Judges Neomi Rao and Justin Walker of the U.S. Court of Appeals for the D.C. Circuit on Friday night blocked D.C. District Court Chief Judge James Boasberg from beginning his scheduled Alien Enemies Act case contempt proceedings next week.
Judge J. Michelle Childs, a Biden appointee, would not have granted the stay.
The “administrative stay” issued by two Trump appointees on the appeals court after the close of business on Friday blocking Boasberg’s contempt proceedings echoed a similar “administrative stay” issued by two Trump appointees on the appeals court after the close of business on a Friday blocking Boasberg’s contempt proceedings back in April — a move that ultimately delayed the district court’s effort for seven months.
Friday’s order, then, is ultimately just the latest of three decisions from two Trump appointees on the D.C. Circuit that have slowed Boasberg in his effort to do a fundamental task of a district court judge — deciding whether he is going to hold someone in contempt for violating his orders.
Here, that task does have a more stark target, to be sure. A contempt finding could lead to Boasberg referring one or more members of the Trump administration for the possibility of criminal prosecution as a result of the administration’s actions over a weekend in mid-March, when the Trump administration started deporting people under President Donald Trump’s Alien Enemies Act proclamation.
Boasberg, an Obama appointee, originally began looking into whether the Trump administration had violated his March 15 orders in the original Alien Enemies Act lawsuit on March 17 — two days after multiple planes carrying people being deporting under the AEA proclamation continued on to El Salvador over the weekend despite his order that they be turned around.
That inquiry led to a finding of “probable cause” on April 16 that the Trump administration was in contempt of his orders. When the Trump administration appealed and sought a stay of Boasberg’s follow-up order to that finding, the D.C. Circuit’s Trump appointees stepped in again.
On April 18, at 7:31 p.m. that Friday night, Rao and Judge Gregory Katsas issued an “administrative stay,” blocking Boasberg’s order. Judge Cornelia Pillard, an Obama appointee, noted that she would not have granted the stay.
That panel did not rule on DOJ’s request in that appeal until August 8. When it did, Katsas and Rao — over Pillard’s dissent — issued a writ of mandamus, in essence, tossing out Boasberg’s contempt-related order from April.
It wasn’t until November 14 that the full D.C. Circuit, having been asked to reconsider the panel’s decision en banc, denied that request, letting the panel ruling stand for various reasons discussed by Law Dork at the time — most notably because the panel ruling still allowed Boasberg to proceed with his contempt inquiry under the guidance given by the appeals court. In short, the denial of en banc review sent the matter back to Boasberg.
As discussed here at the time, the en banc denial also provided significant information about the view of the full 11-judge court:
[A]s Judge Florence Pan, a Biden appointee, wrote in dissent, “a majority of the full court does not believe that the district court was in the wrong.” This is so, Pan explained, because, in addition to three dissenting judges on Friday, an opinion from three judges who voted against rehearing the case en banc nonetheless agreed on that point. With those six votes on the 11-judge court, “a majority of the en banc court believes that the panel majority erred when it issued the writ of mandamus.“
With that backing then, Boasberg moved quickly, declaring at a November 19 hearing that “justice require[d]” him to continue with the contempt inquiry. At that hearing, he said he planned to hold a hearing with witnesses to determine the path forward.
A week later, DOJ and the lawyers from the ACLU representing those originally targeted by the AEA proclamation submitted information about who made decisions regarding the AEA flights and who should be considered to be called as witnesses in any contempt proceedings, respectively.
All of which brings matters to this week.
On December 8, Boasberg set hearings for December 15 and 16 to get testimony from two of those involved in the cases — fired DOJ lawyer-turned-whistleblower Erez Reuveni and DOJ lawyer Drew Ensign, who had appeared before Boasberg on March 15. Two days later, DOJ asked Boasberg to reconsider that decision.
On Friday, DOJ again asked the D.C. Circuit to issue a writ of mandamus blocking Boasberg’s contempt inquiry. DOJ also then asked Boasberg to stay proceedings until there was a ruling on the mandamus request. Boasberg quickly denied both requests before him.
Then, at 1:11 p.m. Friday, DOJ’s lawyers asked for a stay pending a decision on the mandamus request or an administrative stay. And, DOJ asked for it to be issued by 5:00 pm. Friday. The ACLU lawyers opposed the request, noting, “These proceedings have been on hold for almost eight months.“
At 5:39 p.m. Friday, Rao and Walker granted the “administrative” stay, putting Boasberg’s accountability efforts on hold yet again.
