Jack Smith 2.0? Trump Could Face a Special Prosecutor and Contempt Charges for ‘Disobedience’ in Flying Migrants to El Salvador

The ruling by a federal judge that it is “probable” that the Trump administration committed criminal contempt when it refused to turn around El Salvador-bound planes carrying some 250 aliens from Venezuela accused of gang membership is a dramatic escalation in the clash between the 47th president and the judiciary. A special prosecutor — a successor of sorts to Jack Smith— could loom on the horizon. The district court judge, James Boasberg, who has been sparring with President Trump for weeks, writes that the administration’s “willful disobedience of judicial orders” could make “a solemn mockery” of “the Constitution itself.” The judge adds that the parchment “does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it.” At issue are two flights that Mr. Trump’s lieutenants dispatched to El Salvador under the 1798 Alien Enemies Act. The migrants ended up in El Salvador’s notorious Terrorist Confinement Center, what Judge Boasberg calls a “mega-prison.” It is the largest incarceration facility in Latin America.Mr. Trump has, in public pronouncements, lashed out against Judge Boasberg. Since the judge began seeking to block his administration’s actions, the president has referred to him as a “radical left lunatic,” a “constitutional disaster” who is “highly conflicted,” a “grandstander,” and “crooked,” among other imprecations and calumny.Judge Boasberg writes in his 46-page decision on contempt that he “does not reach such conclusions lightly or hastily. Indeed, it has given defendants ample opportunity to explain their actions. None of their responses has been satisfactory.” The regulations that govern federal contempt proceedings mandate that “The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney.” The regulations add that “If the government declines the request, the court must appoint another attorney to prosecute the contempt.” That means a specially appointed prosecutor that resembles a special counsel, albeit one appointed by a judge rather than the attorney general. A charge of criminal contempt would be pardonable by Mr. Trump. Judge Boasberg could opt to pursue civil contempt, which is not within the ambit of the pardon power. Such a path could lead to fines but not prison time. Judge Boasberg’s order announces that he is prepared to begin the process of identifying specific administration officials who could be liable. Judge James Boasberg at Washington, September 15, 2023. National Archives via Wikimedia CommonsA spokeswoman for the Department of Homeland Security, Tricia McLaughlin, posted on X in response to Judge Boasberg’s order: “The Supreme Court already rebuked him. Lawless.” Customarily, the decision whether to take up contempt charges would be the DOJ’s. The administration could appeal to the Supreme Court to pause the inchoate contempt proceedings. A spokesman for Mr. Trump, Steven Cheung, has already announced that the administration plans “to seek immediate appellate relief.”The Supreme Court, though, has already ruled that the case belongs not before Judge Boasberg but in Texas, where the migrants were being held. It also greenlit — for now — Mr. Trump’s use of the Alien Enemies Act, albeit with due process protections. Judge Boasberg has not relinquished the case, and argues that he retains control over the possibility of contempt that transpired in his courtroom.Judge Boasberg writes that the Supreme Court’s ruling that his freeze of the deportations suffered “from a legal defect … does not excuse the Government’s violation.” He cites the “foundational legal precept that every judicial order ‘must be obeyed’ — no matter how ‘erroneous’ it ‘may be’ — until a court reverses it.” He rules that the Trump administration’s “disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies.” The Department of Justice contends that the migrants aboard three planes were members of the Tren de Aragua criminal gang, a designated terrorist organization. During a hearing last month, Judge Boasberg issued an oral order commanding the administration to turn around the planes, two of which were airborne. He followed that with a written order some 45 minutes later. The flights did not turn around. A few hours later, El Salvador’s president, Nayib Bukele, wrote on social media, “Ooopsie … too late.” Judge Boasberg cites that comment, which was approvingly reposted by members of Mr. Trump’s team, as evidence pointing toward willful defiance of his order. Mr. Trump supports the impeachment of Judge Boasberg.The judge’s oral order had consisted of the directive to the government’s lawyers to “inform your clients … that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.” The government has invoked national security to avoid furnishing any further information about the flights. The White House’s immigration tsar, Tom Homan, said on “Fox & Friends”: “I don’t care what the judges think. I don’t care.”That position was elaborated by the White House press secretary, Karoline Leavitt, who explained that “a single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil.” She insists that “the administration did not ‘refuse to comply’ with a court order.” Mr. Bukele, who visited the White House earlier this week for a friendly visit with Mr. Trump, has shown no inclination to return the men and does not appear to be under any pressure from Mr. Trump to do so. Judge Boasberg offers the administration a path to “purge” the looming specter of contempt — by demonstrating compliance with his earlier orders. He explains that “the Government would not need to release any of those individuals, nor would it need to transport them back to the homeland.” Instead, it would need to exert custody over them so as to allow for challenges to their confinement — likely via writs of habeas corpus.

Jack Smith 2.0? Trump Could Face a Special Prosecutor and Contempt Charges for ‘Disobedience’ in Flying Migrants to El Salvador

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