Three weeks after the D.C. Circuit Court of Appeals made the “drastic” move to nullify a federal judge’s criminal contempt finding against President Trump’s administration, attorneys for Alien Enemies Act (AEA) deportees have requested the full appellate court to reevaluate the case. They urge the court to counteract the “dangerous” decision led by Trump-appointed judges in a 2-1 ruling.

The ACLU lawyers representing J.G.G. et al. v. Trump argue that an en banc rehearing is warranted due to “open legal questions” and to allow Chief U.S. District Judge James Boasberg to consider “significant whistleblower evidence” highlighting when and what the DOJ knew regarding his March 15 restraining order halting (AEA) deportations.

“The full Court’s review is needed because the ruling causes an intra-Circuit conflict on the correct standard for mandamus relief. Crucially, the ruling impacts the Judiciary’s power to enforce its directives,” asserted the petition for rehearing en banc, criticizing the ruling by Circuit Judges Neomi Rao and Gregory Katsas as “dangerous.” “Undermining the courts’ power to enforce orders is a direct blow to federal authority. The ruling further endangers the district court’s ability to investigate potential deliberate disobedience of its order, a preliminary measure, preceding any remedial action or criminal referral.”

According to Law&Crime, Boasberg had verbally issued a temporary restraining order in March to stop deportation flights to El Salvador, requiring any airborne planes to return. The Trump administration disregarded this order. In April, Boasberg identified probable cause for holding the administration in criminal contempt, but the U.S. Supreme Court later overturned it. During the appeal from April to August, damaging whistleblower allegations emerged. An informant accused then-principal Associate Deputy Attorney General Emil Bove of suggesting, on the day before Boasberg’s March ruling, the DOJ might need to disregard court orders. Whistleblower Erez Reuveni also shared emails indicating he alerted DOJ leaders about the importance of Boasberg’s order.

Bove, Trump’s former criminal defense attorney, has since been confirmed to a lifetime judgeship on the 3rd U.S. Circuit Court of Appeals.

Instead of permitting Boasberg to factor these circumstances into a contempt inquiry, Rao and Katsas on Aug. 8 halted the judge’s investigation, issuing relief through a writ of mandamus— an order “compelling [Boasberg] to amend their previous mistake.”

The petitioners now argue that Rao and Katsas erred in concluding this case was fit for mandamus relief.

Noting that issuing a writ of mandamus is a “drastic” measure, the petitioners cast it as startling that the Trump-appointed majority took that course of action when the circuit judges themselves couldn’t agree on what was “clear and indisputable.”

“Indeed, Judges Katsas and Rao did not even agree on the rationale for reversing the district court, much less point to a clear-cut binding precedent,” the filing said, adding lines later: “The absence of clear-cut precedent, or even agreement among the panel, underscores that this case is rife with open legal questions.”

The plaintiffs believe the en banc D.C. Circuit should hear this case again to clarify that mandamus was inappropriate in a situation where there were “other adequate means to attain the relief.”

“En banc rehearing is warranted to ensure that this Court’s use of the drastic remedy of mandamus is uniform. Doing so will prevent litigants from prematurely seeking this Court’s review where, as here, appellate jurisdiction is plainly lacking,” the filing said.

In parting shots, the filing said Katsas’ view that Boasberg’s initial temporary restraining order was unclear is plainly undercut by whistleblower evidence.

“That career DOJ counsel repeatedly notified the relevant agencies of the district court’s order, its meaning, and its urgency, yet received no response until the next day, speaks volumes,” the petition said. “Moreover, had Defendants genuinely believed the district court’s order was unclear, they could easily have contacted Chief Judge Boasberg, who had made himself available throughout that Saturday on incredibly short notice. That they instead chose to ignore the order and then retroactively manufacture ambiguity is a remarkable step for any litigant, much less the United States Department of Justice.”

If the D.C. Circuit refuses to grant the rehearing, then it will open the door to other judicial orders being ignored, the filing concluded. The court was asked to “make clear that a party cannot avoid even having to answer a legitimate inquiry from a federal court about possible deliberate defiance of its order—especially where, as here, there is significant evidence that the DOJ lawyers litigating the case clearly understood the order at the time and that high-ranking officials stated in advance that they might not let a court order stand in their way.”

“Any other result would suggest that the Judiciary will not enforce its orders in the face of determined resistance,” the petition ended.

Read the petition in full here.