The filing by Attorney General Bondi of an emergency appeal to the District of Columbia Circuit of the United States Court of Appeals on the issue of contempt underscores the seriousness with which the Trump administration is taking that possibility.

The motion, docketed on Friday, asks the D.C. Circuit for an “extraordinary” remedy — a writ of mandamus ordering Judge James Boasberg to cease any effort to convict the administration for criminal contempt. Judge Boasberg found “probable cause” for contempt  over the alleged refusal to turn around, following a judicial order, planes full of migrants bound for El Salvador. 

The administration contends that it did not willfully disobey a command from the bench and that the trajectories of the planes, which were dispatched under the aegis of the Alien Enemies Act, are covered by the state secrets privilege. Over the weekend the Supreme Court, which initially overruled an order from Judge Boasberg and allowed the deportations, ordered a freeze in the use of the Alien Enemies Act.

Ms. Bondi’s brief, which is also signed by her top deputies, reasons that Judge Boasberg’s  criminal contempt order “escalates the constitutional stakes by infringing core executive prerogatives.” She argues that forcing the Executive branch to prosecute contempt would serve to “unconstitutionally commandeer the President’s exclusive and preclusive prosecutorial powers.” Judge Boasberg contends that the administration can “purge” the possibility of contempt by recalling the migrants from El Salvador. 

Presidents Trump and Bukele have indicated that such a course is unlikely. Ms. Bondi contends that such an order from the bench “unconstitutionally compels the Executive Branch to persuade or force a foreign sovereign to accede to the court’s demands.” She writes that these “separation-of-powers violations manifestly” warrant intervention from the D.C. Circuit, sometimes reckoned the second most powerful court in America.

The DOJ accuses Judge Boasberg, whom Mr. Trump has endorsed impeaching — that drew a rebuke from Chief Justice Roberts  — of pushing a “nonexistent case of criminal contempt” that amounts to a “grave encroachments on the separation of powers.”   The Department of Justice contends that the migrants are members of the Tren de Aragua gang, a designated terrorist organization that the president is entitled to deport by statute.

The crux of the case for contempt is an oral order Judge Boasberg gave during hearings over the legality of invoking the Alien Enemies Act. He ventured 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 … those people need to be returned to the United States.” Two planes that were allegedly in the air as he spoke those words continued on to El Salvador. A written order followed. 

The Supreme Court, though, ruled that the contest over the use of the Alien Enemies Act did not belong in Judge Boasberg’s courtroom at all. Instead, the Nine ordered the proceedings moved to Texas because the migrants filed their petitions — writs  of habeas corpus — from the Lone Star state. Nevertheless, Judge Boasberg has retained control over these contempt proceedings and other matters associated with the case. 

Judge Boasberg asks the DOJ to identify the individual or individuals who “made the decision not to halt the transfer of class members out of U.S. custody” and vows that if the government does not initiate prosecution, he “will appoint another attorney to prosecute the contempt.” The criminal contempt statutes appear to allow for the appointment of an independent prosecutor if the “interest of justice” demands it. 

In a case from 2023, though, Justice Neil Gorsuch, wrote — albeit in dissent — that “judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.” Ms. Bondi’s brief acknowledges that she is “unlikely to prosecute a criminal referral,” which would mean the appointment of a “private attorney to prosecute the criminal contempt charges.” 

The Supreme Court has held that criminal contempt “is a crime in the ordinary sense” and ought to fall under the president’s constitutional charge to “take care that the laws be faithfully executed.” Specially appointed prosecutors, though, are not unknown. Ms. Bondi accuses Judge Boasberg of seeking to “wrestle this complex matter of foreign affairs away from the Executive by hanging a contempt Sword of Damocles over senior officials.” 

Ms. Bondi argues that Judge Boasberg’s “contempt order dangerously intrudes on core executive prerogatives over foreign affairs and prosecutorial discretion, presenting a classic case for mandamus to maintain the Constitution’s separation of powers.” The power to issue writs of mandamus flows from the All Writs Act of 1798, whose authority the high court invoked on Saturday in stopping deportations under the Alien Enemies Act.