The full U.S. Court of Appeals for the D.C. Circuit spent three hours Tuesday in its ceremonial courtroom weighing a question the Justice Department framed as a collision between the branches and several judges framed as something simpler: whether a district judge may investigate the executive branch for defying his order.
The case is Chief U.S. District Judge James Boasberg's criminal contempt investigation into the March 2025 deportation flights that carried 137 Venezuelan migrants to El Salvador. Justice Department attorney Brett Shumate asked the en banc court to shut the inquiry down, calling it unlawful, unnecessary and futile and saying Boasberg had gone off the rails by taking on the role of investigator to identify which officials, beyond former Homeland Security Secretary Kristi Noem, might share responsibility for the flights.
What the government asked the court to do
Shumate's argument was structural rather than factual. He told the court that investigating crimes is a prosecutor's function, not a judge's, and that a district court lacks authority to probe executive branch decision-making on matters of national security and diplomacy. Permitting the investigation to continue, he said, would deepen an ongoing clash between the branches, especially if Boasberg referred Noem and Justice Department attorneys for prosecution. Even the act of accusing senior officials of contempt, or a judge appointing a special prosecutor, raises separation of powers concerns in the government's telling. The department also asked that the case be assigned to a different judge if it is sent back to the district court.
There is a concession buried in that position. The government's complaint is not that Boasberg got the facts wrong. It is that he went looking for more of them. Noem is the only official the government has identified as responsible, and the department's briefs do not argue that she is innocent of the conduct Boasberg is investigating. They argue that no judge should be asking.
How the case reached the full court
The path to Tuesday's argument ran through a divided panel. On April 14, a three-judge panel ruled 2-1 that Boasberg had abused his discretion by investigating high-level executive branch deliberations about national security and diplomacy, with Judge Neomi Rao writing the majority and Judge Justin Walker joining it. The Justice Department then asked the full court to rehear the dispute, and the D.C. Circuit granted the request, which took the case out of the panel's hands and put it before the court's active judges at once.
The posture shapes what the government has to prove. The department is not appealing a final judgment. It is asking for a writ of mandamus, an extraordinary order that a higher court issues to stop a lower court from acting beyond its authority. Mandamus carries one of the highest bars in federal practice: the petitioner must show a clear and indisputable right to the relief, no other adequate way to obtain it, and that the writ is warranted under the circumstances. Courts grant it sparingly, and losing at this stage would not end the dispute, because the losing side can ask the Supreme Court to take the case. A win for the government would end the investigation without any court ever reaching the merits of the contempt question.
The judges who pushed back
Several members of the en banc court treated the government's framing as backwards. Judge Patricia Millett said the separation of powers runs two ways and is not a one-way street in favor of the executive branch, adding that the Supreme Court has been clear that the contempt power is an inherent power of the courts, necessary for them to function, and that it cannot be the government's tiebreaker.
Judge Robert Wilkins rejected the premise that the executive's concerns about a trial of an executive branch official by a district judge were enough to end the inquiry before it finished. Judge J. Michelle Childs pressed the government on why Boasberg should not be allowed to identify other officials who might share responsibility, raising the possibility that Noem, the one name the government offered, was a sacrificial lamb.
Judge Cornelia Pillard asked whether the government's position would leave courts at the mercy of the executive. The questions sketched the majority's likely concern: a ruling that a judge cannot investigate defiance of his own order means the order's enforcement depends on the branch that violated it.
The judges who agreed with the government
The court's Trump appointees gave the department more of what it came for. Judge Neomi Rao, who wrote the April 14 split decision holding that Boasberg abused his discretion by probing high-level executive branch deliberations about national security and diplomacy, returned to that reasoning. Judge Justin Walker joined that earlier majority. Judge Gregory Katsas told the court that the arrangement the government proposes would only work if the prosecutor were independent of the attorney general's control, a point that cuts against the department's own request rather than for it.
Judge Karen Henderson, the eleventh member of the en banc court, did not participate in the argument. Chief Judge Sri Srinivasan presided along with Judges Wilkins, Millett, Pillard, Rao, Walker, Katsas, Childs, Florence Pan and Bradley Garcia.
