Judge finds probable cause to hold Trump administration in criminal contempt over removals of Venezuelan migrants to El Salvador

Washington — A federal judge said Wednesday that probable cause exists to find the Trump administration in criminal contempt over what he said was its defiance of an order to turn around planes carrying Venezuelan migrants that were bound for El Salvador.

U.S. District Judge James Boasberg wrote in a 46-page decision that the government’s actions on March 15 “demonstrate a willful disregard” for his order barring the government from transferring certain migrants into Salvadoran custody under the wartime Alien Enemies Act.

Those actions, he wrote, are “sufficient for the court to conclude that probable cause exists to find the government in criminal contempt. The court does not reach such conclusion lightly or hastily; indeed, it has given defendants ample opportunity to rectify or explain their actions. None of their responses has been satisfactory.”

“The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it,” Boasberg wrote.

The judge’s ruling marks the most direct rebuke of the Trump administration amid its escalating tensions with the federal judiciary, which have particularly grown over challenges to the president’s efforts surrounding immigration.

President Trump and his allies have repeatedly attacked Boasberg over his handling of the case that arose after the president issued a proclamation in March invoking the Alien Enemies Act, a seldom-used law passed in 1789, to summarily deport Venezuelans who his administration claims are members of the gang Tren de Aragua.

The judge said the Trump administration can remedy the breach of his order before contempt proceedings are initiated by asserting custody over the migrants who were removed in violation of it, so they can assert their right to challenge their removability. Administration officials will also have the chance to suggest “other methods” of coming into compliance with the order, Boasberg wrote.

White House communications director Steven Cheung said the administration will seek immediate relief from the U.S. Court of Appeals for the D.C. Circuit.

“The president is 100% committed to ensuring that terrorists and criminal illegal migrants are no longer a threat to Americans and their communities across the country,” he said in a statement.

Boasberg, who sits on the district court in Washington, D.C., was overseeing a challenge brought by a group of Venezuelan migrants who sought to prevent their removal under the more than 200-year-old wartime law. The judge swiftly blocked the Trump administration from removing the plaintiffs from the U.S. for 14 days and, after convening an emergency hearing, told government lawyers in-person that they should return people subject to the proclamation who were on planes headed to El Salvador back to the U.S.

A written order issued shortly after blocked the Trump administration from conducting any deportations of noncitizens in its custody under the Alien Enemies Act. Boasberg’s order did not block the government from deporting the alleged gang members or others under other immigration authorities.

But the judge said that despite his written and oral directives, the government did not stop the removal process, and planes carrying migrants subject to deportation under the Alien Enemies Act later landed in El Salvador, where most were transferred to its Center for Terrorism Confinement, or CECOT.

The Trump administration’s actions sparked questions as to whether it had violated Boasberg’s order. The judge wrote in his opinion that “boasts” by Secretary of State Marco Rubio and Salvadoran President Nayib Bukele “intimated that they had defied the court’s order deliberately and gleefully.”

Who, exactly, in the Trump administration ordered the two planes to continue on to El Salvador, is unclear. In his opinion, Boasberg wrote that he plans to find that out through further proceedings and potentially live witness testimony under oath if needed. 

In the last hearing on the matter, a Justice Department attorney 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.

Boasberg found that the Trump administration failed to dispel of any concerns that they violated his injunction, and during further proceedings, declined to “admit to a grave mistake, explain how it transpired, and detail plans to rectify it.”

He accused the government of “increasing obstructionism” and “stonewalling” over its refusal to answer basic questions that aimed to resolve whether noncitizens who were removable solely under Mr. Trump’s proclamation were transferred out of U.S. custody after the judge issued his order forbidding their deportation.

“Defendants provide no convincing reason to avoid the conclusion that appears obvious from the above factual recitation: that they deliberately flouted this court’s written order and, separately, its oral command that explicitly delineated what compliance entailed,” Boasberg wrote.

The dispute over Mr. Trump’s use of the Alien Enemies Act to remove alleged Tren de Aragua members reached the Supreme Court late last month. The high court last week said that the Trump administration could resume deportations of Venezuelan migrants it claims are Tren de Aragua members under the law, but only if they are given due process. 

The high court also said that migrants challenging their removals under the Alien Enemies Act must seek judicial review through habeas petitions filed in the district where they are detained. As a result, the dispute before Boasberg in Washington, D.C., should instead be filed in Texas, where the Venezuelan migrants are confined, the Supreme Court said.

Boasberg wrote that the Supreme Court’s order “does not affect — let alone moot — the compliance inquiry presently teed up here.”

The Trump administration invoked the state-secrets privilege in an effort to keep details out of Boasberg’s reach in his efforts to find out more information about the two flights. But the judge found it is “exceedingly doubtful that the privilege applies here” because he was not asking about diplomatic agreements between the U.S. and El Salvador, or the operational specifics of how the deportations were arranged. 

“Instead, the court is simply seeking to confirm times and numbers: how many passengers the two flights carried, whether they were all deported pursuant to the proclamation, and when they were transferred out of U.S. custody,” Boasberg wrote. “The court is skeptical that such information rises to the level of a state secret.”

The judge also rejected the Trump administration’s contentions that his order infringed on the president’s authority, saying it merely restricted executive actions, which courts routinely do.

“It in no way invaded any Article II powers, despite defendants’ effort to incant new ones into existence,” he wrote. “In any event, even if the TRO did somehow overstep the court’s Article III power, defendants cannot now evade a contempt charge on that basis.”

Boasberg said that if the Trump administration and Justice Department do not prosecute his criminal contempt of court case, he will appoint someone who will.