'No question' Boasberg can probe Trump DOJ's potential 'premeditated attempt to fraudulently' dodge 'judicial scrutiny,' lawyers tell court

After the D.C. Circuit Court of Appeals put a federal judge's criminal contempt probe on ice, lawyers for Venezuelan nationals flown out of the U.S. to a "notorious" Salvadoran prison despite a court order blocking those Alien Enemies Act (AEA) deportations claim the Trump administration DOJ's "recycled" arguments in favor of "extraordinary" relief have reached "a dead end."

"Over the past nine months, the government has engaged in an open strategy of 'stonewalling' and 'increasing obstructionism,'" ACLU attorneys representing the plaintiffs in J.G.G. v. Donald J. Trump told the D.C. Circuit on Monday. "Its failure to abide by the district court's TRO [temporary restraining order] meant that more than a hundred men were hurriedly sent without any due process to a notorious Salvadoran prison to be tortured and abused—a point the government does not even contest."

"The Court should not permit further obstruction and delay of the district court's effort to assess which government officials may have willfully violated its order. Mandamus is plainly not appropriate here," the lawyers added.

Chief Judge James Boasberg has tried for months to get to the bottom of whether the Trump administration and various officials willfully violated his March 15 TRO when it pushed ahead with AEA removals of 137 men whom the government alleged were affiliated with the Tren de Aragua gang.

Boasberg, a Barack Obama appointee also once appointed by George W. Bush to the Washington, D.C., Superior Court, had orally ordered the Trump administration to turn around any planes that were in the air, but that did not happen.

Despite the DOJ's argument that the planes were already out of U.S. airspace and the judge lacked jurisdiction, Boasberg in April determined there was probable cause to find the Trump administration in criminal contempt for defying his TRO — an order the U.S. Supreme Court would later vacate.

By August, the DOJ successfully persuaded two D.C. Circuit judges appointed by President Donald Trump to grant rare mandamus relief vacating Boasberg's "contempt-related order."

But if it seemed the Trump administration had warded off the threat for good, the D.C. Circuit dispelled those notions in November.

After a petition was filed with the D.C. Circuit seeking the full — en banc — court's review, the court declined to grant the petition but made clear that Boasberg could continue his contempt inquiry.

"To dispel any doubt, we observe that no member of this court has taken the position that the panel's disposition stands in the way of the district court proceeding just as it intended to do in April, only without the voluntary contempt-avoidance option that has now been overtaken by events," the court said, noting Boasberg was not prevented from his "contempt authority" and that he "remains free to require the government to identify the decision makers who directed the potentially contemptuous actions and to carefully consider next steps."

Boasberg, in turn, scheduled hearings two weeks ago for fired DOJ attorney turned whistleblower Erez Reuveni and Deputy Assistant Attorney General Drew Ensign to shed light on the question at hand: Did DHS Secretary Kristi Noem willfully violate his order under the advice of top DOJ officials and is a criminal contempt referral for prosecution warranted?

In Boasberg's view, declarations submitted by Noem and current and former DOJ higher-ups — Deputy Attorney General Todd Blanche and Emil Bove (who earlier this year served as principal associate deputy attorney general) — were too "cursory" to say anything about "officials' state of mind."

While Noem declared she moved the deportation flights forward before Boasberg issued his order, Blanche stated that on the evening of March 15, he provided "privileged legal advice" to Noem through Acting DHS General Counsel Joseph Mazzara.

Both Blanche and Bove were Trump's criminal defense attorneys before they were installed in the upper echelons of the DOJ in the president's second term.

Bove, now a sitting judge on the 3rd Circuit U.S. Court of Appeals, said the DOJ had "not authorized" him to "disclose privileged information" but that he was "aware of statements" Boasberg made in court as of the evening of March 15, and that he "contributed to privileged legal advice" given to Noem through Blanche and Mazzara.

Reuveni, branded a "disgruntled former employee" by Blanche, caused a stir in June by coming forward with an allegation that Bove had suggested giving an "f— you" to the courts if blocked from carrying out AEA deportations — a claim the DOJ has denied.

Ensign, on the other hand, claimed at the March 15 hearing, which unfolded on a Saturday, that he did "not have additional details [he] can provide at this time" about whether deportation flights were afoot — though the two planes took off during the hearing.

But before Reuveni and Ensign could be questioned in Boasberg's court on Dec. 15 and 16, the DOJ went back to the D.C. Circuit on an emergency basis to again seek a writ of mandamus that could nuke the probe. That worked, at least temporarily, as a three-judge panel led by U.S. Circuit Judges Justin Walker and Neomi Rao, both Trump appointees, issued a stay.

That brings us back to the present day and to the ACLU's arguments that DOJ's protestations don't hold water, especially in light of "scant declarations" and the appearance that the defendants "may have engaged in a premeditated attempt to fraudulently and willfully evade judicial scrutiny, mislead the district court, and ultimately violate its TRO."

Though the Trump administration has asserted Boasberg is running a constitutionally "dubious and troubling" probe while having no authority to appoint himself as "an investigator seeking to identify and root out imagined government misconduct," the plaintiffs' attorneys say there's "no question" the district court can "gather facts regarding indirect criminal contempt under its inherent authority," as the full D.C. Circuit has already indicated as much.

"The Court should accordingly view these recycled arguments that the district court lacked any authority to gather facts as a dead end," the brief opposing mandamus stated, embracing the opportunity to put Ensign under oath to "understand which officials may have engaged in contumacious acts":

The district court thus must determine, for purposes of contempt referral, if the government misled it and whether Ensign was instructed to do so by any of the high-level officials the government says were involved in the ultimate decision to disobey the TRO. The district court also must determine with whom Ensign communicated during the break in the hearing. Given that the planes took off during the hearing, it strains credulity that Ensign was unable to obtain this information. Ensign either made no real attempt to get the information, was purposely kept in the dark by his clients, or was instructed to continue lying or misleading the court about what he knew—or perhaps some combination.