Obama-appointed Judge James Boasberg exceeded his authority when he threatened the Trump administration with criminal contempt, an appeals court found on Friday.
In a 2-1 decision, the D.C. Circuit Court of Appeals sided with the Trump administration, tossing Boasberg’s order finding probable cause for contempt over the administration’s decision not to turn planes around.
Boasberg claimed administration officials violated a March 15 temporary restraining order (TRO) directing them not to remove alleged members of a foreign gang to El Salvador by sending out planes that same day. He initiated contempt proceedings even after the Supreme Court tossed his initial TRO in a 5-4 ruling in April.
“The district court used the threat of criminal contempt to coerce the Executive Branch to comply with an order it had no authority to enforce,” Judge Neomi Rao, a Trump appointee, wrote in a concurring opinion. “And it directed that coercion toward the Executive’s exercise of its foreign affairs power. The significance of the district court’s error, coupled with the potential for abuse in future cases, justifies our intervention at this stage of the proceedings.”
Judge Gregory Katsas, also a Trump appointee, wrote Boasberg’s order “would provoke many grave conflicts between the Judicial Branch and the Executive Branch at its highest levels.”
“[T]his Court and the Supreme Court repeatedly have afforded review through mandamus when a lower court has encroached on foreign policy, prosecutorial, or other Executive Branch prerogatives,” he wrote. “The show cause order does precisely that: It uses the threat of criminal prosecution to pressure the Executive Branch to assert custody of suspected enemy aliens outside the country, with a view to bringing them back into the country, or else to endure a court directed prosecution by a court appointed attorney presumably not subject to the Attorney General’s control.”
The Department of Justice filed a misconduct complaint against Boasberg July 30 for making “improper public comments about President Trump and his Administration.”
Boasberg told Chief Justice John Roberts during a judicial conference in March that he, along with other colleagues, was concerned “that the Administration would disregard rulings of federal courts leading to a constitutional crisis,” according to a memo reported by the Federalist.
Judge Cornelia Pillard, an Obama appointee, wrote in a dissent that the courts “cannot long endure if disappointed litigants defy court orders with impunity rather than legally challenge them.”
“Chief Judge Boasberg faced immense pressure to make a quick decision in a rapidly evolving, high stakes situation,” she wrote. “He performed that task calmly and with an even hand, bringing to bear his skill and wisdom as an experienced jurist.”
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