The case that started it all
The underlying dispute dates to March 15, 2025, when Trump invoked the 1798 Alien Enemies Act to deport migrants designated, without evidence presented in the proclamation, as members of the Tren de Aragua gang. Boasberg issued a temporary restraining order that day to stop the flights. Two planeloads departed for El Salvador anyway, and the men aboard were transferred to the CECOT mega-prison. Boasberg found probable cause in April 2025 that the administration had acted in bad faith and opened the contempt inquiry, which has been on hold since.
Eighteen months later, the men have left CECOT and many have returned to Venezuela. The only one brought back to the United States is Maryland's Kilmar Abrego Garcia, whose return the government facilitated while attempting, unsuccessfully, to prosecute him. In February, Boasberg ordered the government to help the men return to the United States if they chose, with immigration custody and a chance to contest their gang designations. A three-judge panel expressed doubt Friday about his authority to order their return, since habeas relief is release from detention, not transportation back into the country.
The statute underneath the flights has its own history. The Alien Enemies Act dates to 1798 and had been invoked three times before March 2025, in the War of 1812, World War I and World War II. The March 2025 proclamation applied it to Venezuelan nationals the government designated as members of Tren de Aragua, and that designation sits at the center of everything that followed. The statute allows removal without the immigration hearings the men would otherwise receive, and the factual basis for calling them gang members was not presented in the proclamation or tested in a hearing. Boasberg's temporary restraining order was meant to freeze the removals for two weeks while the courts examined that question. The planes left while the order was in force, which is the act the contempt investigation exists to examine.
The whistleblower account at the center of the inquiry
The ACLU's Lee Gelernt, representing the deported men, urged the court to let Boasberg continue. He warned that ending the investigation would send a horrible message, not just to the district court, and would leave courts unable to hold officials accountable for defying their orders. He cited testimony from former Justice Department attorney Erez Reuveni about a March 14, 2025 meeting in which then-acting Deputy Attorney General Emil Bove advised colleagues to disregard any order blocking removals under the Alien Enemies Act. Bove, now a judge on the Third Circuit, and others in that discussion are the prime targets the investigation could reach, Gelernt said, and he asked the court not to accept Noem as a substitute for them.
That testimony is the reason the government's structural argument and its factual exposure are tangled together. If the contempt inquiry is allowed to resume, it would examine whether officials deliberately treated a court order as optional. If it is shut down, the record of that decision-making stays inside the executive branch, and the district court's finding of probable cause remains a finding with no proceeding attached to it.
What the ruling will decide
If the investigation resumes and produces findings, the available tools are narrower than the phrase criminal contempt suggests. Contempt proceedings require notice to the accused, a hearing and proof beyond a reasonable doubt, and the sanctions run against people rather than institutions: fines, or in principle confinement. Judges almost never jail senior officials, and the practical path in a case like this one is a referral. Boasberg could cite officials for contempt, and the court could send the citations to a prosecutor to pursue. The attorney general controls federal prosecutions, so the government's own lawyers would decide whether to charge former colleagues, which is the futility the department describes when it calls the inquiry pointless. The court could also appoint a special prosecutor, the step Shumate flagged as a constitutional problem, and underneath every option sits the enforcement question: an order against executive officials is executed by an executive branch that has already decided the order was unlawful.
That asymmetry is why the government's briefs spend so much space on consequences. The department's position is not only that the investigation exceeds Boasberg's authority but that allowing it would set a precedent for judicial supervision of executive decision-making in national security cases. The judges who pushed back see the same precedent from the opposite direction. Under the government's rule, the only branch that can investigate a defied order is the branch that defied it.
The D.C. Circuit did not indicate when it will rule. Three outcomes are available. The court could let the investigation proceed, which would put the question of who else is responsible back in Boasberg's hands. It could accept the government's position that the inquiry was unlawful from the start, which would end the probe and leave the order that was defied without a consequence attached. Or it could split the difference in some procedural way, which is often what appellate courts do with questions this size.
Whatever the panel decides, the argument marked a shift in the litigation's center of gravity. The question is no longer only whether the March 2025 flights violated an order. It is whether a federal court can ask who decided to send them. The district case continues on its own track in the meantime, including the return-order dispute that a three-judge panel examined Friday, so the flights of March 2025 are being litigated on two fronts at once.
Primary sources
- Courthouse News Service for the argument, the judges' questions and the underlying case history.
- US News for the April 14 appellate decision, the en banc posture and DOJ's characterization of the contempt inquiry.