taking him into custody.

During an Oval Office meeting Monday between President Donald Trump and President Nayib Bukele, the Salvadoran president told a reporter that he wouldn’t send Abrego Garcia back to the U.S., calling the question "preposterous."

None of the U.S. officials present at the meeting publicly asked that he be returned, something the judge pointed to Tuesday when Ensign tried to use the meeting as evidence of the U.S. government's efforts to comply with her earlier order.

Xinis pointed out that a reporter had asked Bukele the question, and that administration officials didn't respond to questions about what steps they'd taken to secure Abrego Garcia's return.

In her written order, the judge questioned why Abrego Garcia was still "inexplicably detained" in prison. While the government has said he's being detained “pursuant to the sovereign, domestic authority of El Salvador,” the "record thus far demonstrates that the United States had paid six-million dollars to house those detainees in custody 'pending the United States’ decision on their long-term disposition.'”

She went on to say that his lawyers could seek answers as to "who authorized his initial placement there and who presently authorizes his continued confinement."

Rina Gandhi, an attorney for Abrego Garcia, said Tuesday's hearing marked "progress."

The Trump administration has been accused of ignoring or flat-out defying recent federal court orders, with two judges now weighing contempt findings against officials.

Although the two cases are on different tracks, there will be further court proceedings in both.

First, as Boasberg wrote in his order, the government has the opportunity to "purge" the contempt finding simply by complying with the original order. In the Venezuelan case, that would mean giving the men sent to El Salvador the chance to argue that they should not have been deported.

In the Abrego Garcia case, Xinis has ordered that officials show what efforts they have made to facilitate his return before she decides what to do next. If Abrego Garcia is returned to the United States during that timeframe that would presumably resolve the issue.

If the government still does not come into compliance, then both judges can seek to take further action.

Criminal contempt, which is what Boasberg is considering, usually requires charges by the Justice Department, which the president oversees, A president can void criminal contempt by issuing a pardon.

But Boasberg said that if the government refuses to prosecute, he would appoint an attorney himself who could carry out that function, as has happened in other cases.

In one recent example, a judge in New York appointed lawyers to prosecute Steven Donziger, an environmental lawyer who was convicted of contempt in 2021 for defying orders related to a lawsuit he spearheaded over oil pollution in Ecuador.

One complication for Boasberg is that in the Donziger case, the private lawyers were still subject to supervision by the U.S. attorney general.

Another option is a process known as civil contempt. That involves a judge issuing an order holding either the government writ large or an officer of the government in contempt. The judge could impose daily fines or even order someone jailed until the contempt is purged. Civil contempt is not pardonable.

Judges are generally reluctant to hold U.S. government litigants in contempt, but they have done so. During the Obama administration, a judge held the Interior Department in contempt for imposing a moratorium in 2011 on offshore oil drilling after the Deepwater Horizon disaster.

In the 1990s and the early 2000s, both Clinton and Bush administration officials were held in contempt during litigation over the federal government’s mismanagement of funds held in trust for Native Americans.

Neither of those cases involved threats of jail — only fines levied against the U.S. government.

Under long-standing precedent, the president cannot be held in contempt because the president is not bound by court injunctions against the federal government.

Is jail an option?
What if a judge decided that jailing an officer of the government would be the only way to enforce a court order?

The option is complicated by the fact that federal contempt orders are enforced by U.S. marshals. The marshals are part of the executive branch, not the judicial branch, but their mission is to both "enforce federal laws and provide support to virtually all elements of the federal justice system."

The president, who oversees the marshals, could order them not to enforce a contempt order against an executive branch official — although that would violate the law.

“For the president to call off the marshals would flagrantly violate the statute charging the marshals to carry out court orders, as well as a norm unbroken since the 1800s that presidents do not defy federal court orders,” wrote Nicholas Parillo, a professor at Yale Law School who reviewed data on thousands of court filings in an extensive 2018 article on contempt.

David Noll, a professor at Rutgers Law School, noted in a recent Democracy Docket article that federal rules appear to allow judges, if needed, to bypass the marshals and hire other parties to enforce their contempt rulings.

The federal rules of civil procedure, Noll added, specify how certain types of “process” — the legal term for orders that command someone to appear in court — are to be served. The rule states that, as a general matter, process “must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose.”

“To be sure, a court that appointed someone other than the marshals to enforce a civil contempt order would be breaking new ground,” Noll wrote.

“Because of the marshals’ long and honorable history of respecting their legal obligation to enforce federal courts orders, the courts have rarely, if ever, had to turn to other parties to have their orders enforced," he said.

