Trump's Justice Department Twice Asked an Appeals Court to End a Judge's Contempt Inquiry

Stop the Questions, Not Just the Hearing

Trump's Justice Department asked a court to stop another court from finding out whether the government had obeyed its order.¹ The order came on a March evening in 2025: detainees bound for El Salvador had already left the United States when Chief Judge James E. Boasberg issued a restraining order, and the government went on to hand them over.²³ Boasberg later scheduled two witnesses to learn why. Neither has testified.³⁴⁵

On December 12, 2025, four days after he scheduled that testimony, the Department petitioned the D.C. Circuit appeals court to cancel it, end the contempt inquiry, and remove Boasberg from the case.¹³ The appeals court stayed the testimony the same day.⁴ Boasberg had not yet decided whether to refer anyone for prosecution; he wanted to find out what happened.³

The petition was explicit: "This Court should therefore again grant mandamus relief, this time foreclosing any further inquiry."¹ Mandamus is an order directing a lower court to act or stop acting.²

The petition was filed for Trump in his official capacity, by lawyers including Brett Shumate, whom Trump chose to lead the Department's Civil Division.⁶⁷¹ Two appeals judges recorded, in a November 2025 dissent, that Trump publicly called for Boasberg's impeachment in response to the restraining order.⁸ That shows his public opposition to the judge; neither it nor the petition shows that he personally told anyone to file either petition.¹⁸

The First Appeal Left the Inquiry Open

The December petition was the Department's second. The first had won part of what it sought.⁹²

On April 7, 2025, the Supreme Court vacated, or canceled, Boasberg's restraining orders because the detainees were confined in Texas and the District of Columbia was the wrong venue.¹⁰ On April 16, Boasberg nevertheless found probable cause to believe the government had willfully disregarded his order. He offered a choice: bring the government into compliance, or identify the officials who knowingly decided not to halt the transfers out of U.S. custody.¹¹¹² The Department asked the appeals court to pause that order or end the criminal contempt proceedings.⁹

On August 8, Judges Gregory Katsas and Neomi Rao vacated the probable-cause order over Judge Cornelia Pillard's dissent.² Katsas found that the restraining order could reasonably be read as barring removal from U.S. territory rather than transfer from U.S. custody, and that the ambiguity had to favor the party accused of contempt.² Rao concluded that Boasberg could not use threatened criminal punishment to coerce compliance with a vacated order, but left further criminal contempt proceedings possible.²

The government won that round.² But the court did not grant its request to terminate the proceedings, and on November 14 the full D.C. Circuit denied rehearing.²⁸

A Name Was Not an Explanation

By November 28, 2025, the government had given Boasberg a name for the official responsible for continuing the transfers: Homeland Security Secretary Kristi Noem.¹³ Her declaration said she decided to continue transferring custody of detainees who had left the United States before the evening restraining order.³

On December 8, Boasberg wrote that the declaration did not contain enough information to determine whether her decision was a willful violation. He could not then find probable cause, and a prosecution referral would be premature.³ He wanted testimony to understand the basis for the transfer decision.³

His order named two witnesses: Drew Ensign, the government's lawyer in the case, and Erez Reuveni, a former Justice Department lawyer.³¹ The government was to produce Ensign; plaintiffs were to try to secure Reuveni's attendance. Both sides could question the witnesses.³

Both witnesses had a connection to the disputed events. The government's own July 2026 brief acknowledged that Ensign conveyed the court's oral statements and written order to his clients.¹⁴ Pillard's dissent in the first appeal described Reuveni's account of emails from the time: he told agency officials that the court had ordered the return of people already in the air, and attested that Ensign also conveyed the injunction after the written order issued.² Katsas considered those communications of limited relevance to whether the order was objectively ambiguous, and neither account establishes what advice Noem received.²¹⁴

The appeals court's December 12 stay stopped that testimony before it began.¹⁴ To get the case reassigned, the petition alleged that Boasberg showed bias and a pattern of retaliation and harassment.¹

The Defense, the Reversal, and the Delay

The strongest defense is that a judge must not take over a criminal investigation or expose privileged legal advice through questioning by opposing counsel.¹ Investigation and prosecution belong to the executive, the Department argued, and assessing an official's criminal intent is an investigative function.¹ Its July 22, 2026 brief added that Ensign had sworn he played no role in formulating Noem's legal advice and that Reuveni lacked firsthand knowledge of that advice or her decision.¹⁴ The government had not waived attorney-client privilege, the brief said, and had asked without success for a protective order or a protocol for resolving privilege disputes.¹⁴

