On Wednesday, April 17th, the judge overseeing a challenge by four Trump administration deportees to El Salvador issued a 46-page opinion concluding “probable cause exists to find the Government in criminal contempt.” The ruling concerns how the administration and its lawyers reacted to the proceedings surrounding the movement of the prisoners. James E. Boasberg, Chief Judge of the United States District Court for the District of Columbia, is set to start proceedings. What does this mean for President Trump’s immigration overhaul?
We spoke with Liberty Nation News Legal Affairs Editor Scott D. Cosenza to figure out the next steps, and whether Judge Boasberg is acting beyond his remit.
The Art of Contempt
Mark Angelides: Scott, Judge Boasberg seems to be involved in pretty much every challenge against the president in the DC area. I know the judges work on a rotating basis, but some of Trump’s allies have accused him of interjecting himself directly into these cases. Some have even suggested he is aligned against the administration – is there any good reason for this?
Scott D. Cosenza: In a word, no. As his opinion memorandum states, “Around 8:00 a.m., this Court learned that it had drawn the case through the court’s random-assignment system.” This was on Saturday, March 15th. I haven’t heard a single argument from an attorney or other party familiar with case assignments with any credible information that the case assignment system is rigged or compromised.
Mark: Let’s get to the bottom of the issue at hand. Boasberg said that he found “probable cause.” I’ve heard of this in terms of needing it to either get a search warrant, an arrest warrant, or to make an arrest. So, this is usually the result of an investigation, isn’t it? What does it mean in the judicial context?
Scott: Mark, I had to look it up myself, being unfamiliar with this usage. Judge Boasberg explains, referencing 18 U.S.C. § 401 – the federal law defining criminal contempt of court: “The statute does not include a probable-cause requirement,” and “In practice, ‘the vast majority of criminal contempt decisions make no mention of such a requirement.” Yet he says “Some courts, however, have opted to make or require findings of probable cause before initiating criminal contempt proceedings.’” And so, “The Court finds that practice to be a prudent way of affording alleged contemnors the procedural protections associated with other criminal proceedings and so follows it here.”
The judge is really dotting his i’s and crossing his t’s here, making sure any sanction down the line isn’t reversed for lack of such a finding.
Mark: Now let’s talk contempt. First, what does it mean for an administration to be “in contempt” rather than an individual. And has Boasberg already acted as judge and jury in this situation?
Scott: Well, Boasberg hasn’t made any final ruling. The probable cause finding simply means he finds it more likely than not that criminal contempt may have been committed. He made the finding to support what is coming, the initiation of criminal contempt proceedings.
Mark: The United States Supreme Court threw Judge Boasberg’s order out. Given the highest court – essentially his boss – said it was not valid, how is this even a potential charge? If the ruling was improper in the first place, how can administration officials be in trouble for not following it?
Scott: As the judge explains in great detail, and I might add, seemingly right on point with the law and precedent
“One might nonetheless ask how this inquiry into compliance is able to proceed at all given that the Supreme Court vacated the TRO [Temporary Restraining Order] after the events in question. That Court’s later determination that the TRO suffered from a legal defect, however, 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.”
He states: “If a party chooses to disobey the order — rather than wait for it to be reversed through the judicial process — such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order.”
Constitution in Crisis?
Mark: What happens next? What kind of punishment can be meted out? And will the Trump administration have the option to take this to a higher court?
Scott: Judge Boasberg outlined a cascading or perhaps escalating series of steps, ever more invasive, to discover if criminal contempt occurred and who were the administration actors that committed the violation. Basically the first step is the administration can say sorry, and proclaim they are now the custodian of those suing – even if they remain in El Salvador – and promise to bring them back or otherwise act consistent with any new ruling.
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.” Then, “at the suggestion of the Government in the last hearing, the Court will begin by requiring declarations.” (Sworn statements by administration officials) “Should those be unsatisfactory, the Court will proceed either to hearings with live witness testimony under oath or to depositions conducted by Plaintiffs.” Then things really get into the realm of the oft threatened but seldom seen Constitutional Crisis:
“The next step would be for the Court, pursuant to the Federal Rules of Criminal Procedure, to ‘request that the contempt be prosecuted by an attorney for the government.’ And if the Government ‘declines’ or ‘the interest of justice requires,’ the Court will ‘appoint another attorney to prosecute the contempt.’”
Boasberg, Chief Judge of the United States District Court for the District of Columbia, gave the Trump administration until April 23 to respond, to “purge their contempt” and prove they did not violate his order, or to identify those persons in the administration who chose to allow the prisoner transfer, by name.
