


After attacking judges and repeatedly sidestepping their orders, the Trump administration has accused a federal judge in Washington of escalating tensions between the judicial and executive branches by seeking to hold the White House accountable for its courtroom behavior.
The accusation against the judge, James E. Boasberg, came in a court filing early Friday morning by the Justice Department. In it, department lawyers asked the federal appeals court that sits over Boasberg to prevent him from opening an expansive contempt inquiry into whether the White House violated an order he issued in March to stop flights of Venezuelan migrants from being sent to El Salvador under the authority of a powerful wartime statute.
Much of the filing to the U.S. Court of Appeals for the District of Columbia read like a normal legal brief, laying out the government’s challenge to a judicial order it did not like. But in its opening line, department lawyers made clear that they believed Boasberg’s recent threat to open criminal contempt proceedings in the deportation case represented another salvo in an increasingly bitter battle between the White House and the courts.
“‘Occasions for constitutional confrontation between the two branches should be avoided whenever possible,’” the department lawyers wrote, failing to mention their own role in fostering such confrontations. “The district court’s criminal contempt order instead escalates the constitutional stakes by infringing core executive prerogatives.”
The Justice Department’s attempt to blame Boasberg for raising the temperature came as another federal judge, in another deportation case, has opened her own high-stakes inquiry into whether the administration has violated court orders.
In that case, Judge Paula Xinis announced Tuesday in U.S. District Court in Maryland that the administration in the next two weeks would have to answer questions about why it had so far apparently failed to comply with directions from the Supreme Court to “facilitate” the release of a Maryland man, Kilmar Abrego Garcia, from the same Salvadoran prison to which the Venezuelan migrants had been sent.
All of this and more prompted a conservative Republican jurist, writing for a federal appeals court that reviews Xinis, to scold the Trump administration Thursday for repeatedly taking an aggressive and recalcitrant approach to the courts and to court orders.
“The respect that courts must accord the executive must be reciprocated by the executive’s respect for the courts,” the appellate judge, J. Harvie Wilkinson III, wrote. “Too often today this has not been the case, as calls for impeachment of judges for decisions the executive disfavors and exhortations to disregard court orders sadly illustrate.”
Clearly frustrated by the administration’s serial evasions in the case of the deported Venezuelan migrants, Boasberg gave Trump officials a choice Wednesday: They could provide the men who were sent without hearings to a prison in El Salvador on March 15 the due process they were denied or they could face a searching criminal contempt investigation into who among them was responsible for having violated his original order to halt the flights.
In their filing, Justice Department lawyers told the appeals court in Washington that neither of those options was acceptable. They accused Boasberg of overstepping his authority by seeking, on the one hand, to tell the Trump administration how to conduct its foreign policy and, on the other, by effectively trying to assume the role of an investigating prosecutor.
The Justice Department seemed particularly outraged that Boasberg had said in an order laying out his plans for the contempt proceedings that he would consider appointing an outside prosecutor to pursue criminal charges against administration officials if, indeed, a case was warranted and the department itself refused to bring it.
The federal rules of criminal procedure say that in instances of criminal contempt, courts must first ask “an attorney for the government” to prosecute. But if the government declines the request, the rules maintain, “the court must appoint another attorney to prosecute the contempt.”
The Justice Department sought to push back on the notion that Boasberg could in essence find his own prosecutor to go after people inside the White House.
“District courts cannot outsource prosecutorial power to private citizens,” department lawyers told the appeals court, “insulate them from executive branch control, and then unleash them against the executive branch.”
The department lawyers also reaffirmed their claim that Boasberg’s order had never been violated in the first place.
In doing so, they doubled down on an argument they have made before: that they were paying attention to the judge’s written order, which was posted on the docket well after the deportation flights had departed, not his oral instructions from the bench, which came while the planes were clearly still in the air.
“That’s a heckuva stretch,” Boasberg said last month when the government first sought to differentiate between the two orders.