ACLU pushes to revive criminal contempt proceedings against Trump officials

In an exclusive interview, ACLU attorney Lee Gelernt tells All Rise News further appeal is necessary because a lack of consequences for defying judges is "dangerous."

Written by Adam Klasfeld. For more legal reporting from Adam, follow All Rise News on Substack by clicking here.

Photo of Chief Judge Boasberg via United States District Court for the District of Columbia; Still frame from El Salvador propaganda video of the March 15 flights

The Trump administration may not be in the clear yet for ignoring Chief U.S. District Judge James Boasberg’s March 15 order to turn around flights carrying more than 200 men to El Salvador.

Late on Thursday evening, the American Civil Liberties Union filed an en banc appeal asking the D.C. Circuit’s full bench to reconsider a ruling that overturned Judge Boasberg’s finding of probable cause for criminal contempt.

In an exclusive interview with All Rise News, the ACLU’s attorney Lee Gelernt laid out the stakes of the pending appeal: whether the government feels empowered to violate court orders.

“If that happens and the judiciary doesn't put its foot down, I think that changes the dynamic between the branches and really puts us on dangerous ground,” Gelernt warned.

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“Very dangerous territory”

In April, Boasberg found probable cause that Trump officials wilfully violated his order to return flights carrying hundreds of men to El Salvador. Stopping short of a formal finding of contempt, Boasberg initiated a fact-finding process to determine what officials flouted his order, which could lead to criminal referrals.

Four months would pass before the D.C. Circuit adjudicated the government’s appeal of that order.

During that period, former Justice Department lawyer Erez Reuveni filed a whistle-blower complaint providing evidence of willful disobedience to Judge Boasberg’s order. In a memorable passage, Reuveni said that then-senior Justice Department official Emil Bove instructed prosecutors in a private meeting to be willing to tell the courts “f*** you.”

Senate Republicans refused to act on Reuveni’s complaint before confirming Bove for a lifetime appointment as a federal appellate court judge, and the D.C. Circuit’s slow-walking of the appeal prevented a judicial reckoning until that time.

“I think we're in a very dangerous territory because ultimately the system depends on both branches complying with court orders,” Gelernt said.

On Aug. 8, two Trump-appointed judges on the D.C. Circuit’s three-judge panel relieved the government of any consequences for ignoring Boasberg’s order. Those judges, Gregory Katsas and Neomi Rao, vacated the probable-cause order for different reasons. Dissenting Judge Cornelia Pillard, an Obama appointee, said that her colleagues did Boasberg a “grave disservice.”

The ACLU’s petition asks the D.C. Circuit to rehear the case in front of all of the court’s 11 active judges.

“It is hard to imagine a more direct blow to the authority of the federal courts than undermining their ability to enforce their orders,” the en banc petition states. “Here, the panel’s ruling is even more dangerous because it undermines the district court’s authority even to inquire into possible willful disobedience of its order—a step well short of pursuing any particular remedy, much less a criminal referral.”

“Real disrespect”

A judge’s findings of probable cause for criminal contempt are not usually appealable, but Katsas and Rao accepted the Trump administration’s argument for emergency intervention through a writ of mandamus, which has a heightened standard for redressing a clear and indisputable error.

The ACLU’s petition says that the limited nature of Boasberg’s order makes Katsas and Rao’s decisions more unsupportable.

“Although Judges Katsas and Rao had distinct reasons for believing the district court erred, both opinions had the same throughline: that the district court should not even inquire into the facts as to criminal contempt,” Gelernt wrote. “If accepted, that view would have dire consequences for the Judiciary’s ability to enforce its orders.”

Trump and his Justice Department has sought to discredit Boasberg both in and outside of court, filing a misconduct complaint against the judge and attacking him in public statements.

“I've been practicing doing this civil rights work for more than three decades now,” Gelernt said. “I don't think I've ever seen anything like what's going on in this case with Chief Judge Boasberg. I think in court and in their filings, sort of real disrespect for him and the judiciary, like nothing I've ever seen before.”

In now-public text messages, whistle-blower Reuveni spoofed the Trump administration’s disrespect for Boasberg by proposing submitting “an emoji of a middle finger as our filing” to the court.

“A picayune middle finger,” Reuveni added, a clear reference to an official Justice Department statement describing Boasberg’s order as a “picayune dispute over the micromanagement of immaterial fact finding."

Gelernt said that the attacks on Boasberg have been unrelenting, including Trump and his Capitol Hill allies agitating for the judge’s impeachment.

“You've seen now other judges come out and say, ‘Look, you may disagree with his opinions, but this is not proper to single out the individual judges or the judiciary for this kind of attack.” Gelernt said. “This is a dangerous thing for our country, and you can appeal cases. You can disagree with them, but for going after a judge individually: It is something that I have never seen.”

Read the ACLU’s petition for a rehearing here.

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