Because it’s not going to be held in the district(s) they live in, or even in any district in the US. It’s going to be held in a Salvatorean prison.
The judge is still going to be chosen by the judicial branch - probably by the district where SCOTUS said the original case should have been been filed .Texas, I think it was.
Or the government will come up with some other way to comply - if it wants to.
March 15, 9:40 am. Judge Basberg in D.C. enters ex parte restraining order (TRO) covering five named plaintiffs, then being detained in Texas:
Around 8:00 a.m., this Court learned that it had drawn the case… Chambers then reached out to locate Government counsel. Less than an hour later, Plaintiffs’ counsel informed chambers that at least one Plaintiff was reportedly already aboard a removal flight. Having not yet heard from the Government, and given the “exigent circumstances” prompting the need to freeze in place the status quo until a hearing could be held, the Court entered an ex parte TRO preventing Defendants from removing the five Plaintiffs for 14 days. See Minute Order of Mar. 15, 9:40 a.m. Not long after the TRO issued at 9:40 a.m., Government counsel informed chambers by email that the TRO “ha[d] been disseminated to the relevant executive branch agencies.”
March 15, ?? pm. Three named plaintiffs are removed from one or more planes:
After J.L.G.O. was on the plane for what seemed like 30 minutes to one hour, an officer
got on the plane and called out five names, including J.L.G.O. The officer told J.L.G.O.
to get off the plane. After J.L.G.O. got off the plane, one of the five men asked the
officer what was going to happen to them. The officer said that the group had just won
the lottery and laughed.
G.F.F. informed me that he was loaded onto a plane in the afternoon. G.F.F. was on a plane
for about forty minutes to an hour while other individuals were being loaded onto the plane.
He described the plane as “chaos,” people were crying and frightened. After about forty
minutes to an hour, a guard boarded the plane and called G.F.F.’s name and three or four
others. When G.F.F. inquired as to what was going on, he was told he had “just won the
lottery.”
On March 15, 2025, ICE again prepared J.A.V. to be put on a plane, along with a group of
other Venezuelan ICE detainees. He was transported by bus to another facility where the
group of detainees were loaded onto a plane, except for J.A.V. and another individual. ICE
officers said that he had “won the lottery.” Several other individuals were subsequently removed from the plane after boarding, before it took off. J.A.V. was returned to El Valle
that night.
March 15, 5 pm. Court hearing where government asks the court to rescind the order (wrong venue - plaintiffs were then being held in Texas and this court is in D.C.), plaintiffs ask for broader order covering a class of plaintiffs not just the 5 named. Government lawyer in D.C. court is out of the loop as to what is going on in Texas.
March 15, around 5:20pm, one plane takes off for El Salvador, potentially with up to two named plaintiffs aboard.
March 15, around 5:45pm, another plane takes off for El Salvador, potentially with up to two named plaintiffs aboard.
March 15, before 6:45 pm. Both planes have left U.S. airspace.
March 15, between 6 pm and 6:45 pm. Judge issues verbal TRO for whole class, not just 5 named plaintiffs. Government lawyer in D.C. court is out of the loop as to what happened in Texas. 6:45 pm, Judge verbally clarifies government to do what they have to do to comply, be it turn planes around mid-flight or simply not disembark passengers.
March 15, 7:25 pm. Judge issues written TRO.
March 15, 7:37 pm. One plane lands in Honduras for a short layover.
March 15, 8:10 pm. The other plane lands in Honduras for a short layover.
March 16, shortly after midnight. Both planes land in El Salvador and passengers are handed over to El Salvador. At least two passengers (neither a named plaintiff) are flown back to the U.S. because El Salvadorian authorities refuse to accept them - a Nicaraguan man and a Venezuelan woman.
April 7. Supreme Court rules that both TROs are invalid as the D.C. judge never had jurisdiction (under the APA), the proper court would have been the federal court in the Texas district while plaintiffs were detained in Texas (habeas proceeding).
~Max
Legal arguments made by the government:
The temporary restraining orders technically only prohibited the government from removing plaintiffs from the U.S., and by the time the second class-wide restraining order was issued, the planes had already left U.S. airspace. * does not address the two named plaintiffs who were deported in violation of the 9:40 am order
The court never had jurisdiction so its orders never carried force of law.
I assume the govt also argues they made a legally sufficient effort to comply with the first TRO covering the five named plaintiffs, given the rushed circumstances.
