DOJ Challenges Judge Boasberg’s Decision in D.C. Circuit Court

In a bid to avoid appearing in court next week, the Department of Justice (DOJ) has approached a federal appeals court in Washington, D.C., asking them to halt a judge’s persistent efforts to obtain clarity on whether deportations under the Alien Enemies Act (AEA) proceeded in March despite an order to halt them. This move involves a potential criminal contempt referral against DHS Secretary Kristi Noem.

The DOJ filed an emergency petition for a writ of mandamus with the U.S. Court of Appeals for the District of Columbia Circuit on Friday, strategically timed just before former DOJ attorney turned whistleblower Erez Reuveni is scheduled to testify. The Trump administration criticized Chief U.S. District Judge James Boasberg for insisting on in-person testimony, dismissing his preference for court declarations as insufficient.

The DOJ argued that the ongoing contempt inquiry ventures into “constitutionally uncharted territory,” labeling Boasberg’s investigation as “questionable and concerning” with his recent directive being “incoherent on its own terms.”

The DOJ maintained, “Should the district court still believe that the Defendants breached its temporary restraining order, it can refer the case for potential prosecution. However, there is no legal basis for the court to perform an independent criminal investigation.” They added that the court’s actions are troubling, especially since the Defendants have already submitted all pertinent, non-privileged information, and the court had previously identified probable cause for the offense without needing additional evidence.

Despite a Trump-appointed majority in the D.C. Circuit panel granting a “rare and drastic” writ of mandamus in August to overturn Boasberg’s “contempt-related order,” the DOJ is seeking a similar decision now. This comes even after a full panel opinion in November allowed Boasberg to continue requiring the government to identify decision-makers involved in the potentially contemptuous actions and to deliberate on further steps.

Judge Boasberg, appointed by Barack Obama and previously by George W. Bush to the Washington, D.C., Superior Court, took action earlier this week—a move the DOJ perceives as unnecessarily escalating tensions between the judiciary and executive branches.

“The district court’s order both usurps executive power and needlessly generates inter-branch conflict by appointing itself as an investigator seeking to identify and root out imagined government misconduct,” the DOJ continued.

As Law&Crime reported, the controversy dates back to March 15, when Boasberg held a hearing on a Saturday and orally issued a temporary restraining order (TRO), blocking the government from carrying out sweeping AEA deportations of Venezuelan nationals to a notorious Salvadoran prison — individuals whom the government alleged were affiliated with the Tren de Aragua gang — and ordering the Trump administration to turn around any planes that were in the air.

The planes did not turn around. Ever since, Boasberg has been trying to get to the bottom of who told whom what, when, and why — that is, the legal basis for apparent non-compliance.

According to Boasberg’s latest order, Noem and DOJ higher-ups have only “submitted cursory declarations” providing an explanation under penalty of perjury, necessitating the testimony of fired DOJ attorney Erez Reuveni and Deputy Assistant Attorney General Drew Ensign. The latter claimed at the March 15 hearing that he did “not have additional details [he] can provide at this time” about whether deportation flights were afoot.

While Noem has specifically declared she decided to move the deportations forward before Boasberg issued his order, Deputy Attorney General Todd Blanche, President Trump’s former criminal defense lawyer, stated that on the evening of March 15 he provided “privileged legal advice” to Noem through Acting DHS General Counsel Joseph Mazzara.

Concluding that testimony was needed to decide whether there was a “willful violation of the Court’s Order” warranting a referral for prosecution, Boasberg set testimony for next week.

The DOJ says it does not want that testimony to take place because it could mean the “likely disclosure of privileged information[.]” Therefore, the Trump administration sought a stay and “extraordinary” and “drastic” mandamus relief.

“Immediate review is particularly appropriate to stave off a looming ‘constitutional confrontation’ between the Executive and Judicial Branches,” the DOJ said, describing Boasberg as “doggedly pursuing an idiosyncratic and misguided,” and “ongoing illegal inquiry” into whether the government “committed criminal contempt.”

“Defendants did not—and have repeatedly and forthrightly explained why not—but the court has barreled ahead,” the filing said, labeling the scheduled proceeding as a “circus” and “spectacle” that “is not a genuine effort to uncover any relevant facts.”