WASHINGTON — Most judges on a federal appeals court seemed inclined during oral arguments Tuesday to allow a federal judge to continue investigating Trump officials for possible criminal contempt-of-court charges for defying a judicial order by sending more than 100 Venezuelan men to a brutal Salvadoran prison last year.  

The administration is challenging if U.S. District Judge James Boasberg can continue a contempt investigation after the Justice Department said former Homeland Security Secretary Kristi Noem was the sole official responsible for violating Boasberg’s oral and written orders.

Ending an inquiry would be “unfair” to Noem, “who might be a sacrificial lamb because you have picked who you want to go forward,” Judge J. Michelle Childs said. 

The case stems from a proclamation that President Donald Trump signed in March 2025 that invoked the Alien Enemies Act of 1798 to rapidly deport Venezuelan males 14 years and older who were suspected members of the Tren de Aragua gang. 

The American Civil Liberties Union sued to stop several deportation flights of 137 Venezuelans, and Boasberg issued a temporary restraining order to stop the removals. But the flights landed in El Salvador and the men were detained at a brutal mega-prison known as CECOT for four months before being released in a prison exchange with Venezuela. 

The Department of Justice has only identified Noem as the official who decided to allow the planes to land in El Salvador despite the restraining order.

Boasberg is trying to identify other government officials who may also bear responsibility. The ACLU has argued the officials who provided legal advice, including now-Attorney General Todd Blanche, should be included.

All judges of the U.S. Court of Appeals for the District of Columbia Circuit participated in the rare full-court review. 

They are: Chief Judge Sri Srinivasan and Judges Karen LeCraft Henderson, Patricia A. Millett, Cornelia T.L. Pillard, Robert L. Wilkins, Gregory G. Katsas, Neomi Rao, Justin R. Walker, Childs, Florence Y. Pan, Bradley N. Garcia, Harry T. Edwards, Douglas H. Ginsburg, A. Raymond Randolph and Judith W. Rogers.

Former President Jimmy Carter nominated Edwards; former President Ronald Regan nominated Henderson and Ginsburg; former President George H.W. Bush nominated Randolph; former President Bill Clinton nominated Rogers; former President Barack Obama nominated Srinivasan, Millett, Pillard and Wilkins; Trump nominated Katsas, Rao and Walker in his first term and former President Joe Biden nominated Childs, Pan and Garcia.

Judge not a prosecutor, DOJ says

Representing the Trump administration, Brett A. Shumate, the assistant attorney general leading the DOJ’s Civil Division, argued that Boasberg does not have the authority to investigate possible criminal contempt charges and that role is only for a prosecutor. 

“District judges do not investigate or prosecute crimes,” Shumate said. “That’s a role for a prosecutor, and so the purpose of the investigation at this point is no longer, let’s figure out who the decisionmaker was. It is now, let’s probe the mental state of senior government officials.”

Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project, said the March 2025 order from Boasberg clearly prohibited the Trump administration from transferring the Venezuelan men to CECOT, and that Boasberg should be allowed to conduct his preliminary inquiry to identify any other potential official who violated his ruling.  

“The oral order was crystal clear,” Gelernt said. 

Blance, Bove provided legal advice

Boasberg’s inquiry involves Blanche and Emil Bove, who were both high-ranking DOJ officials at the time. Bove is a judge in the Third Circuit U.S. Court of Appeals.

Blanche and Bove gave legal advice to Joseph Mazzara, then the acting general counsel of the Department of Homeland Security, who informed Noem of Boasberg’s oral and written temporary restraining order that blocked the deportations under the Alien Enemies Act. 

“After receiving that legal advice, Secretary Noem directed that the (Alien Enemies Act) detainees who had been removed from the United States before the Court’s order could be transferred to the custody of El Salvador,” according to a filing by DOJ.

According to a June 2025 whistleblower account, Bove told a group of attorneys at the department before the Venezuelan men were removed, that the deportations would still occur and “we may have to say f— you to the courts,” if an order blocking the removals was issued by a judge. 

Before the U.S. Senate Judiciary Committee during his confirmation hearing to become a judge, Bove denied the June 2025 whistleblower account.

Boasberg also wants to hear testimony from the whistleblower, then-DOJ attorney Erez Reuveni, and Drew Ensign, a DOJ attorney who appeared before him in March 2025.

