As Mattathias Schwartz recently wrote in the New York Times, federal courts increasingly are expressing concern about the litigation conduct of Department of Justice attorneys. For example, as Just Security’s comprehensive tracker demonstrates, courts have become reluctant to apply the “presumption of regularity” to Executive Branch actions, and many judges have often pointedly questioned the reliability and candor of DOJ’s written and oral representations. The result, as reflected in a remarkable letter from 111 former attorneys in the office of the U.S. Attorney for the Northern District of Illinois, is that DOJ is in danger of seriously damaging its historic reputation for integrity, professionalism, and political independence in federal court litigation.
As alarming as many of the more recent examples of DOJ misconduct in federal courts are, the most disturbing such incident occurred quite early in the second Trump administration, in March 2025, when high-level Department officials plotted to disable the federal judiciary from reviewing and enjoining the Government’s unlawful transfer of Venezuelan nationals to the custody of El Salvador in the brutal el Centro de Confinamiento del Terrorismo (CECOT) prison. Most egregiously, two of the most senior officials in the Department—current Acting Attorney General Todd Blanche (who was then the Deputy AG, and is now the President’s nominee to be Attorney General) and Principal Associate Deputy AG Emil Bove (now a judge on the U.S. Court of Appeals for the Third Circuit)—advised Homeland Security officials that DHS could lawfully transfer scores of detained persons to Salvadoran custody, in violation of a temporary restraining order Chief Judge James Boasberg issued on March 15, 2025.
Over the past year or so, Chief Judge Boasberg has been trying to assess who was responsible for the administration’s clear violation of his TRO, whether those violations were willful, and whether any such officials should be tried for criminal contempt of court. On April 14, 2026, however, a 2-1 panel of the U.S. Court of Appeals for the D.C. Circuit granted the administration’s application for a writ of mandamus that would require the district court “to terminate its criminal contempt proceedings.” The plaintiffs in the underlying action have filed a petition asking the D.C. Circuit to rehear the mandamus question en banc.
The primary functions of this article are to remind readers of just how extraordinary and alarming DOJ’s efforts to circumvent Chief Judge Boasberg’s injunction were, and to explain how the majority of the recent D.C. panel went astray with respect to both of the two primary legal issues raised in the mandamus stage of the proceedings.
Before I turn to those matters, however, a few brief words are in order on what the courts might do going forward.
First, although I think it’s fairly clear that some DOJ attorneys, including Blanche and Bove, engaged in contempt of court, I’m far less certain whether Chief Judge Boasberg ought to issue a “notice” that would trigger a criminal trial of one or more of those officials, if the D.C. Circuit were to allow him to engage in further proceedings. As far as I know, federal courts have virtually never imposed criminal contempt sanctions against Executive Branch officials, let alone DOJ attorneys, based upon those officials’ responsibility for violation of court orders outside the courtroom.[1] Perhaps the egregious nature of the administration’s conduct last March, and the fact that one or more high-level DOJ officials were directly responsible, makes this case a worthy candidate for breaking new ground. Alternatively, a case might be made that such misconduct is best addressed by different actors in different venues (e.g., in Congress), or, for instance, by a sharp reprimand from the federal judiciary, rather than in a criminal contempt trial.
Second, if the court of appeals were to withdraw the writ of mandamus and allow Chief Judge Boasberg to move forward, it’s not obvious to me that Boasberg needs to, or should, engage in much, if any, further investigation in order to decide whether to initiate a contempt trial or to issue an opinion describing who was responsible for the violation of his TRO. As I’ll explain in greater detail below, the evidence the judge has already elicited is more than sufficient to determine the crux of what occurred in the Executive Branch in the middle of March 2025. In summary:
i. In an extraordinary deviation from traditional practice, Blanche and Bove (at a minimum) made every effort to keep the court—and the DOJ attorneys litigating the case—in the dark about what the administration was doing with the detainees, so that federal officials could facilitate their transfer to Salvadoran custody before the court could enjoin it.
ii. After the court did issue a TRO on March 15, 2025, to prohibit the transfer (i.e., to ensure the return of the detainees to the United States), Blanche and Bove advised Homeland Security Secretary Kristi Noem, through DHS General Counsel Joseph Mazzara, that she was legally free to order officials to transfer the detainees to El Salvador, notwithstanding the TRO, on the ground that the court’s written, “Minute Order” issued at 7:25 p.m. on March 15, allegedly did not prohibit such transfer, and that the court’s oral injunction, which expressly required the return of the detainees to the United States, either was not legally binding or was superseded by the Minute Order. Noem issued the operative directive based upon Blanche and Bove’s legal advice (which Mazzara conveyed to her and apparently ratified).
iii. That legal advice—reading the TRO not to prohibit transfer of the detainees to Salvadoran custody—was plainly mistaken, and Blanche and Bove must have known that it was. Indeed, it was so obviously wrong that those high-ranking officials chose not to tell the litigating attorneys from the Civil Division of their reading, or that they had advised Noem that she could order the transfer of the detainees, until after the individuals were already in Salvadoran custody—with the extraordinary result that the DOJ litigating attorneys were advising their clients in DHS that such a transfer would be unlawful, and would put administration officials in contempt of court, even as Blanche, Bove, Mazzara and Noem were scheming to give the administration the green light to do precisely that.
Chief Judge Boasberg could write a compelling opinion explaining all of that right now, without any further investigation. Moreover, the evidence demonstrating those facts would also be sufficient to support a notice of criminal contempt to Blanche and Bove—thereby initiating a criminal contempt trial—if Chief Judge Boasberg concluded that such a course of action was appropriate (but see my discussion above, questioning whether a trial would be the best course). (Boasberg might also conclude that the facts would support issuing such a notice to DHS General Counsel Mazzara, but my focus here is on DOJ attorneys.)
Third, although I’ll explain below that there was no basis for the court of appeals to issue the writ of mandamus to cut off Boasberg’s contempt investigation, this article doesn’t address the immediate question pending before the full court of appeals—namely, whether it should reconsider that decision en banc (something that presumably would entail further briefing and oral argument). As to that question, the judges on the court are familiar with many considerations and internal dynamics to which I’m not privy.
That said, no matter how the D.C. Circuit decides to deal with the rehearing petition, or how the court resolves the mandamus question if it grants rehearing, the most important thing the court of appeals can and should do is to make unequivocally clear—or permit Chief Judge Boasberg to do so—that Blanche and Bove’s actions last March were egregious violations of the rule of law and sharp deviations from essential DOJ norms of candor and comity.