~Max
Judge Boasberg makes fairly good arguments about the rule of law and cites precedent that parties can be held in contempt even when the original order is later found to be defective. I’ll have to read his cites at some point as I wonder whether the underlying rationale makes sense in the context of this case.
Certainly I do not agree that a judge can issue an order for anything and then hold the person in contempt for refusing to comply. If a judge orders me to commit a murder, I refuse, then I get that order invalidated, I shouldn’t be punished for refusing to commit a murder during the short period of time when the order “stood”.
And questions of venue are even more curious. I think even private parties don’t have to comply with court orders, and can’t be held in contempt, if they get the order declared void for lack of jurisdiction on appeal. But I recall reading something about a special pleading or your mere appearance in court counts as voluntary submission to the court’s jurisdiction.
And then the United States is not like other parties. It is a coequal branch of government to the courts, and a sovereign power. The United States cannot be held in contempt by the United States; it seems to me Judge Boasberg must employ the unstated legal fiction that the United States never violates the law and his order had the force of law and if specific officials willingly took actions contrary to his order, they were not acting in official capacity and therefore can be held in contempt. But the Supreme Court determined venue was improper; if Judge Boasberg never had the power to issue the first TRO, we lose the basis for our assumption that the United States would never violate the order. And honestly, it makes a lot more sense to say the United States never thought Judge Boasberg had the power to issue the TRO.
~Max
There’s a general legal principle that any situation with dueling interpretations should go to the option that minimizes harm.
If the executive branch isn’t confident about things like whether a verbal order matters, whether the judge has jurisdiction once the plane is out of the country, etc. when it is being told by said judge to pause the transport of a suspected criminal to a 3rd world prison, after having been given no trial nor other means of defending himself, then they should opt for the minimal harm.
What happens if they obey the judge? The man stays in custody or at least legal jeopardy until the legal question is answered. And what happens if they disobey the judge? A, potentially innocent man ends up in a 3rd world prison, and there’s potentially no way to remedy the situation.
Likewise with your example, the judge has ordered a murder. You’re not confident that the judge’s order is legal - it is after all a request to commit a known and well established crime.
If you disobey the judge, what happens? Then the man lives for a while longer, until the judge’s order is reviewed by a higher court and an answer is arrived at. The man can still be murdered another day. But if you do obey the judge, and he turns out to have been in the wrong, well… You certainly can’t un-murder the man.
I can imagine that there are cases where the principle of least harm requires some tight logic and no one can be certain of the right answer.
Neither of these is one of those examples.
Realistically, the only meaningful thing the judge could do from here is charge the President himself. Anyone else could just be pardoned.
I have more to say about that but insufficient time at the moment.
So I’ll just note that the Supreme Court is an appellate court. To the extent that one might view it as the only court in the land that might have the position to call up and question the President, that’s not how the Supreme Court and the legal system have organized the judicial system. Calling people in to answer questions is a thing done by the lowest courts and everything past that is just a formal review of that.
Someone like Boasberg would always be the person to call the President in to answer questions. That power extends as the arm of the Supreme Court, with the duty to enforce the law. Whether he has the right to do it is a question of separation of powers, not of relative level.
Trump waited four years before granting clemency for the people who rioted on his behalf in 2021.
If I was the potential target of a contempt of court jailing, I wouldn’t be relying too strongly on Trump saving me. Trump apparently views loyalty as a one-way street.
Well, since he wasn’t President during those 4 years, I’m not surprised.
He was for two weeks of those four years. He could’ve pardoned everyone pre-emptively on January 7.
That said, motherfucker is way more unhinged now than he was even in January 2021. I wouldn’t be surprised to see immediate pardons, or even pre-emptive pardons, at any point including this morning.
Plenty of Presidents issue pardons on their last day in office. Trump had the opportunity.
At the time, Trump couldn’t be sure that pardoning those rioters wouldn’t be considered treason. His second impeachment had just cleared the house and it’s quite possible that if Trump had pardoned those who attacked the Capitol, McConnell might not have been able to handle the Senate.
Inciting the riot might have been considered treason. I don’t see how issuing pardons after the fact would have been.
But I take your point. If Trump had pardoned the rioter, that might have been the tipping point for some Senators to decide to impeach him for the riot.
Or, as an alternative theory, Trump might have decided that the rioters deserved to go to prison. Not for trying to overthrow the government on his behalf - but for failing in their attempt. Winners have legal immunity; losers go to prison.
