Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
In a thundering opinion on Wednesday, U.S. District Judge James Boasberg announced that he had found probable cause to hold the Trump administration in criminal contempt for defiance of his orders. It is “obvious,” Boasberg wrote, that government officials “deliberately flouted” his commands by deporting Venezuelan migrants to a Salvadoran prison on March 15 under President Donald Trump’s invocation of the Alien Enemies Act of 1798. And now they must answer for their unlawful conduct. “The Constitution,” he declared, “does not tolerate willful disobedience of judicial orders—especially by officials of a coordinate branch who have sworn an oath to uphold it.”
Wednesday’s order constitutes the first real step toward accountability for the lawless behavior of the Trump administration. Crucially, it also offers the possibility of redress for the migrants who have been imprisoned in El Salvador without due process. Boasberg gave the government one last off-ramp: It could, he wrote, “purge” the contempt by “asserting custody” over these individuals and giving them a chance to contest their treatment. If the government accepts this offer, it would have to concede that it does exercise ongoing custody over migrants locked up in El Salvador. (This concession would corroborate arguments raised by Kilmar Abrego Garcia, a Maryland father wrongly detained there, that the government has the power to bring him home.) If the government refuses this offer, Boasberg held, it must swiftly identify the officials who violated his orders so they may be criminally prosecuted, facing fines and potential jail time. Critically, Boasberg notes that if the Department of Justice doesn’t appoint a prosecutor to take the case, he will do so on his own.
Boasberg’s opinion marks the culmination of his meticulous, weekslong effort to discover what happened on March 15, when the Trump administration sent two planes carrying Venezuelan migrants to the notorious CECOT mega-prison in El Salvador. The president accused these migrants, without any credible evidence, of membership in the Tren de Aragua gang, which he designated a “foreign terrorist organization.” He then invoked the Alien Enemies Act of 1798—a wartime law that applies only to invading armies of a foreign nation—to justify deporting them without due process. By that point, Boasberg wrote, the government was already “hustling” migrants onto planes, “betray[ing] a desire to outrun the equitable reach of the judiciary.”
The ACLU promptly filed suit on behalf of five migrants subject to the order, and on the morning of March 15, Boasberg issued a temporary restraining order barring their removal. He held an emergency hearing at 5 p.m. that day, at which point Justice Department attorney Drew Ensign revealed that the administration was planning to begin the deportations immediately. Boasberg adjourned the hearing so Ensign could gather more information—and the government evidently exploited this adjournment to dispatch the two planes. When the hearing resumed, Ensign allegedly concealed this fact from Boasberg, refusing to say more on the grounds that any details “raised potential national security issues.” This obfuscation, the judge wrote on Wednesday, prompted “the growing realization” that the government “might be rapidly dispatching removal flights in an apparent effort to evade judicial review while also refusing to provide any helpful information.”
In response, Boasberg promptly expanded his injunction to protect the entire class of migrants subject to the Alien Enemies Act. He verbally instructed Ensign to halt any deportations in progress. The plaintiffs, he said, “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 … I leave to you. But this is something that you need to make sure is complied with immediately.” Boasberg published his restraining order in writing 30 minutes later.
The government did not comply. Instead, Boasberg held on Wednesday, there was probable cause to show it refused to turn around the planes, and disembarked passengers for transfer to CECOT—all in clear violation of the restraining order. “Worse,” the judge wrote, the government “defied the court’s order deliberately and gleefully,” citing Secretary of State Marco Rubio’s retweet of a post by El Salvador President Nayib Bukele boasting of the disobedience. During subsequent hearings, Boasberg pressed the Justice Department to reveal what happened. But “what followed” was “increasing obstructionism on the part of the government as it refused to answer basic questions,” raising “vague” national security concerns to justify their “stonewalling.”