It’s bad enough that high-ranking DOJ officials chose to abuse the system as they did in order to undermine the district court’s authority—resulting in the unlawful detention of more than a hundred people in a brutal foreign prison for several months. As Judges Pillard, Wilkins and Garcia wrote earlier in the litigation, the facts of this case “present grave rule-of-law concerns.” What might be equally or even more disheartening, however, is that three judges on the court of appeals have already published opinions that effectively condone that conduct by suggesting it was reasonable for Blanche and Bove to have construed the TRO to allow the transfer of the detainees to the Salvadoran prison, and for those two attorneys to have advised Noem that she could lawfully direct that transfer. According to those judges, not only could Blanche and Bove have reasonably construed the Boasberg TRO as they did (and advised Secretary Noem accordingly), but Judge Boasberg’s “erroneous premise that the TRO [was] sufficiently clear and specific” renders his continuing contempt investigation “at least a clear abuse of discretion” (Rao opinion at p.29); see also id. at 13 (“the government has a clear and indisputable right to termination of this judicial investigation because it is premised on an order that is insufficiently clear and specific to sustain a charge of criminal contempt”).
In fact, as I explain in greater detail below, those high-ranking officials had to have known that their construction of the injunction was implausible, yet they conveyed it anyway in order to undermine a measured and reasonable decree issued by one of the most respected trial judges in the nation—a jurist with a well-deserved, widespread reputation for integrity and scrupulousness. Therefore, Chief Judge Boasberg did not come anywhere close to abusing his discretion by conducting an investigation to determine who, if anyone, willfully violated a court order.
Unfortunately, the April opinions of Judges Rao and Walker, along with a concurring opinion issued last year by Judge Katsas, effectively serve to exonerate, and thus could help to normalize, such aberrant, indefensible behavior within the Department of Justice, and to contribute to the Trump administration’s indefensible campaign to attack the integrity and legitimacy of trial judges. Accordingly, no matter how full court ultimately chooses to handle the petition for rehearing en banc, I hope it manages to find some way to issue (or to permit Chief Judge Boasberg to issue) a compelling account of DOJ’s wrongdoing in order to set the public record straight—a function that’s especially important now, given that the Senate will soon be considering Blanche’s nomination to be Attorney General.
* * *
Part I of this piece is a summary of the operative events in March 2025.
Part II briefly describes the subsequent judicial proceedings concerning contempt of court, including the recent panel decision.
Part III addresses why Chief Judge Boasberg’s TRO unequivocally prohibited what the high-ranking DOJ attorneys advised Secretary Noem she could do, and why the D.C. Circuit panel’s contrary accounts are implausible.
Finally, Part IV addresses a legal misunderstanding that most of the parties and judges in the case have made about the nature of the federal judge’s and DOJ’s respective roles in a criminal contempt investigation of this kind—a mistake that formed the basis of the panel’s alternative rationale for issuing the writ of mandamus.
I.
In order to understand the issues in the mandamus proceedings, a review of the facts and proceedings is in order. Here, then, is a quick summary, focusing on the most egregious of DOJ’s actions in the case:
● Sometime on Friday, March 14, 2025, President Trump signed a proclamation, nominally pursuant to the Alien Enemies Act of 1798 (AEA), which declared that the Venezuelan gang Tren de Aragua (TdA) was perpetrating an invasion or predatory incursion against the territory of the United States “at the direction … of the Maduro regime in Venezuela.” Trump ordered the Attorney General and the Secretary of DHS to remove from the United States all Venezuelan citizens 14 years of age or older who are members of TdA and not U.S. citizens or legal permanent residents. (Because the AEA applies only to foreign nations and governments, the proclamation depended upon Trump’s patently invented “Maduro regime direction” finding, which contradicted the views of virtually every element of the Intelligence Community.)
Such a proclamation has no legal effect—and, in particular, cannot be the basis for detention or removal under the AEA—until it is made “public” and the alleged “alien enemies” then “refuse or neglect to depart” from the United States. 50 U.S.C. § 21. President Trump did not immediately disclose the existence of the proclamation, however, nor did he afford the individuals in question an opportunity to “depart” voluntarily. Nevertheless, late in the day on March 14, and in the very early hours of Saturday, March 15, 2025, Executive Branch actors loaded scores of Venezuelans onto planes bound for El Salvador. As subsequent events would demonstrate, this sequence was designed to facilitate removal of those detainees from the United States immediately after public disclosure of the AEA proclamation, thereby preventing the individuals and their attorneys from challenging the proclamation, or their membership in TdA, in court.
● Attorneys for some of the Venezuelan detainees got wind of the Government’s apparent plan, and at 1:12 a.m. on the 15th they filed a class action complaint and habeas petition in the U.S. District Court for the District of Columbia, in an effort to stop the imminent transfer of the detainees overseas.
● At 9:40 a.m. that Saturday morning, Chief Judge Boasberg issued a TRO, as a “Minute Order” on the case docket, that prohibited the defendants from “remov[ing] any of the individual [i.e., the named] Plaintiffs from the United States.” In response, the Trump administration disembarked those five persons from the planes. Even so, the Government appeared to be moving forward with its plan to fly hundreds of other potential class members to El Salvador—even before the existence of an operative public proclamation by the President creating the (purported) authority to do so. Plaintiffs’ counsel therefore quickly moved for class certification and a TRO to protect all the members of the proposed class. Chief Judge Boasberg scheduled a hearing on those motions for 5:00 p.m. that Saturday afternoon.
● The administration finally made public (and thus made operative) the President’s AEA proclamation just one hour before the TRO hearing. And then, after the TRO hearing began, officials ordered two planes to depart for El Salvador, with a stopover in Honduras—apparently without informing DOJ counsel appearing on their behalf at the hearing that they had done so.
Pause here to consider just how remarkable this course of conduct was—even before the actions that led to the contempt investigation, and wholly apart from the fact that the removal of the detainees was unlawful. As Chief Judge Boasberg later described it:
Hustling class members to an airport before the Proclamation had even been published and in the face of a suit that sought a TRO was bad enough. The decision to launch planes during the afternoon hearing was even worse. The Government knew as of that morning that the Court would hold a hearing on whether anyone in its custody could, consistent with the law, be removed pursuant to the Act — and yet it nonetheless rushed to load people onto planes and get them airborne. Such conduct suggests an attempt to evade an injunction and deny those aboard the planes the chance to avail themselves of the judicial review that the Government itself later told the Supreme Court is “obviously” available to them. See Government Reply in Support of Application at 1, Trump v. J.G.G., No. 24A931 (U.S. Apr. 2, 2025).
