By Jan Wolfe
WASHINGTON, Sept 29 (Reuters) – A US Justice Department lawyer asked an appeals court on Tuesday to terminate a judge’s inquiry into whether Trump administration officials willfully violated a judicial order directing them to stop deportation flights of Venezuelan immigrants to El Salvador.
The three-hour oral argument was the latest development in a long-running standoff between President Donald Trump and US District Judge James Boasberg, who has sought to determine why his order was ignored, in a dispute that has become a test of the judiciary’s power to investigate executive branch decision-making.
DOJ attorney Brett Shumate told the US Court of Appeals for the District of Columbia Circuit during an oral argument in Washington that the criminal contempt probe by Boasberg was “unlawful, unnecessary, and futile.”
“The district court judge here is going beyond the judicial role,” Shumate added.
A three-judge D.C. Circuit panel blocked Boasberg’s contempt probe in a 2-1 ruling earlier this year, but all 11 of the sitting judges on the intermediate court voted to rehear the case. The prominent appeals court has seven Democratic appointees and four Republican appointees.
Some of the judges on Tuesday appeared skeptical of Shumate’s arguments, saying Boasberg had properly invoked a federal rule of criminal procedure that allows a judge to investigate defiance of a court order and refer the matter for prosecution.
Circuit Judge J. Michelle Childs, an appointee of Democratic President Joe Biden, said Boasberg was simply conducting “fact-finding to know what happened and know why there was a violation of the district court’s order, oral and written.”
“The district court has to find out what happened and who was in the room providing the advice,” said Circuit Judge Patricia Millett, who was appointed by Democratic President Barack Obama.
The dispute arose as part of a lawsuit brought by the American Civil Liberties Union on behalf of Venezuelan men deported by the Trump administration under the Alien Enemies Act, with the plaintiffs arguing that the administration acted unlawfully with the deportation flights.
The 1798 law, which has been invoked rarely in US history, gives presidents broad powers to detain and deport non-citizens.
The Venezuelan men at the center of the litigation were released from a Salvadoran prison last year and returned to Venezuela as part of a US-brokered prisoner swap.
Boasberg concluded last year that the administration appeared to have acted “in bad faith” when it hurriedly assembled three deportation flights at the same time that he was conducting emergency court proceedings to assess the legality of the effort.
The judge sought testimony from a high-ranking Justice Department lawyer, as well as a former department attorney who became a whistleblower.
In the 2-1 ruling issued in April, the three-judge panel said Boasberg’s request had encroached on “the autonomy of the executive branch” and “proposes to probe high-level Executive Branch deliberations about matters of national security and diplomacy.”
ACLU lawyer Lee Gelernt said during the hearing that Boasberg had acted courageously and refused to allow the executive branch to thumb its nose at him.
“No prior DOJ or administrator has ever taken these kinds of egregious actions and been so disrespectful to the judiciary,” Gelernt said.
“If you don’t uphold what this district court did, it will send a horrible message,” he said.
(Reporting by Jan Wolfe in Washington; Editing by Alexia Garamfalvi and Daniel Wallis)