More facts needed

Shumate argued Tuesday that Boasberg already had the information he needed, and that the DOJ already noted that Noem was the government official who ordered the planes to continue to El Salvador.

Childs disagreed and said that there could be officials in that decisionmaking process other than Noem.

Shumate said that all Boasberg had asked the federal government was who made the decision.

“We’ve provided that information, but somehow that’s no longer good enough,” he said. 

Millett agreed with Childs that there seemed to be multiple people involved in the decision that Noem made. 

“It’s clear from the declarations that she was receiving legal advice from a number of people within the Justice Department,” Millett said. “Now, if an attorney providing legal advice to the secretary were to tell the secretary, ‘you have the legal authority to f-expletive the court order on this and go ahead and disembark people,’ might it be accurate that that attorney would just as well be in contempt of court as the secretary, potentially?” 

Shumate said that would “depend on the facts.”

“Well, then the district court has to ask some more questions,” she said.

WASHINGTON — An appeals panel Friday seemed inclined to agree that more than 100 Venezuelan men the Trump administration sent to a brutal prison in El Salvador are entitled to due process hearings to challenge their removal, which was made under an archaic 18th-century wartime law. 

Arguing on behalf of the class of men who were removed under the Alien Enemies Act of 1798, Lee Gelernt of the American Civil Liberties Union told the three-judge panel that the men, who were accused of being suspected members of the Venezuelan Tren de Aragua gang, were entitled to hearings to challenge those accusations. 

But instead, Gelernt said, the men were denied their due process rights and spent four months in a brutal Salvadoran prison. 

The men were eventually returned to Venezuela in a prisoner swap exchange, but many who had pending asylum cases want to challenge their removal under the Alien Enemies Act and continue their immigration proceedings.

He said the Trump administration is asking for the ability to “essentially whisk people away to a foreign prison, give them no opportunity to contest the removal, even whether they’re part of this gang that this proclamation applies to… and then say, ‘Because we got them out of the country into a foreign prison, that’s the end of the matter.’” 

DOJ argues against due process

The Trump administration argued before the U.S. Court of Appeals for the District of Columbia Circuit that the Venezuelan men are not entitled to due process hearings.

Department of Justice attorney Tiberius Davis said that the United States had no custody over the 137 Venezuelan men removed to the Salvadoran mega-prison known as CECOT, and therefore the immigrants are not entitled to hearings in the U.S. 

He added that it would be impractical for the Trump administration to conduct more than 100 online hearings abroad. 

“It’s a real problem with foreign sovereignty to hold hearings, and take evidentiary hearings, in foreign countries, even at our own embassies,” Davis said. “That can be a real problem. So we would have to engage in diplomacy and foreign affairs in order to even do that much.”

March 2025 origins

The case began when President Donald Trump invoked the Alien Enemies Act in March 2025 to rapidly deport Venezuelan immigrants. 

U.S. District Judge James Boasberg issued the Trump administration an order to return several deportation planes to the U.S., but instead they landed at CECOT. The U.S. paid El Salvador up to $6 million to detain the men.

On Monday, there is a separate hearing where Boasberg will hear arguments as to whether several Trump officials should be held in contempt for violating his order by not returning the planes carrying men removed under the Alien Enemies Act, including possible criminal contempt charges against Attorney General Todd Blanche and an appellate judge, Emil Bove. 

Judge expresses doubt

Circuit Judge Harry T. Edwards seemed skeptical of the Trump administration’s arguments that the U.S. had no custody over the men while at CECOT. Edwards was appointed by former President Jimmy Carter. 

“It seems pretty clear … that the U.S. was fully engaged and kept itself in a position of control throughout,” Edwards said.

Davis disagreed and said that diplomacy was involved and pointed to how Secretary of State Marco Rubio had to engage with El Salvador’s president to bring back one of the men sent to CECOT, Salvadoran national Kilmar Abrego Garcia, who was unlawfully removed to his home country.

“I think the district court sort of swept away those foreign affairs concerns,” Davis said.  

Gelernt said it was harder to facilitate the return of Abrego Garcia because he was a citizen of El Salvador. 

“He’s not part of our class. El Salvador clearly had an interest in their own nationals,” Gelernt said. “They have no interest in these Venezuelans, other than collecting a paycheck.”