Any time before January 20, 2025, it would have been virtually unthinkable that any attorneys in the Department of Justice (or any Executive Branch officials) might even propose such a course of action to covertly circumvent judicial process, let alone permit administration officials to execute it. The deviation from longstanding departmental norms of integrity, candor and comity on March 15 was extraordinary. The worst, however, was yet to come.
● At the 5:00 hearing (transcript here), Chief Judge Boasberg asked DOJ attorney Drew Ensign whether “imminent deportations and removals under this [AEA] proclamation” were planned for the next 24 or 48 hours. Although Ensign was present at a meeting the day before at which Bove had said that one or more planes containing individuals subject to the AEA would be taking off over the weekend, Ensign told the court that he did not know the answer to the question but that “[w]e can certainly investigate that and report that back to you.” Therefore, at 5:22 p.m., Judge Boasberg adjourned the hearing until 6:00 to “let Mr. Ensign do some digging” and report back.
● Three minutes after the hearing was adjourned, at 5:25, the first plane departed from the United States for El Salvador. Twenty minutes later, at 5:45, the second plane departed. The Government took these actions in the middle of a federal court hearing concerning whether such actions should be enjoined because of their likely illegality—apparently without informing their lawyers who were, even then, in the middle of a hearing concerning whether the court should enjoin such actions.
● When the hearing reconvened at 6:00, Ensign told the court that he still lacked knowledge of any operational details—he intimated, in other words, that his clients had refused to tell him what they had done during the recess. (It appears that the Department of Homeland Security finally informed other DOJ attorneys by email of the status of the flights at 6:50, three minutes before the end of the hearing.)
● Chief Judge Boasberg then provisionally certified a class of all persons subject to the Trump proclamation who were in U.S. custody and, at about 6:45 p.m., he declared that “a TRO is appropriate for the class members, and it would be to prevent the removal of the class for 14 days or until further order of the Court.” Boasberg added that “I will issue a minute order memorializing this so you don’t have to race to write it down,” but the judge then also specifically ordered Ensign to “inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States [and] those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.” (Although the transcript reads “not embarking,” it was clear that Boasberg meant “not disembarking.”) The judge subsequently repeated that “I will issue a minute order memorializing all of this.”
● Several DOJ attorneys were watching this hearing via Zoom. At 6:48 p.m., one of them emailed their clients at DHS and other agencies that “the judge specifically ordered us to not remove anyone in the class, and to return anyone in the air.” Sixteen minutes later, he again emailed the agencies that “anyone in the air should be returned, unless they have a title 8 final order,” and at 7:18 PM he once again emailed: “Please confirm asap no one lacking a title 8 final order will be taken off these planes when they land. We need to address this asap to avoid contempt.”
● At 7:25 p.m., i.e., about 40 minutes after he issued the TRO orally, Chief Judge Boasberg entered a written “Minute Order” on the case docket that read, in pertinent part:
As discussed in today’s hearing, the Court ORDERS that: 1) Plaintiffs’ Motion for Class Certification is GRANTED insofar as a class consisting of “All noncitizens in U.S. custody who are subject to the March 15, 2025, Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua’ and its implementation” is provisionally certified; 2) The Government is ENJOINED from removing members of such class (not otherwise subject to removal) pursuant to the Proclamation for 14 days or until further Order of the Court … .
● The Government did not comply with the court order. Instead, the two planes landed in Honduras, remained there briefly, and then continued on to El Salvador, where they landed just after midnight on Sunday, March 16. Salvadoran officials refused to take custody of the women (and one Nicaraguan man) on the planes, and therefore U.S. authorities returned those detainees to the U.S. (thereby demonstrating that it would have been simple for those authorities to comply with the TRO as to all the detainees). The U.S. authorities, however, immediately transferred the rest of the detainees to Salvadoran custody for imprisonment in CECOT, where they remained for four months without access to counsel or information about their fates, and where, reportedly, many of them were subjected to “frequent, intense physical and psychological abuse.” The U.S. officials made this transfer notwithstanding the advice the lead, career DOJ attorney conveyed to their clients at DHS and other agencies that Saturday evening that those detainees had to be returned to the United States in order to “avoid contempt” of the judge’s “specific[] order.” As I explain in the next Part, DHS Secretary Noem directed the officials to do so based upon contradictory legal advice she had received from higher-level DOJ attorneys—Blanche and Bove—unbeknownst to the Civil Division attorneys litigating the case, who were deliberately kept in the dark about the legal advice the Office of the Deputy Attorney General was conveying to Secretary Noem.
● Eventually, hundreds of the detainees at CECOT were sent to Venezuela as part of a prisoner exchange. Apparently more than 100 of those detainees had been removed from the United States and transferred to CECOT pursuant to the President’s AEA proclamation. As far as I know, the U.S. Government has yet to afford any of them the opportunity to dispute the Executive Branch’s allegations that they are TdA members or to challenge the legality of their AEA removal.
II.
On April 7, 2025, the Supreme Court later held (incorrectly, in my view, for whatever that’s worth) that the plaintiffs had to pursue their challenge as a habeas corpus petition and that therefore they had brought their case in the wrong court—it could only be filed in the district in which the detainees were held. Trump v. J.G.G., 604 U.S. 670, 673 (2025). The Court also unanimously confirmed, however, that the transfers of alleged TdA members to Salvadoran custody were unlawful because, at a minimum, such detainees must receive notice “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Id.[2]
Moreover, whether or not the plaintiffs should originally have filed their action in another court, the defendants in the D.D.C. case were obligated to comply with Judge Boasberg’s March 15 TRO until the judge lifted that injunction or the case was dismissed. They did not do so.
Chief Judge Boasberg subsequently set out to ascertain who was responsible for the administration’s violation of his TRO and whether any such officials should be tried for criminal contempt of court. See the November 14, 2025 opinion of Judges Pillard, Wilkins & Garcia at 1-2 (“In the days and weeks that followed, the district court tried to understand what had transpired over that weekend despite the government’s repeated refusals, citing shifting reasons, to answer basic questions about when the flights had taken off and when the plaintiffs were handed over to Salvadoran custody.”).
