U.S. District Judge James Boasberg threatened on Wednesday to find the Trump administration in criminal contempt of court for defying a court order to return Venezuelan migrants en route to a Salvadoran prison last month — possibly setting the stage for an unprecedented showdown between President Trump and the judicial branch.
Boasberg, who said the government “deliberately flouted” his orders, warned if the administration doesn’t change course, he could hold hearings, recommend criminal charges and hire a private attorney to prosecute the case if the Department of Justice refuses.
Why could Judge Boasberg hold the Trump administration in contempt of court?
In a searing written decision, Boasberg said the Trump administration showed a “willful disregard” for his orders not to deport migrants under the Alien Enemies Act of 1798.
The government has cited the 18th-century law to fly hundreds of alleged members of Venezuelan gang Tren de Aragua to El Salvador, whose government is holding scores of U.S. deportees in a notorious maximum-security prison. The Trump administration has touted the deportations as ridding the U.S. of foreign gang members, but an analysis by “60 Minutes” last week showed that 75% of the men sent to CECOT in El Salvador had no criminal records. At least 22% of the men on the list have criminal records here in the United States or abroad. The vast majority are for non-violent offenses like theft, shoplifting and trespassing. About a dozen are accused of murder, rape, assault and kidnapping. It was unclear if any criminal record existed for the other 3%.
Some of those migrants sued to prevent their removal last month, and Boasberg quickly ordered the government verbally to return the migrants to the United States, even if that requires officials to “turn a plane around.” The judge later issued a written order barring the administration from removing migrants under the Alien Enemies Act.
Boasberg wrote Wednesday the government disobeyed those orders by not returning the migrants to the United States. Since then, he said he’s given officials “ample opportunity” to explain what happened, but found their responses unsatisfactory.
The Trump administration has denied violating the judge’s order, and White House communications director Steven Cheung says the government will appeal Boasberg’s ruling. “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 wrote in a statement.
What is contempt of court?
Under federal law, criminal contempt of court is defined as disobeying a federal court’s “lawful writ, process, order, rule, decree, or command.”
As with any criminal case, prosecutors would need to prove beyond a reasonable doubt that a defendant — in this case, potentially a federal official — willfully violated an order, says Mitchell Epner, a partner at the New York law firm Kudman Trachten Aloe Posner.
Contempt cases are extremely rare, according to Epner. He said that during his three-year stint as a federal prosecutor in New Jersey, he can’t recall anyone even threatening to bring a criminal contempt of court case, much less actually bringing charges.
“In my experience as a lawyer over the last 30 years, even the hint of being held in contempt by a judge is ordinarily enough in order to cause litigants to correct their behavior,” Epner said.
What happens next in this case?
Before moving forward, Boasberg gave the government an opportunity to “purge” its alleged contempt, saying the government could take the migrants back into U.S. custody so they can potentially seek relief from a court. If the administration decides to go down that route, he gave officials one week to file court papers “explaining the steps they have taken and will take.”
Boasberg said he is also open to other solutions.
Otherwise, Boesberg says the Trump administration has one week to give the court the names of whoever “made the decision not to halt the transfer” of the migrants covered by his orders. If needed, Boasberg said he’ll hold hearings or order depositions to gather more details.
After that, Boasberg said he could recommend a criminal prosecution for contempt of court, though it’s unclear who the defendant would be.
However, Boasberg can’t necessarily force charges to be brought. Federal prosecutions are generally handled by the Department of Justice, which has the power to decide which cases it pursues, making it highly unlikely the Trump administration will choose to criminally charge its own officials. Epner told CBS News he “cannot imagine a circumstance” where the DOJ chooses to bring those charges.
Can Boasberg appoint a private lawyer to prosecute the administration?
It’s complicated. Boasberg notes that if the Justice Department decides not to bring contempt charges, he has the right to appoint a private attorney to step in and prosecute the case. That option isn’t unheard-of: In one well-known 2023 case, the Supreme Court chose not to strike down a contempt conviction against lawyer Steven Donziger that was prosecuted by private attorneys.
But that route is extremely unusual and would almost certainly face legal pushback, Epner says. In the small handful of situations where judges have appointed lawyers to step in and act as prosecutor, it has generally been because the DOJ simply decided bringing contempt charges wasn’t worth its time, according to Epner. Boasberg’s case is far thornier because it would involve a direct confrontation with federal officials.
“Actually trying to prosecute a criminal contempt here would be a mess because all of these issues would have to be unpacked,” Epner said.
Any effort to prosecute Trump administration officials privately could reach the Supreme Court, and Epner argues “all evidence is that they are bending over in every possible supine position to avoid a showdown with Donald Trump.” The court has already weighed in, overturning Boasberg’s order on the grounds that cases should have been brought in another court district.
For those reasons, Epner thinks it’s unlikely that Boasberg will go with private attorneys, saying, “it is literally setting up a constitutional crisis.”
Could the Trump administration face other contempt charges?
It’s unclear, though the administration has run into resistance from federal judges in other cases.
Judge Paula Xinis has ordered the government to facilitate the return of Kilmar Abrego Garcia, a native of El Salvador who the Trump administration conceded was mistakenly sent to the same Salvadoran prison as the Venezuelan migrants. In a hearing Tuesday, Xinis said the administration “has not yet fulfilled the mandate, the order, that I issued,” and ordered expedited discovery in the case, saying, “there will be no tolerance for gamesmanship or grandstanding.”
Abrego Garcia’s lawyers have suggested the government be held in contempt. Xinis said Tuesday, “I will have the record before me to call it like I see it” before ruling on contempt.
