President Donald Trump departs after signing an executive order at an event to announce new tariffs in the Rose Garden of the White House, Wednesday, April 2, 2025, in Washington (AP Photo/Evan Vucci).
The Trump administration is pushing back against a federal judge who this week moved to hold government officials in criminal contempt for defying his order to turn around multiple flights carrying Venezuelan migrants who were being deported without due process through the president’s unprecedented use of the Alien Enemies Act of 1798 (AEA).
The Justice Department on Thursday asked the U.S. Circuit Court of Appeals in Washington, D.C., to stay a lower court order issued by U.S. District Judge James Boasberg which the administration says requires it to pursue “two alternative but equally unconstitutional avenues to address supposed violations of a now-vacated [temporary restraining order].”
Boasberg on Wednesday said he had determined that the federal government demonstrated a “willful disregard” for his order, which was “sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt.”
“Either Defendants must aid the court in its efforts to effectuate a contempt prosecution — a step that unconstitutionally commandeers the President’s exclusive and preclusive prosecutorial powers,” the administration wrote in the 23-page filing. “Or, the Defendants may cure contempt by ‘assert[ing] custody’ of individuals who are in the custody of El Salvador — a step that unconstitutionally compels the Executive Branch to persuade or force a foreign sovereign to accede to the court’s demands. Those separation-of-powers violations manifestly warrant this Court’s immediate intervention.”
The administration asserts that the district court’s order effectively functions like an injunction, making it appealable. The DOJ is asking the appellate court for immediate review of the Boasberg’s directive, which it claims inflicts immediate and irreparable harm by subjecting the executive branch to “actions the district court cannot constitutionally require.” An immediate stay is required, the government says, to “prevent further encroachments on the separation of powers.”
Boasberg on March 15, held an emergency hearing in which he granted a temporary restraining order (TRO) barring the administration from deporting individuals under the AEA in a lawsuit brought by five Venezuelan migrants accused of being members of the Tren de Aragua (TdA) gang. During the proceedings, the judge also issued an oral bench ruling ordering the government to turn around any planes containing Venezuelan migrants that were already in the air and return them to the U.S. — an order that was infamously ignored.
Boasberg said that at the time he issued his oral order, the Trump administration had already loaded more than 100 migrants onto planes so they could be “spirited out of the United States by the Government before they could vindicate their due-process rights by contesting their removability in a federal court, as the law requires.”
Hearings and several “intemperate and disrespectful” court filings in the high-profile case followed, each growing increasingly contentious as the litigation unfolded. However, earlier this month the U.S. Supreme Court ruled that the case — which was brought in Washington, D.C., as a class-action lawsuit under the Administrative Procedures Act — had to have been filed as a habeas corpus case in Texas, the district where the plaintiffs were being physically detained. Habeas petitions involve detainees challenging the legality of their custody and typically seeking to be released.
Despite the justices vacating Boasberg’s TROs over the “legal defect,” the judge said that the high court’s ruling “does not excuse the government’s violation.”
The government claimed that because the flights had already left U.S. airspace at the time of Boasberg’s order, they were outside of the court’s jurisdiction. Administration officials also asserted that they did not have to follow Boasberg’s oral order to turn the planes around because he did not memorialize the directive in his subsequent written order. In Thursday’s filing, the government continued to claim there were no grounds for contempt because no one ignored Boasberg’s order.
“[T]he district court is putting the Executive Branch to these unconstitutional choices to cure a nonexistent case of criminal contempt. Defendants fully complied with the TROs the district court issued, and certainly did not flout any clear, unambiguous command,” the filing states.
According to the DOJ, the executive branch “undisputedly stopped removing” migrants under the AEA in accordance with Boasberg’s order, placing particular emphasis on its definition of the word “remove.”
“The district court now reasons that ‘remove’ meant legal removal (i.e., transferring custody) not physical removal (i.e., moving from U.S. territory),” the filing states. “That is legally wrong — but even the court recognized the meaning of ‘remove’ was at least ambiguous, and contempt cannot lie based on a supposedly wrong reading of a facially ambiguous order.”
The administration also argued that should it be held in criminal contempt, it cannot be compelled to prosecute its own officials “in contravention of obvious separation of powers principles that prohibit the Judiciary from turning the Executive Branch’s powers of prosecution against itself.”
“[T]he the district court’s contempt order initiates further constitutional collision. The court instructed the government to investigate and identify senior officials responsible for decision-making with respect to the AEA removals — then prosecute them for purportedly disobeying the court’s TRO,” the filing states. “Recognizing that the Attorney General is unlikely to prosecute a criminal referral, the court indicated its intent to appoint a private attorney to prosecute the criminal contempt charges. That entire process egregiously intrudes on the Executive Branch’s exclusive prosecutorial powers.”
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