Getting back to my previous point, either argument suggests that Trump might decide to not pardon any government officials (other than himself) who get cited for contempt of court for following his orders. If I was one of those government officials, I certainly would not be relying on Trump.
That said, I’m not an official in the Trump administration. I lack the requisite blind faith that Donald Trump is the chosen one. Actual government officials might jump off the cliff when Trump tells them to and trust in Trump to save them.
There’s a general legal principle that any situation with dueling interpretations should go to the option that minimizes harm. If the executive branch isn’t confident about things like whether a verbal order matters, whether the judge has jurisdiction… then they should opt for the minimal harm.
The question is not what the executive branch should or should not have done, it is whether an Article III court has the power to charge officials with contempt in this instance. While harm reduction is an equitable principle that guides judges who exercise equitable powers (such as restraining orders), contempt is a legal power. These are two independent powers of the court. Equity is all about making people whole and dealing justice. Law is about making sure rules are followed, consequences be damned. In fact law is so unfair they invented equitable powers to soften the injustice. In many cases a court can issue a harmful restraining order under its equity powers, then punish a party for noncompliance with contempt, which is a legal power.
For an example in a materially different context, say a court receives fabricated allegations that Joe is abusing one of his children. The Court issues an emergency restraining order against Joe which prevents him from seeing this particular child for 24 hours. Joe’s lawyer protests that Joe lives in a different county and the court can’t touch him, but notifies Joe of the order. Joe himself knows he hasn’t abused his kid, reasons that the order is invalid (a mistake on his part) and would cause more harm if followed, and actually ignores the order. The next day the guardian ad litem proves the court has jurisdiction after all, but Joe’s lawyer proves the allegations were fabricated and gets the order rescinded. The court is well within its power to hold Joe in contempt for violating the restraining order, esp. if there’s a pattern of evading court orders. Very different situation than the deportation case, but I hope this illustrates why ‘opting for minimal harm’ is not a sufficient answer.
The underlying rationale is that we don’t want your average Joe second-guessing the court’s interpretation of the law. We must have rule of law. Joe is not a judge and probably isn’t a lawyer. The public has not given Joe the awesome responsibility of interpreting the law. The courts do not owe it to respect or defer to Joe’s interpretation of the law when it comes to what he can or cannot do.
But the executive branch is not your average Joe. The executive branch (specifically, the President) is empowered by the public with the awesome responsibility of interpreting the law, incident to his “executive power”; for it is necessary to interpret the law to execute or enforce it. Article III courts do owe the executive branch some measure of respect and deference, since the executive power is co-equal to the judicial power. However this deference has limits, in that the judicial branch - not the executive branch - retains the power to resolve cases and controversies arising under the law.
~Max
Then your discussion of judicially ordered murder and child abuse are both irrelevant to the discussion. We know why court orders are merited. We’re both happy with it in the average case and no one’s debating otherwise.
To be sure, the Executive branch must make some best guesses to best and most reasonable interpretation, in order to function smoothly. The government would break down if every question by every clerk, in the whole Executive branch, had to run any question that popped into their head over to the Supreme Court for a quick ruling.
But, likewise, the Executive branch gets some wiggle room on how to use the budget that it’s given by Congress. And likewise, the judicial branch has some wiggle room to deputize people and to have them arrested.
There’s some spillage throughout the government.
But, there’s no question about who is supreme. In matters of the Budget, the Legislature is supreme. In matters of the interpretation of the law, the Judicial branch is supreme. That’s as solid and unquestionable as it gets.
Minus a judge, yes, the Executive branch has wiggle room. Once you add a judge in, with his ranking interpretation in, that takes a back seat. The Executive might be able to make some complaint that they’re not being given due deference, but that’s an argument to the appellate. Until they have the deference granted by some court, their interpretations are secondary and they’re on the hook to take the approach of least harm while waiting for the overturn that they expect.
In terms of precedence of interpretation, I don’t see any argument that somehow the Executive branch would ever have priority over the branch who is supremely encharged with that task.
But so yes, the sole question is whether they can be charged with contempt of court.
So, first, let’s ask whether the Executive Branch can be charged for crimes.
To that, the answer is yes. If the President shoots a man in the middle of a public square and assaults his wife, he can be arrested and charged for those crimes - presuming there to be no valid state purpose to either of these acts.
And certainly if the President can be charged for crimes then his subordinates can, as well.
Is there any reason to believe that there are crimes that can be charged and others which cannot be?
