'Uncharted territory': DOJ picks new fight with judge 'doggedly' pushing contempt probe forward in search of 'imagined government misconduct'

Rather than showing up to court early next week to explain why there should not be a criminal contempt referral for prosecution issued against DHS Secretary Kristi Noem, the DOJ has asked a federal appellate court in Washington, D.C., to shut down the judge "doggedly" pursuing answers on whether Alien Enemies Act (AEA) deportations willfully went forward in March despite an order for planes in the air to turn around.

In an emergency petition for a writ of mandamus, submitted at the U.S. Court of Appeals for the District of Columbia Circuit on Friday — three days before fired DOJ attorney turned whistleblower Erez Reuveni is set to testify — the Trump administration blasted Chief U.S. District Judge James Boasberg for ordering up testimony rather than taking court declarations, which the jurist viewed as "cursory," at face value.

Claiming the revived contempt inquiry pushes "deep into constitutionally uncharted territory," the DOJ described Boasberg's probe as "dubious and troubling," and his latest order "incoherent on its own terms."

"If the district court continues to believe that Defendants violated its TRO, the court is free to refer the matter for potential prosecution. But there is no authority for the court to conduct an independent criminal investigation on its own," the DOJ said. "And its decision to do so here is dubious and troubling, given that Defendants have already provided all of the relevant, non-privileged information, and even the district court— before Defendants' last mandamus petition—had no difficulty reaching a probable-cause determination as to every element of the supposed offense, without any need for further evidence."

Noting that a D.C. Circuit panel with a Trump-appointed majority in August took the rare step of granting the "extraordinary" and "drastic" remedy of a writ of mandamus to vacate Boasberg's "contempt-related order," the DOJ seeks the exact same outcome — despite a full panel opinion that followed in November stating Boasberg "remains free to require the government to identify the decision makers who directed the potentially contemptuous actions and to carefully consider next steps."

Boasberg, a Barack Obama appointee also once appointed by George W. Bush to the Washington, D.C., Superior Court, responded accordingly at the start of the week — a move the DOJ sees as a pointless ratcheting up of a conflict between two of three branches of government.

"The district court's order both usurps executive power and needlessly generates inter-branch conflict by appointing itself as an investigator seeking to identify and root out imagined government misconduct," the DOJ continued.

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As Law&Crime reported, the controversy dates back to March 15, when Boasberg held a hearing on a Saturday and orally issued a temporary restraining order (TRO), blocking the government from carrying out sweeping AEA deportations of Venezuelan nationals to a notorious Salvadoran prison — individuals whom the government alleged were affiliated with the Tren de Aragua gang — and ordering the Trump administration to turn around any planes that were in the air.

The planes did not turn around. Ever since, Boasberg has been trying to get to the bottom of who told whom what, when, and why — that is, the legal basis for apparent non-compliance.

According to Boasberg's latest order, Noem and DOJ higher-ups have only "submitted cursory declarations" providing an explanation under penalty of perjury, necessitating the testimony of fired DOJ attorney Erez Reuveni and Deputy Assistant Attorney General Drew Ensign. The latter claimed at the March 15 hearing that he did "not have additional details [he] can provide at this time" about whether deportation flights were afoot.

While Noem has specifically declared she decided to move the deportations forward before Boasberg issued his order, Deputy Attorney General Todd Blanche, President Trump's former criminal defense lawyer, stated that on the evening of March 15 he provided "privileged legal advice" to Noem through Acting DHS General Counsel Joseph Mazzara.

Concluding that testimony was needed to decide whether there was a "willful violation of the Court's Order" warranting a referral for prosecution, Boasberg set testimony for next week.

The DOJ says it does not want that testimony to take place because it could mean the "likely disclosure of privileged information[.]" Therefore, the Trump administration sought a stay and "extraordinary" and "drastic" mandamus relief.

"Immediate review is particularly appropriate to stave off a looming 'constitutional confrontation' between the Executive and Judicial Branches," the DOJ said, describing Boasberg as "doggedly pursuing an idiosyncratic and misguided," and "ongoing illegal inquiry" into whether the government "committed criminal contempt."

"Defendants did not—and have repeatedly and forthrightly explained why not—but the court has barreled ahead," the filing said, labeling the scheduled proceeding as a "circus" and "spectacle" that "is not a genuine effort to uncover any relevant facts."

In a separate order Friday, Boasberg denied the government's motion to reconsider forcing testimony or to at least significantly limit it.

"To begin, this inquiry is not some academic exercise," Boasberg started his rejection. "Approximately 137 men were spirited out of this country without a hearing and placed in a high-security prison in El Salvador, where many suffered abuse and possible torture, despite this Court's order that they should not be disembarked."

"The question the Court must now answer is whether this occurred via contumacious conduct by Government officials," he added, noting the "en banc D.C. Circuit has authorized this Court to proceed with its contempt inquiry, which requires a consideration of officials' state of mind."