Trump Administration’s El Salvador Deportation Flights Likely Criminal Contempt, Judge Rules

Topline

The Trump administration likely committed criminal contempt when it flew migrants to El Salvador despite a court ruling forbidding it, Judge James Boasberg ruled Wednesday, teeing up potential consequences for Trump officials and marking the first instance of a court finding the Trump administration defied its order.

Prisoners at maximum security penitentiary CECOT on April 4 in El Salvador.

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Key Facts

Boasberg ruled Wednesday there’s “probable cause” the Trump administration acted in contempt of court by carrying out flights to El Salvador, writing the government “deliberately flouted” his order and was “stonewalling” the court by “refus[ing] to answer basic questions about what had happened” with the flights.

No officials will be punished immediately, as the judge said he’s first giving the government a chance to “purge” its contempt—likely by returning the migrants it deported—before moving forward with identifying who was responsible for defying his order and referring them for prosecution, if the Trump administration still doesn’t comply.

Boasberg ruled Wednesday on the issue of whether the Trump administration intentionally violated his previous order on March 15 barring the government from deporting any migrants under President Donald Trump’s executive order that invoked the Alien Enemies Act, with Boasberg ruling—first verbally during a hearing, and then in a written order hours later—the White House could not temporarily deport anyone under that order while he continued considering the issue.

The Trump administration deported more than 200 migrants to El Salvador on March 15 despite Boasberg’s order, maintaining it did not violate the court ruling because the flights had already left before his written order was issued, and arguing Boasberg lost authority over the flights once they left U.S. airspace—an argument the judge said Wednesday was “nonsensical” based on his “clear and unequivocal” order directing the administration not to let any migrants leave U.S. custody, regardless of whether or not they were still in the country.

Boasberg assailed the Trump administration’s claims the judge exceeded his authority by trying to turn the flights around, arguing, “To argue that this Court did something more than what courts routinely do, Defendants must grossly mischaracterize its Order and oral command”—and noting that even if he did exceed his authority, defendants cannot “defend contempt charges by asserting the unconstitutionality of the injunction.”

White House communications director Steven Cheung said Wednesday the Trump administration plans to seek “immediate appellate relief” by asking an appeals court to nullify Boasberg’s ruling, adding Trump “is 100% committed to ensuring that terrorists and criminal illegal migrants are no longer a threat to Americans and their communities across the country.”

Crucial Quote

“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 Wednesday. “To permit such officials to freely ‘annul the judgments of the courts of the United States’ would not just ‘destroy the rights acquired under those judgments’; it would make ‘a solemn mockery’ of ‘the constitution itself.’”

Surprising Fact

The Supreme Court later threw out Boasberg’s March 15 ruling and said the Trump administration can deport people under the Alien Enemies Act. Boasberg argued that doesn’t stop him from holding officials in contempt for defying his order while it was still in effect, however, writing, “It is a foundational legal precept that every judicial order ‘must be obeyed’ — no matter how ‘erroneous’ it ‘may be’ — until a court reverses it.”

What To Watch For

Boasberg ordered the Trump administration to say by April 23 what steps it’s taking to purge the contempt finding, if it wants to try and comply with Boasberg’s March 15 order now to avoid being held in contempt. The “most obvious way” for the government to avoid contempt proceedings is to return the people it deported to the U.S., Boasberg said, which would not require releasing them from immigration detention and would allow any migrants to go through the traditional legal process to determine whether they should be deported. The government could also suggest other ways to comply with the ruling, however. If the Trump administration decides not to try and avoid the contempt proceedings, it has to submit declarations by April 23 indicating who was responsible for violating the judge’s order, Boasberg said Wednesday.

Which Trump Officials Could Be Punished For Contempt?

It’s unclear. Attorneys for the Justice Department previously told Boasberg they didn’t know who made the ultimate call that the flights should proceed to El Salvador on March 15 and not be turned around in response to the judge’s ruling. Boasberg said in his ruling he will first ask the government to submit sworn declarations to help identify who violated the ruling, and could then order live witness testimony or depositions if the declarations are “unsatisfactory.”

How Would A Prosecution For Criminal Contempt Work?

If the Trump administration doesn’t try to purge Boasberg’s allegations of criminal contempt, the judge can order a prosecution against the officials who defied his order. Since it’s unlikely Trump’s DOJ would agree to prosecute its own officials, federal law allows Boasberg to appoint an outside prosecutor to conduct the prosecution and move forward with criminal charges. Trump could likely pardon any officials who were found guilty of criminal contempt, however, legal experts previously told Forbes.

What Punishments Could Trump Officials Face?

Criminal contempt is typically punishable by a fine and/or prison time—though Trump could likely get those punishments erased by pardoning any officials who are sentenced.

Key Background

The Trump administration’s deportations of people to El Salvador have become a flashpoint within its broader crackdown on immigration. Trump’s executive order invoking the Alien Enemies Act was meant to target people who belong to Venezuelan-based gang Tren de Aragua, though multiple reports suggest most of the people sent to El Salvador had no criminal record, and many appear to only have been identified as gang members because of unrelated personal tattoos. Immigration advocates have protested the apparent lack of due process for those sent to El Salvador, including those deported under the Alien Enemies Act and Kilmar Abrego Garcia, a Maryland man in the U.S. legally whom the Trump administration admitted it deported to El Salvador because of an administrative error. Boasberg’s ruling comes as Trump critics have long feared his administration could violate court orders against it, as Trump officials have heavily protested rulings blocking the administration’s policies and suggested judges don’t have the authority to constrain the president’s agenda. The judge’s order Wednesday marks the first time a court has formally ruled the Trump administration likely acted in contempt, however, and the Trump administration has maintained it has never intentionally defied any court rulings.

Tangent

Boasberg’s contempt ruling could be the first of multiple such orders against the Trump administration. Judge Paula Xinis suggested at a hearing Tuesday she could hold the government in contempt for failing to facilitate Garcia’s return to the U.S., as the Supreme Court has ordered the Trump administration to do. Garcia’s lawyers have asked the court to hold Trump officials in contempt, and Xinis said Wednesday the government must provide evidence by the end of the month showing what steps it’s taking to comply with the court. If it doesn’t, the judge could move forward with considering the contempt request, Xinis suggested.