Early on in that investigatory process, in April 2025, Chief Judge Boasberg issued an opinion in which he concluded that there was “probable cause” that some federal officials had committed contempt of court by violating the TRO and in which he offered the Government an option to “purge” the putative contempt by asserting custody over the removed individuals or proposing other methods of prospective compliance with the TRO. A divided court of appeals panel vacated the district court’s probable cause order, however, and the full court of appeals declined to review that decision en banc. Judge Rao’s decisive opinion in that iteration of the case was based upon the fact that Chief Judge Boasberg had offered the defendants the “purge contempt” conditional option. Thus, as Judges Pillard, Wilkins and Garcia explained, the panel’s order did not “prevent the district court from exercising its contempt authority” and Chief Judge Boasberg remained “free to require the government to identify the decision makers who directed the potentially contemptuous actions and to carefully consider next steps.” Chief Judge Boasberg proceeded to do so.
During the court’s subsequent investigation, then-Secretary of DHS Kristi Noem filed a declaration attesting that she made the decision to continue the transfer of the detainees to Salvadoran custody on March 15, after receiving legal advice from her Acting General Counsel, Joseph Mazzara, who in turn was conveying advice he received from “the senior leadership of the Department of Justice.” Further declarations from then-Deputy Attorney General (now Acting AG) Todd Blanche, then-Principal Associate Deputy Attorney General (now Third Circuit Judge) Emil Bove, and Acting DHS General Counsel Mazzara—as well as DOJ’s explanation to the court the following Monday about why the administration had transferred the detainees to El Salvador—make apparent what happened: Although the DOJ attorneys litigating the case had been advising their DHS colleagues on Saturday evening that a transfer of the detainees to Salvadoran custody would put officials in contempt of court, Blanche and Bove had separately informed Mazzara that such a transfer would not violate the TRO because the detainees had been “removed from the United States” minutes before Boasberg issued the written Minute Order at 7:25. Mazzara apparently agreed with that reading of the Boasberg TRO (see paragraph 1 of his Declaration), and he conveyed that legal advice to Noem, who then acted in reliance upon it.
The Office of the Deputy Attorney General (ODAG) conveyed this legal advice to DHS without even discussing it with the litigators in the Civil Division who had been handling the case before the court and who had been advising their DHS clients that the TRO prohibited a transfer. According to one of the lead litigators on the case, he didn’t learn of ODAG’s contrary legal advice to DHS until around midnight, i.e., just about the time the planes with the detainees were arriving in El Salvador from Honduras. And, even then, that litigator apparently wasn’t told whether the detainees who’d been transported on the basis of the AEA proclamation had yet been transferred to Salvadoran custody: At 8:07 a.m. on Sunday morning, March 16, he continued to “remind[]”his clients in DHS that “injunction compliance” required officials “to not deplane anyone from these planes who is subject to an AEA removal.” Tellingly, however, he added this remarkable, awkward question to his DHS clients: “[T]o the extent conversations on these issues are occurring at a higher level within your leadership and ours, can you please confirm that?” By that time, U.S. officials had transferred the detainees to imprisonment at CECOT.
For the reasons Judge Pillard explained in detail in an earlier opinion in this litigation (see pp. 26-42), which I summarize below, the Blanche/Bove legal advice to DHS (and Mazzara’s confirmation of it) was patently incorrect—a clear mischaracterization of what Chief Judge Boasberg had ordered in the TRO. Accordingly, Boasberg sought further testimony from administration lawyers to try to establish which, if any, of those three attorneys (and/or Noem) willfully violated the TRO, i.e., whether any of them acted “with deliberate or reckless disregard of” what the TRO prohibited. See United States v. Rapone, 131 F.3d 188, 195 (D.C. Cir. 1997); United States v. Young, 107 F.3d 903, 909 (D.C. Cir. 1997); In re Holloway, 995 F.2d 1080, 1082 (D.C. Cir. 1993).
On April 14, 2026, however, a panel of the U.S. Court of Appeals for the D.C. Circuit voted 2-1 to stop Boasberg’s inquiry in its tracks: The panel issued a writ of mandamus that requires the district court “to terminate its criminal contempt proceedings” altogether. Judges Rao and Walker were in the majority. As described below, Judge Walker wrote a separate opinion explicating his view that the 7:25 Minute Order had “superseded” the oral TRO in a manner that eliminated the requirement that the detainees be returned to the United States. Judge Childs dissented.
The plaintiffs in the underlying action have now filed a petition asking the D.C. Circuit to review the mandamus petition en banc.[3] DOJ has filed a brief opposing rehearing.
III.
The panel majority—Judges Rao and Walker—relied upon two principal arguments for granting the Government’s requested writ of mandamus to halt Chief Judge Boasberg’s contempt investigation. First, they concluded that the written TRO in Chief Judge Boasberg’s 7:25 p.m. “Minute Order” “lack[ed] the clarity to support criminal contempt based on the transfer of [the detainees to Salvadoran] custody” (majority op. at 3), regardless of what the attorneys in question might have understood about the injunction or whether they recklessly disregarded its legal effect.
With respect to this issue, Judge Pillard covered most of the pertinent in an earlier appeal in this case (see pp. 26-42). As she explained in great detail there, the TRO clearly prohibited transfer of the detainees to Salvadoran custody, not merely directing the planes to cross the U.S. border in the air. I encourage readers to review what Judge Pillard wrote. See also pages 66-76 of Judge Childs’ dissent in April.
It is, however, worth examining more closely one important aspect of the recent panel opinions, because it affects the nature and scope of the dispute among the judges on the court of appeals:
At least two of the judges on the panel—Judge Childs (who dissented) and Judge Walker—actually agreed that Chief Judge Boasberg’s oral injunction, issued at 6:45 p.m. on Saturday, March 15, was binding on the defendant Executive officials when Boasberg announced it in court, and that it required the defendants to return the detainees to the United States (and therefore not to “[dis]embark” them in El Salvador). See Walker opinion at 5 n.20 (“I agree with the dissent that the oral order required compliance before the written order was issued.”); see also id. at 1 (“In an oral order, the district court limited what the Government could do with certain aliens covered by a recent presidential proclamation. Some of the covered individuals were inside the United States, and others were on planes, in flight, outside U.S. air space.”) (emphasis added); id. at 4 (recounting Chief Judge Boasberg’s admonition to the DOJ lawyer that “you shall inform your clients … immediately … that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not [dis]embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”); id. at 6 (explaining that the defendants did not violate the oral order while it was in effect between 6:45 p.m. and 7:25 p.m. on March 15 because the Government did “‘not [dis]embark[] anyone on the plane[s]” during that period).
Nevertheless, Judge Walker concluded that the Executive officials responsible for the transfer could not possibly have willfully violated a court order. He based that conclusion on his view that the written “Minute Order” Judge Boasberg issued 40 minutes later, at 7:25 p.m., superseded the oral TRO and that the Minute Order (unlike the oral order) allegedly did not protect detainees who already had been flown outside of U.S. airspace. See Walker op. at 1, 5, 6, 8, 9 (repeatedly emphasizing that the written order superseded the oral order and thereby retracted the scope of the TRO).