To my understanding, at the moment, we’ve already seen the only criteria. Quoting from above, “he can be arrested and charged for those crimes - presuming there to be no valid state purpose to either of these acts.”
To my knowledge, there’s nothing about the type of the crime that matters. If the President were to murder a man that he had probable cause to believe was a foreign adversary on a destructive, military mission, then so be it. The President is immune from murder, manslaughter, or any other concern. Likewise, if Congress passed a law to say that people could be shot, simply for trespassing on military land, then the President could arbitrarily shoot any trespasser and suffer no consequences.
Shooting and killing people, in service to the country, is completely aboveboard and the Executive and his agents are immune from prosecution, to the extent that they were - in fact - doing so in the course of their regular duties.
Likewise, the President could be charged with jaywalking - if done out of laziness and contempt for the average citizen - or immune, if done because of the need to deal with a matter of national security.
But so, what is within the scope of the President’s duties, and what is outside of it?
By Oath, he is bound to uphold the laws of the nation and to defend the Constitution.
Given that we are discussing the 5th Amendment, acting to deprive a person of Habeas Corpus does not feel like a region of immunity. Whether Boasberg had jurisdiction or not, he was working to ensure Habeas Corpus and the Executive has sworn an Oath to do likewise. There’s no duty of the President larger nor more pressing than ensuring every one of the ten items of the Bill of Rights and the Constitution.
It is certainly not a matter to be taken lightly or treated like a game, and that does appear to have been the Executive’s take on it.
Can you explain why you think those two hypotheticals are irrelevant? In the one case, I think the court has no power to hold the violator in contempt. In the second, I think the court has that power.
I disagree. Just because someone is a judge does not mean they have the authority to hold the executive branch in contempt for refusing any order. If the judge ordered you to murder your mother, and you refused, and an appeals court vacates the order, you can’t be lawfully held in contempt. Why? Because the judge’s order is legally void. It never carried force of law because the judge never had the power or authority to order you to commit a murder.
Note that unlike the Supreme Court, the judicial power (including any contempt power) is vested in inferior courts by Acts of Congress, rather than the Constitution itself. Look at the contempt statute, 14 USC 401:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as-
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
ETA: You have a great argument but it seems to rely on the premise that the judge is, in fact, exercising the judicial power of the United States. Just because he issues an order does not mean his order carries force of law. The Supreme Court, on 4/7/25, held that
“We grant the application and vacate the TROs… The March 15, 2025 minute orders granting a temporary restraining order and March 28, 2025 extension of the United States District Court for the District of Columbia, case No. 1:25-cv-766, are vacated.”
https://www.supremecourt.gov/opinions/24pdf/24a931_2c83.pdf
Vacated, not stayed. To me that implies that they never carried force of law, the judge never had the authority to issue the orders, &etc.
~Max
Because 1) neither you nor Joe is a member of the Executive branch so if the brunt of the conversation is on immunity, deference, the co-equal rights to interpret law, etc. then your case and Trump’s case are not equivalent, and 2) saying what the end result probably will be in the future after the course of 5 years and 3 layers of judicial decisions has no bearing on what one should do today.
Yes, the Supreme Court may slap down the judge and rule that he’s incorrect. That’s their right. But it’s solely their right. Neither you, Joe, nor the President has any right to act on their own imaginary vision of what the Supreme Court will choose in the future. They either need to accept a ruling or appeal it. If they’re appealing, then they must take the path of least harm.
A judge has the right, today, to say, “I am holding you in contempt”. Your opinion that said judge is wrong is not a reality, it’s an opinion. And in the future, it may be that the Supreme Court agrees with your position. And in the nearest future, the appeals court might void or delay the judge’s order to arrest you for contempt.
But likewise, they all might decide against you. Your opinion was - like most opinions - foolishness, not wisdom.
Acting like you know the future is the very definition of not acting with proper concern for minimalizing harm. You must, at every stage, treat the potential outcome of decisions coming out against you. You don’t have to assume that it will, but you must act as though all outcomes are plausible.
Colonel Custer is famous for testing how deep a river was by simply jumping in and finding out whether he stood or drowned. He’s also famous for his last stand. Faith-based decision making isn’t a legitimate legal strategy.
