Administration lawyers urged a federal appeals court to halt a lower court’s contempt proceedings against the government, arguing that Chief District Judge James Boasberg’s continued interference in last month’s deportations to El Salvador has created a “needless constitutional confrontation.”
Justice Department attorney Drew Ensign said Boasberg is undermining the president’s foreign policy authority by ordering the government to return hundreds of Venezuelan gang suspects or face criminal charges, the Washington Times reported on Friday.
Ensign also argued that a contempt finding is unwarranted because Boasberg’s original order was so vague that the parties are still disputing its meaning more than a month later.
“The district court’s criminal contempt order invites needless constitutional confrontation,” Ensign argued in a brief Friday to the Circuit Court of Appeals for the District of Columbia.
Boasberg is presiding over the first case stemming from President Donald Trump’s invocation of the Alien Enemies Act last month to deport suspected Tren de Aragua gang members to El Salvador, where the U.S. is funding their detention.
The judge incredulously ordered planes carrying the migrants to turn around and grounded any flights that had not yet taken off.
At the time of the order, two flights were already airborne and outside U.S. airspace, and those flights continued. A third flight was also allowed to depart, with officials maintaining that those individuals were deported under standard immigration law, not the 1798 Alien Enemies Act at the center of the lawsuit.
Ensign stated that it was unclear whether the judge’s instructions referred to physical removal from U.S. territory or to complete legal removal from U.S. custody.
“Criminal contempt proceedings cannot be predicated on an order so unclear that, weeks later, parties and the court are parsing a hearing transcript to divine its true meaning — and where the executive branch, which is constitutionally charged with the prosecutorial power, believes that no crime was committed at all,” Ensign further argued, the Times reported.
Although the Supreme Court has stripped Boasberg of jurisdiction in the case, he is continuing to pursue it, arguing that he must investigate what occurred while he still had authority.
The judge has said he has found “probable cause” to hold someone in the government in contempt.
Boasberg has asked the government to propose ways to “purge” the contempt, suggesting as one option giving the deportees a forum to argue for reversing their deportations, though he said he is open to other ideas.
If no resolution is reached, he said he will press charges, and if the Justice Department declines to prosecute, he will appoint a special prosecutor to handle the case, the Times noted.
The D.C. appeals court has paused Boasberg’s case while it reviews the government’s appeal.
The American Civil Liberties Union, representing the Venezuelans who sued to block their deportations, has urged the appeals court to stay out of the matter for now, arguing that a formal contempt proceeding has not yet begun, the Times noted.
Earlier this week, Attorney General Pam Bondi was critical of Boasberg after he was incredulously ‘assigned’ another Trump administration case, this one involving the controversial Signal group, arguing that he “cannot be objective,” and adding that “many judges need to be removed.”
Bondi said Boasberg getting the case, in which Defense Secretary Pete Hegseth, Vice President Vance, and other officials discussed a military strike on Houthi rebels in Yemen, was a “wild coincidence against Donald Trump and our administration.”
“He shouldn’t be on any of these cases. He cannot be objective. He’s made that crystal clear,” Bondi said.
Boasberg is now overseeing four lawsuits involving the Trump administration. He was allegedly given each case at random.