Notably, Judge Walker did not contend that the terms of the written TRO, in and of themselves, were necessarily limited to detainees who remained in the United States. In particular, Judge Walker did not assert that the verb “removing” in the written order could only be read to mean “removing from U.S. territory”—after all, Chief Judge Boasberg used that same verb in the oral injunction, and Judge Walker acknowledged that that earlier order prohibited the Government from “disembarking” the detainees to Salvadoran custody after they already had left U.S. airspace. Thus, Judge Walker’s conclusion that the 7:25 “Minute Order” was narrower than, and superseded, the 6:45 oral TRO, was based not merely on the inclusion of the word “removing” in the Minute Order, but instead on a combination of two other things: (i) the fact that, when he issued the oral order, Chief Judge Boasberg said to counsel that “I will issue a minute order memorializing this so you don’t have to race to write it down”; and (ii) the fact that the subsequent “memorialization” order, unlike the oral order, did not specifically mention a requirement that the defendants had to return to the U.S. those detainees who had already left U.S. airspace. See id. at 4 (“the district court told the Government that a forthcoming written minute order, rather than any extemporaneous remarks, would tell everyone everything they needed to know about what they were required to do”); id. at 5 (“Unlike the oral order, the written order made no mention of returning anyone to the United States or keeping custody over anyone already removed from the country. In fact, it did not say anything about anyone already removed. It enjoined the Government only ‘from removing’ people who had not already been removed.”).
On Judge Walker’s view, then, it was fair for the officials in question to understand Chief Judge Boasberg to have eliminated his prohibition on transferring the detainees to Salvadoran custody sometime between 6:45 and 7:25. DOJ argues likewise in its opposition to en banc reconsideration (p.11): “[T]he key point is that the written order … superseded and used narrower language.”
That simply can’t be right, however. No attorney—let alone sophisticated, high-level attorneys from the Department of Justice—could possibly have considered the two versions of the TRO, issued less than one hour apart, and have reasonably concluded that the latter superseded, and dramatically limited, the effect of the former.
For one thing, such a supersession/limitation would have defeated the purpose of what everyone understood Chief Judge Boasberg to have been doing—namely, acting swiftly to certify a class that included the detainees who were already in the air and to issue a TRO that would preserve the court’s jurisdiction to protect all those class members, something that arguably depended upon continued U.S. custody over them. See Judge Pillard’s opinion at 26-28; see also id. at 38 (“The court repeatedly emphasized its unambiguous objective not to lose jurisdiction even as it offered flexibility as to the means available to defendants to comply. …. The court’s focus throughout was that defendants keep the detainees in U.S. custody, return them to the United States, and not act to defeat the court’s jurisdiction while the case was being adjudicated.”). For Judge Boasberg to have altered the TRO in the way Judge Walker and DOJ now insist he did would have been inexplicable and self-defeating.
Moreover, that reading would mean that Chief Judge Boasberg used the verb “removing” to mean two very different things, with two profoundly different impacts, in two orders issued within one hour of one another—without uttering a word to the parties to explain or suggest he was doing so.
Of particular importance, and as Judge Childs stressed in her dissent (p.70), in the very first line of his written “Minute Order,” Chief Judge Boasberg expressly indicated that it was not altering the effect of the just-issued oral directive: “As discussed in today’s hearing, the Court ORDERS … .” As Judge Childs noted, Chief Judge Boasberg thus “incorporated by reference the hearing discussion about the details of the injunction, the class, and the basis for the new briefing schedule,” and there’s nothing in the text of the Minute Order suggesting “that the district court was walking back its previous oral order, rather [than] carrying it forward by incorporating its earlier statements.” See also the Pillard opinion at 31.
For all these reasons, Judge Walker’s (and DOJ’s) “supersession” understanding of the Minute Order—which appears to have been the same reading that Blanche and Bove used as the basis of their advice to Noem that DHS could lawfully transfer the detainees—“is entirely implausible as a reading of the district court’s TRO.” Pillard dissent at 34.[4] “Defendants cannot explain how any reasonable person in defendants’ position might have concluded on the evening of March 15 that the district court in fact changed its mind as to the scope of the TRO it announced from the bench, and so entered a Minute Order that it intended as a new and different TRO. To establish as much requires more than a theory of how the Minute Order might be read to conflict with the TRO as announced. It demands that we find it plausible that defendants could have thought the district court actually did change its mind in the thirty-minute interval between the hearing and issuing the Minute Order but said nothing to alert defendants of that change.” Id. at 35-36. That account is “at war” with the record, the text of the Minute Order, and “common sense.” Id. at 36.
At the very least, if high-ranking DOJ attorneys such as Blanche and Bove sincerely believed the Minute Order might fairly be construed to have effected such a sea change in the nature of the TRO, the proper course of action would have been (i) to discuss that possible reading with the Civil Division attorneys who were litigating the case; and, (ii) if any ambiguity remained after such discussions, to ask Chief Judge Boasberg to clarify exactly what the order prohibited. (As Boasberg noted in an earlier opinion in the case, DOJ counsel had been in regular email contact with his chambers throughout that Saturday, and thus knew they “would get a rapid reply to any question [they] might have about the injunction.”)
I’m confident that’s how any DOJ attorney not serving in the Trump administration would have acted, in the unlikely event they had doubts about whether Boasberg had superseded and effectively eviscerated his oral injunction. Yet Blanche and Bove did neither thing. Instead, they advised Secretary Noem that she could act in accordance with their implausible reading of the Minute Order. And they did so without even discussing the matter with the Civil Division attorneys working on the case, even though those attorneys had already been advising DHS that the TRO prohibited officials from disembarking the detainees in El Salvador.
It’s not difficult to understand why Blanche and Bove acted as they did and deviated so egregiously from ordinary order. They most likely knew full well how their litigators would react to their implausible reading of the Minute Order, and how Chief Judge Boasberg would have responded to a request for clarification. Indeed, the most charitable scenario is that Blanche and Bove concluded that Chief Judge Boasberg had inadvertently screwed up by not expressly repeating in the Minute Order his oral admonition that the defendants had to return the detainees to the United States, and they chose to exploit that ministerial gap, tantamount to a scrivener’s error, by acting in a way that undermined what everyone understood the court’s objective to be. Accordingly, this is hardly a case in which attorneys should be immune from the possibility of contempt sanctions because they advised clients in good faith that they could disregard an injunction (contrast, e.g., Maness v. Meyers, 419 U.S. 449, 455 (1975)). Moreover, I’d hope that even those judges on the court of appeals who believe a criminal contempt sanction would be inappropriate or unavailable would agree—and be willing to declare, along with the rest of the court—that Blanche and Bove’s conduct was deeply inappropriate and corrosive of DOJ’s historical norms and its relationship with the federal judiciary.
