Judge ponders contempt of court over US immigration actions

WASHINGTON — A federal judge said Thursday he will decide whether to find the Trump administration in contempt of court, indicating the U.S. government may have “acted in bad faith” in a high-profile legal challenge over a presidential proclamation to remove migrants based on the Alien Enemies Act.

Judge James Boasberg of the U.S. District Court for the District of Columbia, at a hearing, pressed Trump administration attorneys about the timing of flights last month that carried migrants to a notorious El Salvador prison and his temporary restraining order to stop those removals.

“It seems to me there is a fair likelihood … that the government acted in bad faith throughout that day,” Boasberg said. “If you really believed everything you did that day was legal and could survive a court challenge, I can’t believe you ever would have operated in the way you did.”

Boasberg has drawn criticism from President Donald Trump and other government officials after he temporarily halted the removal from the United States alleged members of the Venezuelan gang Tren de Aragua. The U.S. government transferred more than 260 migrants to El Salvador, including 137 alleged Tren de Aragua members under the proclamation.

Boasberg previously has demanded the U.S. government provide information about the flights, particularly on the question of whether the planes could have returned to the United States to comply with his verbal order, which was followed up by a written order.

After a 40-minute hearing Thursday, Boasberg said he would review the material and issue an order on whether he has probable cause to believe that contempt has occurred, as well as what the process would look like from there.

Boasberg said he wouldn’t issue an opinion “before next week” and likely not before another upcoming hearing on a preliminary injunction.

Justice Department attorney Drew Ensign, representing the U.S. government, defended as lawful both the Trump administration’s actions as well as invoking the state secrets privilege rather than disclose information about the flights.

Boasberg expressed concerned at many times during the hearing about the exact timing of the Trump administration’s implementation of the proclamation. He pointed out it happened late on Friday and proceedings for deportations occurred within the next day early in the morning on Saturday.

“The courts weren’t open, but … plaintiffs could still file electronically. And yes, I was available, but you wouldn’t typically say that the window between 1 a.m. and 7 a.m. on a Saturday is the window which is sufficient time to permit someone to challenge government action, would you?” Boasberg said.

Boasberg questioned if the U.S. government was acting in haste in a purposeful effort to beat the courts before a legal challenge could be filed.

“Why wouldn’t the prudent thing be to say, let’s slow down here?” Boasberg said. “Let’s see what the judge says. He’s already enjoined the removal of five people. It’s certainly in the realm of possibility that he would enjoin further removals. Let’s see what he says, and if he doesn’t enjoin it, we can go ahead, but … better to be safe than risk violating the order.”

Ensign often invoked attorney-client privilege as a reason why he couldn’t answer Boasberg’s questions in court. Among them were inquiries on whether other U.S. government officials were on the court hearing call when Boasberg gave the verbal order to pause the flights.

Boasberg asked who made the decision against turning back the flights after the verbal order was handed down. Ensign asserted attorney-client privilege, then when pressed said he doesn’t know who made the decision. Boasberg said he’s “certainly interested in finding that out in case we proceed with potential contempt proceedings.”

Boasberg also questioned Ensign on how the U.S. government could effectively act to undo a finding of probable cause for contempt, asking how that could happen “other than the return of the individuals.” Ensign said he hasn’t given that matter thought and it would depend on the nature of the contempt charges.

The litigation was filed by the American Civil Liberties Union and Democracy Forward on behalf of five Venezuelan men whom the Trump administration had sought to remove under the Alien Enemies Act. The judge has temporarily stopped removals under the proclamation unless migrants are given a chance to challenge a determination that they are Tren de Aragua members.

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, had a minor role in the hearing and served to answer a few questions from the judge on ways to obtain information to clarify whether the U.S. government violated the order.

“We obviously feel that the order was violated,” Gelernt said.

Gelernt argued the government “didn’t provide all the information.” He offered ways for the court to obtain the information, including declarations, a hearing or deposition. Gelernt added he didn’t think declarations would be helpful because “it doesn’t seem like the government’s prepared to say specifics.”

Boasberg also explored the U.S. government’s invocation of the state secrets privilege in response to a request from Boasberg on the timing of the initial fights.

Boasberg asked the Justice Department lawyer to verify the information he was seeking on the flight was unclassified, but Ensign said he was unsure if certain aspects of those flights were classified or not.

“I’m struggling to see how state secrets privilege can cover unclassified material,” Boasberg said.

Boasberg pressed Ensign on why the couldn’t give him information in a secure fashion outside of a regular filing, pointing out courts obtain and examine information that way all the time. The judge appeared to grow frustrated, saying the government’s response was “pretty sketchy.”

Ensign replied there might be “diplomatic consequences” as a result.

Boasberg responded succinctly: “Like what?”

Ensign said that was the position of the State Department. When Boasberg said he didn’t need to accept the state secrets invocation, Ensign cited legal precedent indicating the court must have to need to refuse it, and “it appears that both plaintiffs and the government here are in agreement that there is no such need.”

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