Judge Rao’s Ruling on Contempt Is a Humdinger

The command from a federal appeals court that Judge James Boasberg cease his “intrusive” contempt proceedings against the Trump Administration could be a landmark of executive privilege. A two to one ruling from the District of Columbia Circuit ruled that the government holds a “clear and indisputable” right to the termination of those proceedings. The plaintiff American Civil Liberties Union calls the ruling a “blow to the rule of law.”We see it as a stand for the rule of law. Contempt was raised after a series of rulings last March from Judge Boasberg ordering the government to turn around — mid-air — flights carrying deported Venezuelan migrants to El Salvador under the Alien Enemies Act. The departures followed Judge Boasberg’s temporary restraining order enjoining deportations under that 18th century law. The judge reckons that his command was ignored — criminally.Judge Neomi Rao, writing for the panel’s majority, argues that “Criminal contempt is available only for the violation of an order that is clear and specific.” Judge Boasberg’s order “did not clearly and specifically bar the government from transferring plaintiffs into Salvadoran custody.” Vagueness, here and elsewhere in the law, is often reckoned to be a powerful defense. Judge Rao called Judge Boasberg’s probe an “improper investigation.”Judge Rao, an appointee of President Trump, writes that the proceedings Judge Boasberg was eager to begin “improperly threaten an open-ended, freewheeling inquiry into executive branch decision-making on matters of national security that implicate ongoing military and diplomatic initiatives. This judicial intrusion into the autonomy of a coequal department cannot be remedied by a later appeal from a contempt conviction.”Judge Rao reasoned that Judge Boasberg’s order prohibited migrants from being deported, but did not address those already en route to El Salvador. A dissent of some 80 pages written by Judge Michelle Childs fumes that “Contempt of court is a public offense, and the fate of our democratic republic will depend on whether we treat it as such.” Without the contempt power, she writes, the “rule of law is an illusion, a theory that stands upon shifting sands.”The ACLU’s lead attorney, Lee Gelernt, vows that the ACLU will appeal to the full D.C. Circuit and claims that the Circuit’s ruling “kneecapped Judge Boasberg’s effort to determine who willfully violated his order.” The issue could eventually make its way to the Supreme Court, where the justices could be eager to grant certiorari to a case that features a direct conflict between Articles 2 and 3. The fate of the Alien Enemies Act itself could also reach the Nine.At least one member of the high court — Chief Justice Roberts — has already weighed in on the case. Last year he responded to Mr. Trump’s call to impeach Judge Boasberg by declaring that “for more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”Now the 47th president has secured a victory in that process and warded off contempt proceedings that would have cracked open the executive branch to scrutiny. It marks another moment where higher courts have endorsed Mr. Trump on questions of executive power and presidential prerogative — often after district court jurists, like Judge Boasberg, who have taken dimmer views of Mr. Trump’s stance on those questions of constitutional bedrock.

Judge Rao’s Ruling on Contempt Is a Humdinger

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