IV.
Judges Rao and Walker also relied upon a fallback argument. According to the panel majority opinion (p.32), any further investigation by Chief Judge Boasberg must cease because it “is irrelevant to the only decision before the district court, that is, whether to make a referral [to the Department of Justice] for criminal contempt.” By continuing to probe into whether any officials willfully violated the TRO, the majority reasoned (id. at 30), “the district court is encroaching on the prosecutorial role” and Judge Boasberg’s “inquest pushes the boundaries of what is permissible under [Federal Rule of Criminal Procedure] 42, which requires that contempt committed outside the court’s presence ‘be prosecuted by an attorney for the government.’”
DOJ places a good deal of weight on this alternative argument in its opposition to the request for en banc rehearing. Chief Judge Boasberg’s continuing inquiry, argues DOJ, would not “serv[e] any real purpose” (p.3) because “no further information was necessary for the district court to make a referral if it still believed one to be warranted” (p.1); see also id. at 3 (that inquiry was “was irrelevant to a potential referral”); id. at 13 (“there is no need to probe scienter simply to make a referral”). DOJ even goes so far as to suggest that it would be unconstitutional for Judge Boasberg to inquire further because his “sweeping inquiry intrudes on core Executive functions to investigate and prosecute crimes” (p.16).
As I noted in the Introduction to this piece, it’s not obvious to me that Chief Judge Boasberg needs to elicit much more (if any) evidence in order to determine who was responsible for the Government’s violation of his TRO. The panel’s secondary rationale for granting the mandamus petition, however—the notion that any evidence suggesting criminal contempt of court would have to be “referred” by a court to DOJ to allow the Executive Branch to determine whether to bring any charges and proceed to trial—rests upon a fundamental misunderstanding of what it would mean for a federal court to “refer” a criminal contempt of court case to the Department of Justice, or to a non-DOJ prosecutor, for “prosecution.”
As the Supreme Court has repeatedly acknowledged, courts have an inherent power to punish those who willfully violate their orders. See, e.g., United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 207 (1821); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1873); Ex parte Terry, 128 U.S. 289, 302-304 (1888); In re Debs, 158 U.S. 564, 594-595 (1895); Michaelson v. United States ex rel. Chicago, St. Paul, Minneapolis & Omaha R. Co., 266 U.S. 42, 65-66 (1924); United Mine Workers v. Bagwell, 512 U.S. 821, 831 (1994). That’s true of Article III federal courts, too: “The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.” Robinson, 86 U.S. (19 Wall.) at 510. This was “regarded as settled law” more than a century ago. Michaelson, 266 U.S. at 65.
Congress confirmed this inherent judicial power in Section 17 of the very first Judiciary Act of 1789, ch. 20, 1 Stat. at 83, which provided that “all the said courts of the United States [established by the Act] … shall have power … to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” Today, that statutory authority is codified in 18 U.S.C. § 401(3): “A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority … as— … [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.”
Thus, as a general matter, a federal court does not need to “refer” anything to the Executive Branch in order to punish someone who has willfully violated a court-ordered injunction. As Aditya Bamzai and Sam Bray have recently written, “[c]ommon law and equity courts have long exercised a contempt power” in which “the ascertainment and punishment of contempt was a thoroughly judicial activity.” Therefore, as Bamzai and Bray demonstrate, federal courts “are not and have never been … dependent on the executive branch (1) to determine whether a contempt occurred, (2) to say that a contempt occurred, and (3) to say what the sanction for that contempt is.”
The most familiar example of this practice is what’s come to be known as a “direct contempt” sanction—where a court punishes a party, lawyer or other case participant (or member of the public) for interfering in the courtroom itself with the operation of judicial proceedings. In such a case, the judge typically doesn’t need to do any sort of investigation, because she has witnessed the contempt with her own eyes. Federal Rule of Criminal Procedure 42(b) describes the “summary” process for dealing with such direct contempts of court: “[T]he court … may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies.” (As with any criminal contempt, a conviction (and criminal penalty) requires proof beyond a reasonable doubt. See, e.g., Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444 (1911). And if the contempt conviction could result in imprisonment of more than six months, the defendant has a right to a jury trial. Bloom v. Illinois, 391 U.S. 194, 209-210 (1968).)
Where, as here, however, the contempt is “indirect”—in the sense that it involves conduct outside the court’s presence that violates a court order—more is needed. Rule 42(a) provides that a person may be punished for criminal contempt in such a case only after the court has given the defendant “notice” in open court, in an order to show cause, or in an arrest order. This court-provided notice to the defendant, which initiates the contempt “trial,” must “(A) state the time and place of the trial; (B) allow the defendant a reasonable time to prepare a defense; and (C) state the essential facts constituting the charged criminal contempt and describe it as such.”
In a case of indirect contempt, in other words, the court performs a pre-trial role akin to that of a grand jury in an ordinary criminal case—the court is, in effect, the charging entity, whose “notice” to the defendant of the “essential facts” establishing contempt, and triggering a future “trial,” is analogous to a grand jury indictment. See United States v. United Mine Workers, 330 U.S. 258, 296 (“The rule requires criminal contempt to be prosecuted on notice stating the essential facts constituting the contempt charged.”) (emphasis added); Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987) (“a court has the authority to initiate a prosecution for criminal contempt”) (emphasis added); id. at 793 (“it is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders”); id. at 796 (“Courts cannot be at the mercy of another Branch in deciding whether such proceedings should be initiated”); see also Brief filed by SG Charles Fried for the United States as Amicus Curiae in Young at *18 (1986) (“Rule 42[] contemplates that punishment for criminal contempt may also be imposed in proceedings initiated by the court itself. This power was recognized by Congress in Section 17 of the Judiciary Act of 1789, ch. 20, 1 Stat. 83, and it has been recognized by this Court ever since as an integral attribute of the federal courts that is essential to their ability to enforce their authority.”). (Although some courts of appeals have held that a grand jury can indict a defendant for criminal contempt, the Supreme Court has held that the Fifth Amendment doesn’t guarantee the defendant a right to a grand jury determination in such cases, see Green v. United States, 356 U.S. 165, 187 (1958), and such indictments haven’t been the norm.)
