A federal judge said Thursday there’s a “fair likelihood” that the Trump administration violated his order to turn around two planes carrying alleged Venezuelan gang members, and suggested he could move to hold the government in contempt of court.
D.C. Chief District Judge James Boasberg, who blocked the deportations of alleged Tren de Aragua gang members under the Alien Enemies Act of 1798 last month, said it was possible the government “acted in bad faith” by not rerouting the planes to the U.S. Instead, the flights continued to El Salvador, where over 200 Venezuelan nationals were transferred to a supermax prison.
Boasberg issued a temporary restraining order that pauses the deportations under the act but still allows the Trump administration to detain alleged Tren de Aragua gang members. Boasberg’s order also does not prevent the government from deporting the alleged gang members or others under other existing immigration laws.
At Thursday’s hearing, Justice Department attorney Drew Ensign argued the government had complied with the court’s order.
Boasberg replied, “There is a fair likelihood that that is not correct.” He then asked Ensign who he told about the court’s order to turn the planes around and which Trump administration official ordered the planes to continue on their way to El Salvador.
Ensign named two Department of Homeland Security officials and one State Department official as his points of contact after the judge’s decision but said he did not know who directed the planes to continue their flights.
“I’m certainly interested in finding that out,” Boasberg said, adding he’s likely to move forward with contempt proceedings.
Boasberg also criticized the Trump administration for continuing its mass deportations of hundreds of alleged gang members under the Alien Enemies Act hours after Boasberg scheduled his March 15 hearing about pausing the flights and hours before the president’s invocation of the act became public.
“Why wouldn’t the prudent thing be to say, ‘let’s slow down here, see what the judge says,'” Boasberg asked. “‘And if he doesn’t enjoin it we can go ahead, but better to be safe.'”
In a court filing last week, the Justice Department argued that it did not violate Boasberg’s verbal order because the migrants had already been removed from the U.S., and the two planes were outside of U.S. airspace at the time the order was filed on the case’s legal docket. Boasberg’s order to turn the planes around issued from the bench on March 15 but was not included in his full temporary restraining order blocking further deportations under the Alien Enemies Act.
Justice Department attorneys have also argued that because Boasberg did not put his order demanding the planes to return to the U.S. in writing, the government was not bound by it, and even if the order had been written, the president had the authority to keep the flights en route to their final destination.
The government has refused to disclose other operational details about the flights to Boasberg, invoking the “state secrets privilege,” but the judge took issue with the government’s arguments on that front, too. In court filings, the government argued that Boasberg’s demands for more details about the flights from the U.S. to El Salvador “represent grave usurpations of the President’s powers under the Alien Enemies Act and his inherent Article II powers.”
After brief questioning on whether the information the government has not handed over was classified, Ensign said that to his knowledge, it was not, prompting Boasberg to say he was “struggling” to find a legal reason that the state secrets privilege could be invoked for unclassified information.
Boasberg scheduled another hearing in the case for April 8 to further discuss the government’s argument on its invocation of the privilege.
As a result of the standoff between the White House and Boasberg, President Trump has called for the judge’s impeachment, prompting a rare statement from Supreme Court Chief Justice John Roberts defending judicial authority.
Last week, the Trump administration asked the Supreme Court to lift lower court orders blocking deportations of alleged Venezuelan gang members under the Alien Enemies Act.
