Appeals court poised to allow contempt probe of DHS deportation flights to El Salvador

WASHINGTON — Most judges on a federal appeals court seemed inclined during oral arguments Tuesday to allow a federal judge to continue investigating Trump officials for possible criminal contempt-of-court charges for defying a judicial order by sending more than 100 Venezuelan men to a brutal Salvadoran prison last year.  

The administration is challenging if U.S. District Judge James Boasberg can continue a contempt investigation after the Justice Department said former Homeland Security Secretary Kristi Noem was the sole official responsible for violating Boasberg’s oral and written orders.

Ending an inquiry would be “unfair” to Noem, “who might be a sacrificial lamb because you have picked who you want to go forward,” Judge J. Michelle Childs said. 

The case stems from a proclamation that President Donald Trump signed in March 2025 that invoked the Alien Enemies Act of 1798 to rapidly deport Venezuelan males 14 years and older who were suspected members of the Tren de Aragua gang. 

The American Civil Liberties Union sued to stop several deportation flights of 137 Venezuelans, and Boasberg issued a temporary restraining order to stop the removals. But the flights landed in El Salvador and the men were detained at a brutal mega-prison known as CECOT for four months before being released in a prison exchange with Venezuela. 

The Department of Justice has only identified Noem as the official who decided to allow the planes to land in El Salvador despite the restraining order.

Boasberg is trying to identify other government officials who may also bear responsibility. The ACLU has argued the officials who provided legal advice, including now-Attorney General Todd Blanche, should be included.

All judges of the U.S. Court of Appeals for the District of Columbia Circuit participated in the rare full-court review. 

They are: Chief Judge Sri Srinivasan and Judges Karen LeCraft Henderson, Patricia A. Millett, Cornelia T.L. Pillard, Robert L. Wilkins, Gregory G. Katsas, Neomi Rao, Justin R. Walker, Childs, Florence Y. Pan, Bradley N. Garcia, Harry T. Edwards, Douglas H. Ginsburg, A. Raymond Randolph and Judith W. Rogers.

Former President Jimmy Carter nominated Edwards; former President Ronald Regan nominated Henderson and Ginsburg; former President George H.W. Bush nominated Randolph; former President Bill Clinton nominated Rogers; former President Barack Obama nominated Srinivasan, Millett, Pillard and Wilkins; Trump nominated Katsas, Rao and Walker in his first term and former President Joe Biden nominated Childs, Pan and Garcia.

Judge not a prosecutor, DOJ says

Representing the Trump administration, Brett A. Shumate, the assistant attorney general leading the DOJ’s Civil Division, argued that Boasberg does not have the authority to investigate possible criminal contempt charges and that role is only for a prosecutor. 

“District judges do not investigate or prosecute crimes,” Shumate said. “That's a role for a prosecutor, and so the purpose of the investigation at this point is no longer, let's figure out who the decisionmaker was. It is now, let's probe the mental state of senior government officials.”

Lee Gelernt, deputy director of the ACLU Immigrants' Rights Project, said the March 2025 order from Boasberg clearly prohibited the Trump administration from transferring the Venezuelan men to CECOT, and that Boasberg should be allowed to conduct his preliminary inquiry to identify any other potential official who violated his ruling.  

“The oral order was crystal clear,” Gelernt said. 

Blance, Bove provided legal advice

Boasberg’s inquiry involves Blanche and Emil Bove, who were both high-ranking DOJ officials at the time. Bove is a judge in the Third Circuit U.S. Court of Appeals.

Blanche and Bove gave legal advice to Joseph Mazzara, then the acting general counsel of the Department of Homeland Security, who informed Noem of Boasberg’s oral and written temporary restraining order that blocked the deportations under the Alien Enemies Act. 

“After receiving that legal advice, Secretary Noem directed that the (Alien Enemies Act) detainees who had been removed from the United States before the Court's order could be transferred to the custody of El Salvador,” according to a filing by DOJ.

According to a June 2025 whistleblower account, Bove told a group of attorneys at the department before the Venezuelan men were removed, that the deportations would still occur and “we may have to say f— you to the courts,” if an order blocking the removals was issued by a judge. 

Before the U.S. Senate Judiciary Committee during his confirmation hearing to become a judge, Bove denied the June 2025 whistleblower account.

Boasberg also wants to hear testimony from the whistleblower, then-DOJ attorney Erez Reuveni, and Drew Ensign, a DOJ attorney who appeared before him in March 2025.

More facts needed

Shumate argued Tuesday that Boasberg already had the information he needed, and that the DOJ already noted that Noem was the government official who ordered the planes to continue to El Salvador.

Childs disagreed and said that there could be officials in that decisionmaking process other than Noem.

Shumate said that all Boasberg had asked the federal government was who made the decision.

“We've provided that information, but somehow that's no longer good enough,” he said. 

Millett agreed with Childs that there seemed to be multiple people involved in the decision that Noem made. 

“It's clear from the declarations that she was receiving legal advice from a number of people within the Justice Department,” Millett said. “Now, if an attorney providing legal advice to the secretary were to tell the secretary, ‘you have the legal authority to f-expletive the court order on this and go ahead and disembark people,’ might it be accurate that that attorney would just as well be in contempt of court as the secretary, potentially?” 

Shumate said that would “depend on the facts.”

“Well, then the district court has to ask some more questions,” she said.