Of course, in order to ascertain whether “essential facts constituting the criminal contempt” exist, the court (again, like a grand jury) must assess the relevant evidence, most or all of which will have occurred outside the judge’s presence. In particular, the court must determine which individuals, if any, willfully violated the court order—something that ordinarily requires evidence about what various actors did and, as here, what they understood the injunction to prohibit or require. (In such cases, courts often choose to assess whether there’s “probable cause” to believe the defendant has acted contumaciously. Neither Rule 42 nor any other law requires a probable cause finding, or otherwise specifies the standard for the court’s determination of the requisite “essential facts.” See also DOJ Criminal Resource Manual § 763 (“It is unclear whether probable cause that a willful violation has occurred is a condition precedent to the commencement of a criminal contempt action.”). Nevertheless, as Chief Judge Boasberg wrote earlier in the proceedings, some courts have concluded that applying such a probable cause standard is “a prudent way of affording alleged contemnors the procedural protections associated with other criminal proceedings.”)
Chief Judge Boasberg was simply trying to determine—as would a grand jury—whether the evidence supports the initiation of such contempt proceedings against any particular Executive Branch actors, including Blanche and Bove. That evidentiary inquiry is entirely consistent with the role of a federal court antecedent to its decision whether to initiate a criminal contempt-of-court trial.
The Executive Branch ordinarily plays no role in such investigatory and “charging” (i.e., “notice”) stages of an indirect criminal contempt proceeding. To be sure, a court may ask DOJ to help investigate a possible criminal contempt of court, just as it may elicit the assistance of other parties at the investigative stage. See Bamzai & Bray at 24-25 (recounting historical examples, including United States v. Shipp, in which the Supreme Court itself appointed its deputy clerk, James D. Maher, as a “commissioner” to investigate contempt by a sheriff, after a black prisoner who had been in the sheriff’s custody was lynched, see 214 U.S. 386, 471-72, 477-80 (1909)). But that’s not constitutionally necessary; courts have often not sought such assistance; and there are very good, obvious reasons for Boasberg not to ask DOJ to play such a role in this instance, where high-level DOJ officials (one of whom is now the Acting Attorney General) appear to have been responsible for the contempt of court.
If that’s the case, why did the recent D.C. Circuit panel repeatedly emphasize the ability of the district court, without further factual development, to “refer” the case to DOJ for “possible” prosecution?[5] Neither Rule 42 nor any other law or rule makes reference to such a pre-notice (i.e., pre-charge) “referral” to DOJ. The relevant question, instead, is whether the court itself finds “essential facts,” based upon the evidence the court elicits, sufficient to justify the court issuing “notice” to a defendant, “in an order to show cause,” which would then initiate the trial of that individual for criminal contempt.
The panel’s confusion might be a function of the fact that the 2002 amendments to Rule 42 do prescribe a possible role for DOJ in some indirect contempt proceedings. Before 2002, a court could conduct the contempt trial (i.e., a hearing) itself, without the aid of a “prosecutor,” as such. (I’m not aware of how often that happened. Reported cases rarely describe in detail the nature of post-notice hearings to adjudicate indirect criminal contempt.) As amended in 2002, however, Rule 42(a)(2) provides that once the court has given “notice” to the defendant of the criminal contempt—thereby triggering a trial, or hearing, in which the court will assess whether the contempt is established beyond a reasonable doubt—the court “must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.”
As section 768 of the DOJ Criminal Resource Manual explains, this prosecutorial function consists largely of the “presentation of the evidence” at the contempt trial itself “by an officer of the court appointed for prosecutive purposes”—just as the prosecutor introduces evidence and calls and questions witnesses during any other criminal trial. (Unlike in an ordinary criminal trial, however, in a contempt-of-court proceeding the “prosecutor” acts as an agent of the court itself, in aid of its judicial function. See Hollingsworth v. Perry, 570 U.S. 693, 711 (2013) (“Such prosecutors do enjoy a degree of independence in carrying out their appointed role, but no one would suppose that they are not subject to the ultimate authority of the court that appointed them.”).)[6]
As the Criminal Resource Manual notes, “[i]n the great majority of cases,” the Executive Branch’s traditional “dedication … to the preservation of respect for judicial authority makes the acceptance by the United States Attorney of the court’s request to prosecute a mere formality.” However, “there may be sound reasons in a given case for the United States Attorney to decline participation in the proceedings and for the prosecution to be conducted on behalf of the court by private counsel appointed by the court for this purpose.” This would obviously be one of those exceptional cases: If and when Chief Judge Boasberg were to initiate a criminal contempt trial by issuing the required “notice” to particular officials, the Trump-appointed U.S. Attorney would surely decline to act as prosecutor at the trial. Therefore, Chief Judge Boasberg would, in the words of Rule 42, “appoint another attorney to prosecute the contempt.”
* * * *
As I noted above, in its opposition to the request for en banc rehearing, DOJ suggests (p.16) it would be unconstitutional for Judge Boasberg to inquire further into the facts underlying the violation of the March 15 TRO because his “sweeping inquiry intrudes on core Executive functions to investigate and prosecute crimes.” Presumably that suggestion is predicated upon Justice Scalia’s concurring opinion in Young v. U.S. ex rel. Vuitton et Fils (1987). In that opinion, which no other Justice joined, Justice Scalia argued that the participation of a private party as a trial prosecutor in a criminal contempt case would be an unconstitutional usurpation of the President’s power to execute the law and is not a proper function of the federal judiciary.
Justice Scalia’s idiosyncratic view in Young might well find favor with some current Supreme Court Justices. See Donziger v. United States, 143 S. Ct. 868, 868-69 (2024) (Gorsuch, J., joined by Kavanaugh, J., dissenting from denial of cert.) (asserting that the Court’s holding in Young “has met with considerable criticism” and that “Members of this Court” have written that courts do not have “the power to prosecute crimes,” but citing for these propositions only the singular view of one “Member” of the Court, Justice Scalia, whose view contradicted many Supreme Court precedents and the views of all his colleagues in Young). But that doesn’t make it correct. For one thing, the individual acting as prosecutor at a trial isn’t executing the law at all—just as a private counsel who argues in favor of compliance with federal law in a civil case before a court isn’t exercising “the executive power.” That person is simply urging some other actor (a court or a jury) to issue a judgment that would require the defendant(s) to comply with the law. The prosecutor (like other attorneys in cases involving allegations of violations of federal law) lacks the independent power to subject the defendant to the sovereign’s coercive power.[7] What’s more, the contempt prosecutor is engaged in assisting the court in the exercise of the Article III judicial power, as the Supreme Court has recognized in many cases over the course of more than 200 years, and as eight Justices in Young reaffirmed (the seven who joined the relevant part of the Brennan majority opinion and Justice White in dissent). See generally Bamzai & Bray; see also SG Fried’s brief for the United States in Young at 17 (“We … do not endorse petitioners’ contention that the constitutional doctrine of separation of powers absolutely prohibits a court from appointing private counsel to assist it in adjudicating charges of criminal contempt, even where the court has been unable to enlist the aid of the Executive.”).