Ensign, the DOJ lawyer, tried to distract Boasberg with legalistic arguments claiming that it had not technically violated his commands. For instance, Ensign said that they did not unlawfully “remove” migrants after he ruled—because “removal” only means expulsion from the United States, and the migrants were already in international airspace when he handed down his order. But, as Boasberg pointed out, this argument directly contradicts the Justice Department’s own definition of “removal” in a separate, ongoing case, in which DOJ lawyers insisted upon “the exact opposite” meaning of the word.
The argument also fails as a matter of basic logic. “Anyone paying attention to the hearing,” Boasberg wrote, “would have known” that he did not mean “mere physical exit from U.S. territory.” The government could only ignore this fact through “an egregious case of cherry-picking” to “mischaracterize” the court’s position. It also claimed that Boasberg no longer has jurisdiction to issue contempt because the Supreme Court narrowly lifted his restraining order on procedural grounds. But the Supreme Court has unambiguously held that lower courts may still issue sanctions against parties before them for violating orders even if those substantive orders are later overturned on appeal.
The upshot, Boasberg explained, is that the Trump administration’s “willful and knowing actions here constitute probable cause for a finding of contempt,” a penalty he has every right to impose. Indeed, the government has “offered no persuasive reason to conclude otherwise.” And rather than pursuing civil contempt, Boasberg found cause to hold the defendants in criminal contempt—a punishment that includes large fines and up to six months in jail.
But Boasberg gave the government one last way out: It could “purge” the contempt by “asserting custody of the individuals” who were unlawfully removed and allow them to challenge their deportation to CECOT. The Supreme Court unanimously agreed that migrants have a right to file these challenges, called habeas petitions, just last week. But in the separate case of Kilmar Abrego Garcia, an immigrant mistakenly deported to El Salvador, the government has claimed it has no control over individuals once they’re locked up in CECOT. Boasberg is, in effect, calling the government’s bluff. He will forgo contempt proceedings if officials let CECOT detainees vindicate their rights. But by doing so, these officials will have to acknowledge that they do exercise constructive custody over these individuals. And this acknowledgment would puncture the fiction that they have no practical authority to bring Abrego Garcia, or anyone else, back from El Salvador.
Should the government refuse this offer, Boasberg will “proceed to identify the individual(s) responsible” for defying his orders, through “live witness testimony” if necessary. He will then ask the Department of Justice to appoint a prosecutor; if the DOJ refuses, he noted pointedly, federal law empowers him to appoint a private attorney to prosecute the defendants for contempt instead, as the “interest of justice” requires. If Boasberg orders the defendants arrested and jailed, federal marshals are responsible for carrying out the task. But if the Justice Department instructs marshals to stand down, Boasberg can appoint other law enforcement officers, including state police, to seize and detain the federal officials who defied him.
There are two chief threats to this path forward. The first is Supreme Court intervention, and whether a majority of justices will throw Boasberg under the bus is anyone’s guess at this point. Simply as a matter of preserving the judiciary’s independence, the justices should back him up and decline to condone such brazen defiance of judicial authority. But this Supreme Court keeps dodging conflicts with Trump at the expense of its own power. The second hitch is that Trump could pardon any officials accused of criminal contempt; he could even do so before they are found guilty, thwarting the prosecution. At that point, however, Boasberg could still hold them in civil contempt, which can’t be pardoned; he could then impose significant fines and deputize law enforcement to enforce them.
Wednesday’s opinion is likely the first of several forthcoming orders finding probable cause of contempt against the Trump administration. At a tense Tuesday hearing, U.S. District Judge Paula Xinis indicated that she, too, is weighing contempt against officials who refuse to “facilitate” Abrego Garcia’s return from El Salvador, as both she and the Supreme Court have now ordered. Perhaps the biggest question surrounding these cases—other than whether the men unlawfully trapped in a gulag in El Salvador can receive any redress—is whether the Supreme Court will stand behind the judges enforcing its rulings on the ground. Boasberg has now taken that step, trusting the justices to support him; Xinis may not be far behind. If the Supreme Court fails to back them up, it risks surrendering the entire judiciary’s authority to an executive branch that recognizes no limits on its power.
Sign up for Slate’s evening newsletter.