Judge Boasberg’s argument:
Spoiler (click to show/hide)
One might nonetheless ask how this inquiry into compliance is able to proceed at all given that the Supreme Court vacated the TRO after the events in question. That Court’s later determination that the TRO suffered from a legal defect, however, does not excuse the
Government’s violation. Instead, it is a foundational legal precept that every judicial order “must be obeyed” — no matter how “erroneous” it “may be” — until a court reverses it. Walker v. City of Birmingham, 388 U.S. 307, 314 (1967). If a party chooses to disobey the order — rather than wait for it to be reversed through the judicial process — such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order. See id. at 314, 320. That foundational “rule of law” answers not just how this compliance inquiry can proceed, but why it must. See id. at 320. The rule “reflects a belief that in the fair administration of justice no man can be judge in his own case,” no matter how “exalted his station” or “righteous his motives.” Id. at 320–21.
I would concede if the rule cited applied as stated in the present context, but it doesn’t. The Walker court summarized a rule from an earlier case,
Spoiler (click to show/hide)
Howat v. Kansas, 258 U. S. 181, was decided by this Court almost 50 years ago. That was a case in which people had been punished by a Kansas trial court for refusing to obey an anti-strike injunction issued under the state industrial relations act. They had claimed a right to disobey the court’s order upon the ground that the state statute and the injunction based upon it were invalid under the Federal Constitution. The Supreme Court of Kansas had affirmed the judgment, holding that the trial court “had general power to issue injunctions in equity and that, even if its exercise of the power was erroneous, the injunction was not void, and the defendants were precluded from attacking it in this collateral proceeding…, that, if the injunction was erroneous, jurisdiction was not thereby forfeited, that the error was subject to correction only by the ordinary method of appeal, and disobedience to the order constituted contempt.” 258 U.S., at 189.
This Court, in dismissing the writ of error, not only unanimously accepted but fully approved the validity of the rule of state law upon which the judgment of the Kansas court was grounded:“An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.”
The rule of state law accepted and approved in Howat v. Kansas is consistent with the rule of law followed by the federal courts.5
- Brougham v. Oceanic Steam Navigation Co., 205 F. 857; Trickett
v. Kaw Valley DrainageDist., 25 F. 2d 851, cert. denied, 278 U. S.
624; O’Hearne v. United States, 62 App. D. C. 285, 66 F. 2d 933,
cert. denied, 290 U. S. 683; Locke v. United States, 75 F. 2d 157, cert.
denied, 295 U. S. 733; McCann v. New York Stock Exchange, 80 F.
2d 211, cert. denied sub nom. McCann v. Leibell, 299 U. S. 603;
McLeod v. Majors, 102 F. 2d 128; Kasper v. Brittain, 245 F. 2d 92, cert. denied, 355 U. S. 834. See also Ex parte Rowland, 104 U. S.
604; In re Ayers, 123 U. S. 443; In re Burrus, 136 U. S. 586; United
States v. Shipp, 203 U. S. 563; United States v. Mine Workers,
330 U. S.258.
https://tile.loc.gov/storage-services/service/ll/usrep/usrep388/usrep388307/usrep388307.pdf
In the present case the TRO was unduly issued by a court of limited jurisdiction with equity powers and pleadings improperly invoking its action, and served upon persons made parties therein but not within the jurisdiction of the court. So it seems to me the Walker rule does not apply in this case.
Error is very different than lack of jurisdiction. You must follow an erroneous court order, but if the court doesn’t have jurisdiction over you, that literally means it has no authority over you.
Indeed I looked at some of the federal cases cited in footnote 5 as precedent for the rule Boasberg seeks to apply. They make a clear distinction between court orders which are erroneous, and where there is a lack of jurisdiction. A common citation is to this old Supreme Court case, Ex parte Fisk, 113 U.S. 713 (1885), which directly contradicts Judge Boasberg’s argument:
The jurisdiction of this court is always challenged in cases of this general character, and often successfully. There can be no doubt of the proposition that the exercise of the power of punishment for contempt of their orders by courts of general jurisdiction is not subject to review by writ of error, or appeal to this court. Nor is there, in the system of federal jurisprudence, any relief against such orders, when the court has authority to make them, except through the court making the order, or possibly by the exercise of the pardoning power. This principle has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments, and orders necessary to the due administration of law, and the protection of the rights of suitors. When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void.
In the present case, the Supreme Court has already determined that Judge Boasberg had no authority to issue either temporary restraining order. Therefore, it follows, Judge Boasberg’s order punishing for contempt is equally void.
~Max
As I recall, he was also famous for graduating last in his class at West Point.
You had better tell that to Judge Boasberg, then. In his memorandum he specifically discusses the case of orders like these that are “transparently invalid”.