Can the Trump administration avoid prosecution in deportation case?

Washington: A US federal judge has ruled that the Trump administration appears to have wilfully breached his order to recall planes carrying migrants bound for El Salvador, increasing the likelihood that officials could face criminal contempt charges and potential prosecution.

In a decision issued on Wednesday, US District Judge James Boasberg stated that there is probable cause to hold the administration in contempt for ignoring his directive in a case concerning migrants who were sent to a well-known prison in El Salvador. However, the judge is giving the administration an opportunity to correct the violation before proceeding further. The White house has indicated plans to appeal the decision.

This is the latest clash between the Trump administration and the judiciary, which has previously blocked a number of the former president’s far-reaching executive orders on immigration and other issues.

Case linked to 1798 law on deportations

The case involves the Trump administration’s use of the 1798 Alien Enemies Act—a wartime law—to deport Venezuelan migrants it claims are gang members. During an emergency court hearing last month, after several migrants filed lawsuits, Judge Boasberg ordered the government not to deport anyone in its custody under the law.

When it was revealed that some planes had already departed for El Salvador, the judge instructed that the aircraft be turned around and brought back to the US This instruction was not followed.

Shortly after, El Salvador’s President Nayib Bukele confirmed the deportees had arrived in his country. He posted on social media: “Oopsie... too late,” alongside an article referring to Boasberg’s order.

Justice department defends actions

The US Justice Department argued that Boasberg’s order did not apply to planes that had already exited US airspace when the directive was issued.

However, Boasberg countered that the government’s conduct showed “a wilful disregard for its Order.” Even though the US Supreme Court recently overturned his earlier ruling halting the deportations, Boasberg said that did not justify the administration’s defiance.

Chance to remedy violation

The judge said the administration could avoid contempt proceedings if it takes steps to fix the violation—by regaining custody of the deportees who were sent to El Salvador’s prison—so they can challenge their removal. Boasberg noted that the government would not need to release the individuals or transport them back to their home countries, although it is unclear how such a measure would be carried out.

Should the administration fail to comply, Boasberg said he would begin identifying which official or officials decided not to return the planes. He would start by requesting written declarations from the government but could escalate to live testimony under oath or depositions if needed.

If necessary, he could refer the case for prosecution. As it is unlikely that the Justice Department under Trump’s leadership would pursue such a case, the judge stated he would appoint an external attorney to prosecute the contempt case if the government refused.

Experts weigh in

Rory Little, a constitutional law professor at UC Law San Francisco, said the government could easily prevent a contempt ruling.

“Boasberg doesn’t suggest it, but if they put those 200 people back on a plane and brought them back, that would purge the contempt for sure. It’s just that we don’t think Trump’s going to do that,” said Little.

He added that the judge had offered a “much less intrusive method” for the government to comply with the order.

“He is being as careful as he can be to avoid the face-to-face, ugly confrontation that we all think must be coming sooner or later,” Little said.

Second contempt case involving mistaken deportation

The administration is also facing potential contempt proceedings in another case concerning Kilmar Abrego Garcia, a man from Maryland who was mistakenly deported to the El Salvador prison. In that matter, the judge said she is considering whether to launch contempt proceedings, pointing out that officials “appear to have done nothing to aid in Abrego Garcia’s release from custody and return to the United States,” despite a Supreme Court ruling requiring the administration to “facilitate” his release.

History and impact of contempt rulings

Judges have previously held government officials and agencies in contempt for failing to follow court orders, occasionally imposing fines or jail time. However, higher courts have often overturned such rulings. In a 2018 article in the Harvard Law Review, Yale law professor Nicholas Parrillo found 82 contempt rulings by federal judges since World War II.

One example was in a financial dispute over money held in trust for Native American tribes. US District Judge Royce Lamberth found Interior Secretaries Gale Norton (Republican, 2002) and Bruce Babbitt (Democrat, 1999) in contempt and ordered the Interior Department to disconnect its computers on two occasions. The federal appeals court later overturned the contempt charge against Norton and removed Lamberth from the case in 2006.

Even without formal penalties, contempt rulings can still have a strong shaming effect and act as a deterrent, Parrillo noted. However, he also said this only works because it is widely expected that officials will follow court orders.

Legal powers and constitutional concerns

In 1987, a divided US Supreme Court ruled that district court judges have the authority to appoint private attorneys to prosecute criminal contempt cases. Justice Antonin Scalia, dissenting, argued that courts should not have the power to appoint attorneys for such prosecutions.

Stanford Law School professor Robert Weisberg, an expert in criminal procedure, supported Boasberg’s assessment, calling the claim that the government blatantly ignored the order “very convincing.”

“This looks so sound to me that I think it will be difficult to win a reversal, which means we may have a standoff,” he said.

Weisberg also expressed concern that this confrontation could edge the government closer to a constitutional crisis.

“I’m supposed to say, because everybody else does, that we have to be careful about using the term ‘constitutional crisis.’ It means too many things, it’s overused,” he said. “That aside, what the country has been waiting for... some with happy anticipation, is for a flat-out refusal to obey a legal court order. This is pretty close.”

AP inputs