Judge weighs potential contempt prosecution referral for Kristi Noem in El Salvador deportations
A federal judge has ordered declarations from all government officials involved in the decision to send more than 100 Venezuelan men to El Salvador in March to determine whether Department of Homeland Security Secretary Kristi Noem or anyone else should be referred for potential contempt prosecution.
The move comes after a court filing from Trump administration lawyers on Tuesday said that Noem directed their removal despite a federal judge ordering deportation planes turned around.
The order comes after the Department of Justice said in a court filing last week that Noem directed the deportation flights to continue despite the federal judge’s order to return the planes to the U.S.
In the filing on Friday, Boasberg said he is not prepared to terminate his contempt inquiry. He said he must decide if the court order was “clear and reasonably specific,” if “the defendant violated the order,” and if “the violation was willful.”
The government has until Dec. 5 to submit declarations from all the officials involved in the March decision.
DOJ and DHS officials said they conveyed their legal advice to Noem after U.S. District Judge James Boasberg first gave an oral directive and then a written order that sought to block the deportations under the Alien Enemies Act.
"After receiving that legal advice, Secretary Noem directed that the AEA detainees who had been removed from the United States before the Court's order could be transferred to the custody of El Salvador," DOJ said in the filing last week.
That legal advice was given to Joseph Mazzara, the acting general counsel of DHS, by Deputy Attorney General Todd Blanche and former top DOJ official Emil Bove, who then passed it on to Noem, according to the filing.
The filing comes after Judge Boasberg said last week that he is moving forward with his contempt inquiry into whether Trump administration officials violated his March court order.
In March, the Trump administration invoked the AEA -- an 18th-century wartime authority used to remove noncitizens with little-to-no due process -- to deport two planeloads of alleged migrant gang members to the CECOT mega-prison in El Salvador by arguing that the Venezuelan gang Tren de Aragua is a "hybrid criminal state" that is invading the United States.
In a March 15 court hearing, Boasberg issued a temporary restraining order and ordered that the planes carrying the detainees be turned around, but Justice Department attorneys said his oral instructions directing the flight to be returned were defective, and the deportations proceeded as planned.
On Tuesday, DOJ said the legal advice given to Noem "did not violate the court's order, much less constitute contempt."
"Specifically, the Court's written order did not purport to require the return of detainees who had already been removed, and the earlier oral directive was not a binding injunction, especially after the written order," DOJ said
Boasberg's earlier finding that the Trump administration likely acted in contempt was halted for months after an appeals court issued an emergency stay. While a federal appeals court on Friday declined to reinstate Boasberg's original order, the ruling allows him to move forward with his fact-finding inquiry.
