‘Intrusive’: DC Appeals Court Slaps Down President Boasberg – Again

Are you getting tired of President James Boasberg? Stand in line. The DC Circuit Court of Appeals has had to rebuke him for a third time over the chief judge’s obstinacy in pursuing contempt charges against the Trump administration. And Judge Naomi Rao’s frustration has begun to seep through the legal lingo of her ruling. 

For at least the third time, the circuit court has called an end to Boasberg’s attempts to run the ICE and Border Patrol. Rao flat-out ruled that Boasberg has committed an ongoing “abuse of discretion” with his threats of criminal contempt citations:

Chief Judge James Boasberg abused his discretion in forging ahead with criminal contempt proceedings over the March 2025 deportation flights, according to the majority opinion by a three-judge panel from U.S. Court of Appeals for the District of Columbia Circuit.

President Donald Trump’s administration has a “clear and indisputable” right to the termination of the contempt proceedings, Circuit Judge Neomi Rao wrote in the court’s majority opinion.

“The legal error at the heart of these criminal contempt proceedings demonstrates why further investigation by the district court is an abuse of discretion,” Rao wrote. “Criminal contempt is available only for the violation of an order that is clear and specific. (Boasberg’s March 2025 order) did not clearly and specifically bar the government from transferring plaintiffs into Salvadoran custody.”

That may have been Rao at her most gracious. In the summary of the ruling, her impatience rings through more clearly. Rao makes it clear that both the appellate court and the Supreme Court have told Boasberg to knock it off, and she sounds tired of repeating that order:

More than a year ago, the President invoked the Alien Enemies Act against members of Tren de Aragua, a Venezuelan criminal gang and foreign terrorist organization, and ordered that they be detained and removed from the United States. In a series of fast-moving events on March 15, 2025, the government placed a group of alleged gang members, including plaintiffs in this case, on planes to El Salvador. After the planes took off and left the country, the district court ordered the government not to remove the plaintiffs from the United States.

The Supreme Court vacated the district court’s order because it was premised on a legal error and the plaintiffs’ suit was brought in the wrong court. Nonetheless, the district court threatened to hold government officials in criminal contempt unless they complied with the now-vacated order by, for instance, taking back custody of the plaintiffs. We issued a writ of mandamus vacating the court’s first contempt order.

Undeterred, the district court is proceeding with criminal contempt for the government’s decision to transfer the plaintiffs to the custody of El Salvador. To cooperate, the government identified then-Secretary of Homeland Security Kristi Noem as the official responsible for the transfer decision. The district court previously said this was the only information it required to make a referral for prosecution. But the district court has now expanded its inquest and ordered hearings to extract more information from government counsel about exactly what happened last March. The government petitions for mandamus. 

The widening gyre of the district court’s investigation again calls for the extraordinary remedy of mandamus to halt the judicial “impairment of another branch in the performance of its constitutional duties.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 390 (2004) (cleaned up). The district court proposes to probe high-level Executive Branch deliberations about matters of national security and diplomacy. These proceedings are a clear abuse of discretion, as the district court’s order said nothing about transferring custody of the plaintiffs and therefore lacks the clarity to support criminal contempt based on the transfer of custody. Moreover, the government has already provided the name of the responsible official, so further judicial investigation is unnecessary and therefore improper. In these circumstances, mandamus is appropriate to prevent the district court from assuming an antagonistic jurisdiction that encroaches on the autonomy of the Executive Branch.

The key here is the earlier rulings on Boasberg’s restraining order, which was based on supposed violations of the Administrative Procedure Act (APA). Both the DC Circuit and the Supreme Court ruled that the APA did not apply and that any challenge to the status of detainees had to come from a habeas petition. However, such petitions are required to be filed in the jurisdiction of detention, not in the DC Circuit. Boasberg didn’t have the jurisdiction to hear this case, in other words.

Rather than admit that, as Rao relates, Boasberg simply ignored the ruling to abuse his discretion on criminal contempt:

After this court denied the government’s request for an emergency stay, the Supreme Court vacated the TRO. The Court determined that plaintiffs’ challenge to their detention and removal could not be brought under the APA because they “fall within the ‘core’ of the writ of habeas corpus” and therefore must be brought in habeas. Trump v. J.G.G., 145 S. Ct. 1003, 1005–06 (2025) (per curiam) (cleaned up); see also id. at 1007 (Kavanaugh, J., concurring) (explaining “that habeas corpus, not the APA, is the proper vehicle” for the plaintiffs’ claims). Because habeas petitions must be brought in the district of confinement, the Court held the government was likely to succeed on the merits because the District of Columbia was not the proper venue for detainees confined in Texas. Id. at 1005–06.

Despite the Supreme Court’s vacatur of the TRO, the district court forged ahead with criminal contempt proceedings on the theory that the government had violated the TRO by transferring the detainees to Salvadoran custody. Recognizing the vacated TRO could not serve as the basis for civil contempt, the district court nonetheless reasoned that “the fact that the TRO was legally unsound is no obstacle to a [criminal] contempt conviction.”4J.G.G. v. Trump, 778 F. Supp. 3d 24, 39 (D.D.C. 2025). The court found probable cause that the government committed criminal contempt. On the district court’s view, the TRO was a “clear and unequivocal” command “that anyone on a removal flight that had already landed abroad should not be discharged from U.S. custody and turned over to Salvadoran … authorities.” Id. at 46. And the government had “willfully disobeyed” this directive. Id. at 54. 

Rao’s response to that is … That’s not how this works, that’s not how any of this works. Rao then goes on to almost explicitly accuse Boasberg of playing partisan politics from the bench by allowing plaintiffs’ attorneys to participate in a contempt investigation aimed at Trump officials:

Moreover, the district court continues to expand the scope of its investigation because it “certainly intend[s] to find out what happened on” March 15.10 Nov. 19 Hr’g Tr. at 8. Resting nominally on the need to probe Secretary Noem’s willfulness, the court’s hearings also would allow plaintiffs’ counsel to question government officials. Hearing Order at 2. Plaintiffs’ counsel are of course not disinterested and in fact are continuing to seek the return of the expelled plaintiffs through a habeas corpus class action. See, e.g., J.G.G. v. Trump, 2025 WL 3706685 (D.D.C. Dec. 22, 2025). Interested counsel are barred from participating in the prosecution of criminal contempt, as the district court recognized. This prohibition reflects the risk that interested parties may use the prosecutorial power for ends other than the “attainment of justice,” such as “gather[ing] information of use” in other lawsuits. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 790, 806, 814 (1987).

The participation of opposing counsel in the investigation of criminal contempt is similarly improper in these circumstances. Enabling interested plaintiffs to wield the sword of coercive investigation creates opportunities for “private interest to influence the discharge of public duty.” Id. at 805. 

Judge Walker’s concurrence doesn’t go quite that far. However, he insinuates that Boasberg is being less than honest about his earlier rulings, especially in transforming a broader oral order into a narrower written order. Boasberg claims that both apply, but as Walker points out, Boasberg said at the time that he would write an order that would replace his oral order, which mooted the latter as soon as the former was published. 

Will this be enough to ‘impeach’ President Boasberg? Stay tuned. I suspect he will not take this well and that the Supreme Court will have to backstop Rao and the DC Circuit once again. But for now, the Boasberg administration has been dismissed. 

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