Local police and sheriffs could do the job, he added, and "unlike the marshals, these individuals would be responsible to the court alone.”

The Supreme Court factor
Another question is what appeals courts, and ultimately the Supreme Court, would do with a contempt ruling against the Trump administration.

Parillo’s research found that while district court judges are willing to issue contempt findings, sanctions are rarely upheld on appeal.

“There are no opinions of the Supreme Court on the subject," he wrote. "When the courts of appeals hear a potentially relevant case, they usually dispose of it on narrow, case-specific grounds in a deliberate attempt to avoid the bigger and more portentous issues about whether and when judges can use contempt sanctions against the federal government."

In a 1911 ruling, in Gompers v. Buck’s Stove & Range Co., the Supreme Court described the need for courts to be able to enforce their orders through contempt but do so sparingly.

“The power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law,” the opinion says. “Without it, they are mere boards of arbitration, whose judgments and decrees would only be advisory."

The justices warned that without the power of contempt, the authority of the court would be derided.

"If a party can make himself a judge of the validity of orders which have been issued, and by his own disobedience set them aside," the opinion warns, "then are the courts impotent, and what the Constitution now fittingly calls the ‘judicial power of the United States’ would be a mere mockery.”

A federal appeals court on Thursday rejected a bid by the Trump administration to block an order directing it to facilitate the return of a mistakenly deported man, saying it was trying to claim “a right to stash away residents of this country in foreign prisons without the semblance of due process.”

The 4th U.S. Circuit Court of Appeals ruled in the case of Kilmar Abrego Garcia amid accusations that the administration has been giving short shrift to deportees’ due process rights, and after President Donald Trump and Vice President JD Vance have complained those protections are hampering their efforts at mass deportations.

The administration is challenging a judge’s order that it “facilitate” the return of Abrego Garcia, who the Justice Department has acknowledged should not have been sent to a prison in his native El Salvador because of an immigration judge’s 2019 order barring such action.

What due process for Abrego Garcia would look like
The administration did not go through formal procedures, which would involve filing a motion to reopen Abrego Garcia’s deportation case, immigration law experts told NBC News.

“There would be a process. ICE would need to move to reopen his removal case, provide due process, have a hearing,” said Rebekah Niblock, an immigration lawyer at the Catholic Legal Immigration Network.

There would also be litigation over his alleged membership in MS-13.

“That is an issue that a judge would have to rule on and would be litigated heavily,” said Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, a nonprofit advocacy group.

An immigration judge determined Abrego Garcia was a member of the gang in 2019, but the evidence that judge relied was recently questioned by U.S. District Judge Paula Xinis, the federal judge in Maryland presiding over the mistaken deportation case.

Xinis noted that Abrego Garcia has no criminal convictions in the U.S. or El Salvador, and said the evidence meant to support allegations of gang affiliation “consisted of nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York — a place he has never lived.”

Wilkinson, who was nominated to the bench by President Ronald Reagan, pointed to that dispute in his ruling.

“The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order,” he wrote.

Trials would take '100 years'
In posts on social media this week, Trump and Vance have complained that courts giving due process protections to deportees are slowing the administration’s efforts to ramp up deportations.

On Truth Social, Trump criticized court proceedings around immigration, saying it would take “many years of long and tedious trials to fly each and every one of them back home. Where is the JUSTICE here???”

Trump was referring to an order Monday from a federal judge in Massachusetts blocking the administration’s plan to bring an early end to a program allowing hundreds of thousands of immigrants from Cuba, Haiti, Venezuela and Nicaragua to temporarily live and work in the U.S. legally. The judge said the participants had been accepted into the program on a case-by-case basis, and therefore any revocations should be done on a case-by-case basis as well.

“Based on the Court System, that would take approximately 100 years,” Trump complained.

In a series of X posts on Tuesday, Vance suggested the scale of the issue outweighed due process concerns.

“Here’s a useful test: ask the people weeping over the lack of due process what precisely they propose for dealing with Biden’s millions and millions of illegals. And with reasonable resource and administrative judge constraints, does their solution allow us to deport at least a few million people per year?” he wrote in one post.

Limited due process for immigrants
Legal experts say that immigrants who try to enter the U.S. illegally or who have lived in the country without legal status are already at a legal disadvantage and have limited due process rights.

That applies especially to those who are detained at or close to the border, where they can be quickly ejected. While long-term U.S. residents could assert due process rights, that doesn’t mean they will, as often they do not have legal assistance.

That situation has gotten worse as the Trump administration has cut resources for groups that represent refugees, Niblock noted.

“There’s not much help out there,” she said.