Judge reopens contempt investigation against the Trump administration

Two planes carrying Venezuelan migrants out of the United States were in the air on March 15 when a federal judge in Washington ordered President Donald Trump's government to have them return. Instead of returning, the planes landed in El Salvador hours later, unleashing an extraordinary power struggle between the judicial and executive branches of the US government over what happened and why the judge's order was not executed. That fight entered a critical phase on Friday, when the federal district judge, James Boasberg, restarted an investigation to determine whether the Republican government deliberately ignored his instruction, allowing the planes to continue towards El Salvador. The judge previously concluded that this was the case and threatened to prosecute for contempt the official or officials responsible. The government has denied any violation. But an appeals court overturned Boasberg's decision. The contempt investigation seemed extinguished until, in another turn, a larger panel of judges from the same appeals court ruled on November 14 that the investigation could continue.

Here's a look at what makes this case unusual and what might happen now:

Criminal contempt investigations like Boasberg's are extremely unusual

They are a last resort, former federal judges Jeremy Fogel and Liam O'Grady told The Associated Press in an interview conducted on Monday via Zoom. "The judge has to believe that a line has been crossed that cannot be overlooked," said Fogel, who spent 20 years in the courtroom in Northern California before retiring in 2018. Fogel said that the issues raised by Boasberg's contempt investigation, that is, whether the migrants were deprived of their due process rights and whether the court's authority was disobeyed, meet that standard. "Regardless of what actually happened, I think, for him, it would be very difficult to just let it go," the judge said. O’Grady, who served for 16 years in Alexandria, Virginia, just outside of Washington, praised Boasberg for his efforts to determine the facts. "He's making sure his record is absolutely clear," O'Grady said.

Boasberg wants to start with written statements

On Friday, the judge ordered the administration to present, before December 5, statements from all officials involved in the decision not to return the flights to the United States. He noted that he will then decide whether to seek the participation of witnesses. The statements must detail the roles of the officials in the decision, the judge said in the brief order. The Justice Department lawyers had urged him to drop the investigation, but Boasberg said he must determine whether Homeland Security Secretary Kristi Noem, or anyone else, "should be mentioned for possible contempt prosecution." "In other words, the Court must decide whether: (1) the injunction was 'clear and reasonably specific'; (2) 'the defendant violated the order'; and (3) 'the violation was intentional,'" he wrote. On Tuesday, in a court document, Justice Department lawyers said that Noem decided that the migrants on board the flights could be transferred to El Salvador after receiving advice from the acting general counsel of the Department of Homeland Security, Joseph Mazzara. Mazzara received legal advice on the planes of Deputy Attorney General Todd Blanche and Principal Associate Deputy Attorney General Emil Bove, according to the document.

The government has defended its decision on the planes

The judge's directive to return the aircraft was made verbally in court but was not included in his written order, government lawyers said Tuesday in the court document. That order prevented the government from removing "from the United States any of the individual plaintiffs for 14 days," but it said nothing about flights in the air. The two planes had already left the territory and airspace of the United States, so the migrants on board had already been "removed" and, therefore, were outside the court order, Justice Department lawyers said in the court document. "Accordingly, the Government maintains that its actions did not violate the Court's order, certainly not with the clarity required for criminal contempt, and further proceedings are neither warranted nor appropriate," they wrote. A judge on the federal appeals court said in August that the government's interpretation of Boasberg's order was plausible. That order "could reasonably have been interpreted" as only prohibiting the government from "removing detainees from United States territory," wrote Gregory Katsas, a judge on the D.C. Circuit Court of Appeals. Katsas was appointed by Trump.

The White House has been hostile to the judges overseeing its power

Trump officials have bristled at judicial oversight and have repeatedly challenged the power of judges to review executive branch policies, particularly on immigration issues. "There is a deliberate effort to push the boundaries and try to reduce the authority of the trial courts," said David Noll, a Rutgers Law School professor who writes about the intersection of law and politics. Noll said he expects the Justice Department to fight the investigation from the start, with “many appeals and intimidation” regarding Boasberg exceeding his authority. Trump has already attacked the judge. Following the March 15 ruling, the president ridiculed him, calling him "problematic and an agitator" and demanded his removal. Boasberg was nominated to the court by Democratic President Barack Obama and currently serves as the chief judge of the federal court for the District of Columbia. In July, the Department of Justice filed a misconduct complaint against him, alleging that he told Chief Justice John Roberts and other federal judges in March that the government would trigger a constitutional crisis by disobeying federal court rulings. Boasberg has framed the contempt investigation as an effort to defend the United States Constitution, which, according to him, demands compliance with court orders. Separately, he is considering a request to require the administration to give at least 137 of the migrants, who are now back in Venezuela, the opportunity to challenge their designation as gang members. The judge has accused Trump administration officials of hastily expelling migrants from the United States and said that significant evidence has emerged indicating that many of them were not linked to the Tren de Aragua gang.

Contempt decisions can lead to fines and jail time

But history shows that such punishments are rarely issued or allowed against the government.

In a study of thousands of federal court opinions published in 2018 in the Harvard Law Review, 82 contempt decisions against government officials and agencies were found since the end of World War II. Judges issued or attempted to issue fines in 16 of those cases, but higher courts blocked them in all but three. Time in prison is even more unusual. Judges imprisoned or credibly threatened to imprison a federal agency official in only four of the cases, and higher courts similarly intervened to block the sanction, according to the study by Yale Law School professor Nicholas Parrillo. Noll, the Rutgers law professor, said that if the investigation moves forward, it could influence the public debate over whether the government can legally carry out its policy of mass deportation. "Much of a district court's power comes simply from the ability to bring a topic before the public," he said Tuesday in a phone interview.