Main: U.S. District Court for the District of Columbia Chief Judge James "Jeb" Boasberg takes part in a mock trial at Harman Hall in Washington, D.C., Feb. 17, 2026. (Francis Chung/POLITICO via AP Images). Left to right inset: Presidents Thomas Jefferson, Andrew Jackson and Abraham Lincoln appear in portraits (Library of Congress).
More than 200 former judges filed an amicus brief at the U.S. Court of Appeals for the D.C. Circuit backing the one jurist still trying to figure out if the government "willfully" violated an order against sweeping Alien Enemies Act (AEA) deportations last year.
The brief's undersigned, a mix of former federal and state judges, argued that "three episodes" from American history confirm it is "uncontroversial" for Chief U.S. District Judge James Boasberg to claim this "investigative authority": Chief Justice John Marshall's subpoena of President Thomas Jefferson during Aaron Burr's treason trial in 1807, the contempt and fine of then-General Andrew Jackson in the decade that followed, and the aftermath of President Abraham Lincoln's Civil War-era suspension of the writ of habeas corpus.
Represented by Democracy Defenders Fund and former Obama White House ethics czar Norm Eisen, the amici curiae — or friends of the court, submitting expertise to aid an eventual ruling — say these "episodes" tracked the same "sequence" that Boasberg is "properly" on.
"The proper sequence—the court investigating, with only final enforcement dependent on executive cooperation—is not a modern invention, and it is not the first time American courts have properly exercised this authority against a resistant or reluctant executive branch. The pattern recurs across the Nation's history, and in each instance, the courts' authority to obtain the facts was not seriously disputed, even by the executive officials involved," the brief said, pointing out that Jefferson's "own chief legal officer, in the earliest and most fraught judiciary-versus-executive confrontation in the Republic's history, never questioned the basic authority at issue here."
"These three episodes, spanning from the founding era through the gravest constitutional crisis in the Nation's history, establish the same pattern: the judiciary retained sole authority to investigate, even when tested against executive resistance at its most extreme, with executive cooperation only necessary for the ultimate act of physical compulsion," the amici continued, while also giving Boasberg some pointers on "less intrusive mechanisms" — like depositions and in-chambers review of privilege assertions — to get the answers he seeks before "live testimony."
The controversy goes back to March 15, 2025, when Boasberg orally issued a temporary restraining order, blocking AEA deportations of Venezuelan nationals and alleged gang members to a notorious Salvadoran prison. He also ordered the Trump administration to turn around any planes that were in the air. The planes did not turn around, and the judge has pressed ever since for answers on whether the government "willfully" violated his order and who made the decision to "transfer the deportees out of United States custody."
By December, not long after the D.C. Circuit said the judge was "free to require the government to identify the decision makers who directed the potentially contemptuous actions," Boasberg did just that — and then some — to answer if he could "find probable cause" that former DHS Secretary Kristi Noem's "actions constituted criminal contempt."
Unsatisfied with "cursory declarations" submitted by Noem — the "responsible decisionmaker" — and other high-ranking officials, the judge ordered fired DOJ attorney Erez Reuveni and Deputy Assistant Attorney General Drew Ensign to testify under oath.
The Trump administration swiftly appealed, frustrating Boasberg's inquiry again in April. But in late June, the D.C. Circuit granted a petition to rehear the case en banc.
Hoping to vanquish the "metastasizing" criminal contempt inquiry once and for all as a constitutional overreach, the DOJ argued that Boasberg already has "everything" he once said he needed to refer Noem for a criminal contempt prosecution but chose instead to stage a "pointless spectacle."
The attempt to compel testimony of government lawyers — current and former — is "grossly improper by every measure" and poses "a mortal threat to the attorney-client privilege," the brief said. The two attorneys' testimony "cannot shed light on the Secretary's scienter because neither advised her nor has any other basis to opine on her mens rea," the government added.
"In launching an inquiry into Secretary Noem's alleged criminal scienter, the court has strayed far beyond its proper role in our constitutional scheme, which is limited (at least at this stage) to identifying a potential violation and referring it for investigation and prosecution," the filing said, urging the full D.C. Circuit to either order Boasberg to end the contempt inquiry or force him to issue the referral "without compelling further testimony."