In any event, it’s premature to worry about that constitutional question in this case, because Chief Judge Boasberg’s proceedings don’t yet involve any prosecution for criminal contempt in which a private prosecutor would be assisting the court. If the en banc court of appeals were to reject the Government’s mandamus petition, that would merely permit Chief Judge Boasberg to complete his investigation of the facts and to decide whether to initiate a contempt trial by providing notice thereof to particular defendants.
In its brief opposing en banc review, DOJ goes beyond the Scalia opinion to insinuate that even Chief Judge Boasberg’s pre-trial investigation (and possible issuance of a notice of criminal contempt) might unconstitutionally usurp executive authority (p.16). But just as a grand jury—which, like a district judge, is not an Executive Branch actor—may perform such pre-trial investigatory and “charging” functions in an ordinary criminal case, so, too, can a court do so in a case involving possible criminal contempt of court. The Constitution does not preclusively assign such functions to the President. (Nor does anything in Justice Scalia’s Young concurrence suggest otherwise.)
* * * *
In sum, because the immediate “decision before the district court” was not “whether to make a referral [to the Department of Justice] for criminal contempt” (panel majority opinion at 32), Chief Judge Boasberg’s continuation of his pre-charge investigation was not “a clear abuse of discretion” (id. at 29). Accordingly, the panel’s alternative ground for issuing the writ of mandamus was no more proper than its principal rationale.
– – – – – – – –
[1] One possible exception occurred in 1978, when District Court Judge Henry Bramwell imposed a $10,000 fine on the NLRB General Counsel based upon the Board’s failure to comply with a subpoena. It appears, however, that the judge imposed that criminal contempt sanction merely as a means of facilitating an immediate appeal so that the court of appeals could adjudicate the legality of the underlying subpoena. See In re Irving, 600 F.2d 1027, 1030, 1037 n.10 (2d Cir. 1979). When the court of appeals modified the underlying injunction, it vacated the criminal contempt order. Id. at 1037.
Moreover, as Nick Parrillo demonstrated in Part V of an important 2018 article, not only are criminal contempt sanctions against Executive officials virtually unheard of, but federal courts have rarely imposed even civil contempt sanctions—i.e., those designed to coerce compliance with court orders—on Executive Branch officials. That reluctance might be changing now, as several courts have recently had to resort to issuing civil contempt sanctions in order to induce immigration officials to comply with court orders. See, e.g., Supplemental Order in Juan T.R. v. Noem, No. 0:26-cv-00107, at 5 (D. Minn. Feb. 26, 2026) (Schiltz, J.) (“Increasingly, this Court has had to resort to using the threat of civil contempt to force ICE to comply with orders. The Court is not aware of another occasion in the history of the United States in which a federal court has had to threaten contempt—again and again and again—to force the United States government to comply with court orders.”).
[2] As a technical matter, this aspect of the Court’s opinion might not have encompassed the individuals previously transferred to El Salvador on March 15-16 because the Court cryptically wrote that “in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act” (emphasis added). The Court did not explain, however, why that due process requirement would not also have applied to the previously transferred AEA detainees before they were flown from the United States, and there’s no apparent constitutional basis for distinguishing among the detainees.
[3] Although it’s not self-evident why the plaintiffs have Article III standing to seek en banc review, the Government hasn’t challenged their standing. See also D.C. Circuit Rule 21(b) (“Unless otherwise ordered, the district judge will be represented pro forma by counsel for the party opposing [mandamus], who will appear in the name of such party and not that of the judge.”). I don’t discuss that question further here because it’s not of practical relevance, given that the full court can choose on its own initiative to reconsider any panel judgment en banc.
[4] It appears that Blanche and Bove might also have advised DHS that Boasberg’s oral decree was never binding in the first instance: In the earlier stages of the contempt litigation DOJ argued that “[o]ral statements are not injunctions” at all. Even Judge Walker agrees, however, that it was (see p.5 n.20), and that the oral order required the defendants to return the AEA detainees to the United States. Accord Judge Childs’ dissent at p.68 n.23.
[5] The panel was not alone in this imprecise formulation. In an order he issued last November, Chief Judge Boasberg himself wrote that he “must determine whether Secretary Noem or anyone else should be referred for potential contempt prosecution.” See also, e.g., Judge Pillard’s earlier opinion at p.16.
[6] In one sentence of his opinion for the Court in Young, Justice Brennan wrote that “[a] prosecutor exercises considerable discretion in matters such as the determination of which persons should be targets of investigation, what methods of investigation should be used, what information will be sought as evidence, [and] which persons should be charged with what offenses … .” 481 U.S. at 807. It’s possible Brennan referred to those functions because (apparently) some judges in the period preceding Young had appointed private parties to engage in the initial investigative activities concerning contempt of court—including even, in Young itself, a sting operation, see id. at 791-92. As noted above, however, although a court can certainly procure the aid of others in the investigative stages of an indirect criminal contempt process, the court itself controls that process and is solely responsible for determining “which persons should be charged.” The prosecution function to which the amended Rule 42(a)(2) refers is simply the conduct of the appointed attorney during the trial itself—a role that is performed in aid of the court’s judicial function—after the court’s decision to give “notice” of the possible contempt.
[7] To be sure, in Morrison v. Olson the Court stated in a footnote that it was “clear” that Independent Counsel Alexia Morrison was “an ‘officer’ of the United States” who had to be appointed in conformity to the Appointments Clause, 487 U.S. 654, 671 n.12 (1988), which would suggest that Morrison exercised “significant authority” pursuant to federal law, see Lucia v. SEC, 585 U.S. 237, 245 (2018). In the case of an Independent Counsel such as Morrison, that significant authority did include “executive” authority because she could initiate prosecutions by framing and signing indictments or by filing informations. See 487 U.S. at 662. That would not be the case with respect to a private person a court might assign to act as a “prosecutor” in a contempt trial after the court itself initiated that proceeding.
