Explaining Judge Boasberg’s finding of probable cause for criminal contempt judgment against Trump regime
The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it. To permit such officials to freely “annul the judgments of the courts of the United States” would not just “destroy the rights acquired under those judgments”; it would make “a solemn mockery” of “the constitution itself.” United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809) (Marshall, C.J.). — from Judge Boasberg’s opinion.
Today, Judge Boasberg issued a slightly complicated opinion and order regarding the Trump executive’s apparent contempt of court in obeying his orders regarding Venezuelans the executive surreptitiously captured and sent to prison in El Salvador. The complexity is actually brilliant.
Boasberg found that there is “probable cause” for finding Trump officials in criminal contempt. Boasberg also set out a procedure for eventually reaching a criminal contempt judgment. That procedure ensures due process for any Trump official fined or jailed while keeping the public spotlight on the Trump executive’s likely refusal to obey the court yet again.
The judge starts and concludes his opinion with arguments directed to reviewing courts, including the Supreme Courts, reminding them that, as a matter of law judicial orders must be obeyed, even if they are later found to have a legal defect. This is because appeal, not noncompliance, is the lawful avenue for those who disagree with judicial orders. In the course of explaining his probable cause finding, Boasberg lays out the factual background, describing the Trump executive’s capture and deportation of Venezuelans to El Salvador, which created the need for immediate judicial action to protect these individuals. He details the Trump executive’s stonewalling at the initial emergency hearing in his court and the regime’s subsequent failure to halt ongoing removals.
It appeared that the Government had transferred members of the Plaintiff class into El Salvador’s custody hours after this Court’s injunction prohibited their deportation under the Proclamation. Worse, boasts by Defendants intimated that they had defied the Court’s Order deliberately and gleefully.
After more description of the Trump executive’s refusal to obey court orders, Boasberg acknowledges that the Supreme Court ruled that the plaintiffs had to seek due process in other venues — courts in jurisdictions where individuals were confined — but emphasizes that the Supreme Court “effectively said that the Constitution flatly prohibits the Government from doing exactly what it did that Saturday, when it secretly loaded people onto planes, kept many of them in the dark about their destination, and raced to spirit them away before they could invoke their due-process rights.”
Boasberg then notes the statutory authority for judges to find and punish disobedience or resistance to their orders. Ultimately, a judgement of criminal contempt requires prosecution that establishes, beyond a reasonable doubt, that a defendant willfully violated a clear and reasonably specific court order. Before referring the matter for prosecution, Boasberg gives the Trump regime a chance to “purge” — correct — their contempt. What that would take, he explains, is the Trump executive could assert custody of the Venezuelans sent to El Salvador prison, that is, that they stop claiming that El Salvador has legal control over them. This would enable Venezuelans now held in El Salvador to file habeas petitions in DC federal trial court.
Boasberg knows that Trump executive is not going to admit it has legal custody of the Venezuelans in El Salvador. So he explains his plan. He will proceed to identify specific individuals who have caused executive branch noncompliance with his orders. He will conduct fact finding, requiring sworn declarations, and if necessary, live witness testimony under oath. This is genius. It keeps everything — the Trump regime’s obstruction and the plight of the Venezuelans— in the public spotlight. This itself might be more effective in getting the regime to get them back from El Salvador than quickly penalizing relatively low level Trump officials. Factfinding would also put any number of Trump lackeys on the spot. If they stonewall, they create further grounds for a criminal contempt judgment.
Once he can name specific officials responsible for the executive branch’s flouting of judicial orders, Boasberg plans to refer them for trial. If the Trump Department of Justice fails to supply a prosecutor or does not prosecute diligently, federal law gives Boasberg the authority to appoint a prosecutor.
Stay tuned ….