The Supreme Court has recognized mandamus as a way to prevent judicial interference with another branch's constitutional duties, and has said courts ordinarily should ask the proper prosecuting authority to prosecute contempt before appointing a private prosecutor.¹⁵¹⁶ The contempt decision also held that courts have inherent authority to initiate contempt proceedings for disobedience to their orders and cannot depend on another branch to decide whether those proceedings begin.¹⁶ And Boasberg had neither appointed a private prosecutor nor referred Noem for prosecution. He sought information before deciding whether a referral was justified.³

A panel of the appeals court ordered him to end the inquiry on April 14, 2026.¹⁷ Judge J. Michelle Childs dissented, writing: "Without the contempt power, the rule of law is an illusion, a theory that stands upon shifting sands."¹⁸ On June 22, the full court vacated the panel's order and agreed to rehear the case, while keeping the testimony stayed.⁵

The full court heard argument on September 29.¹⁹²⁰ The Department's fallback was a referral decision without further testimony.¹⁴ Law360 reported that at the argument, the Department urged Boasberg to refer Noem for contempt and move on, rather than extend his inquiry to others.²¹

As of October 10, 2026, the publicly available appellate docket recorded no decision.²⁰ The testimony Boasberg scheduled ten months earlier remained stayed.⁵²⁰

Records, Discovery and a Troop Call-Up

The contempt petitions were not the only place Trump's government resisted examination of its own conduct. Three other disputes show the same demand, and the government did not lose all of them.^22232425

The first concerned White House records. On April 1, 2026, Trump's Office of Legal Counsel declared the Presidential Records Act unconstitutional and concluded that the President need not continue complying with it.²⁶ The next day, White House Counsel David Warrington, whose office had requested the opinion, issued guidance that limited text-message preservation to sole records of decisions or actions, or unique information unavailable elsewhere; it still told staff to preserve material related to their duties and prohibited permanent deletion of emails and material on official laptops or networks.²⁷ When historians and American Oversight sued, the Justice Department argued that the Records Act barred review and that the court lacked jurisdiction over four of their seven claims.²² The government's stated concerns included cost and the chilling of candid advice; Bates found it had supplied no evidence of the resources required for compliance and that the statutory safeguards protected confidentiality.²⁷²⁸

Judge John Bates rejected that argument at the preliminary-injunction stage.²⁸ He found the Act likely constitutional and concluded that the President's actions disregarding it exceeded his constitutional authority and violated federal law.²⁸ Bates wrote: "The President is not free to disregard valid laws."²⁸ He found a substantial risk of non-preservation or deletion of messages on unofficial accounts and of records created by or sent to Trump and Vance, and his May 20 injunction required covered White House offices and officials to comply with the Act.²⁸²⁹ It excluded Trump, Vance and four other defendants.²⁹ On June 30, Bates stayed merits proceedings at the government's request but expressly preserved the injunction and its enforcement.³⁰ The D.C. Circuit's calendar, dated October 10, scheduled the appeal for October 16, 2026.³¹

The second was the Abrego Garcia deportation case. Judge Paula Xinis found on April 22, 2025 that a government discovery objection reflected a willful and bad-faith refusal to comply, and wrote that defendants had used vague, unsubstantiated privilege assertions to obstruct discovery and evade court orders.²³ She sustained some objections while largely overruling the rest.²³ The plaintiffs later sought sanctions; the docket shows a March 23, 2026 stay and no ruling imposing them.³²³³

The third was over National Guard call-ups. In June 2025, the Ninth Circuit stayed a California restraining order.²⁵ It rejected the government's claim that the call-up was completely insulated from judicial review, but applied highly deferential review and found that Trump likely lawfully federalized the California Guard. It did not decide whether particular uses of those troops were lawful.²⁵ In the Illinois Guard case, Solicitor General D. John Sauer argued that the President's militia call-up decision was not judicially reviewable at all.²⁴ He relied on Martin v. Mott and the President's responsibility to protect federal personnel and property; his fallback was highly deferential review under which any plausible basis would suffice.²⁴ On December 23, 2025, at a preliminary stage, the Supreme Court denied the government's application to lift the Illinois deployment bar and expressly left reviewability of presidential findings undecided.³⁴ In Oregon, a court did try the facts: after a three-day trial, Trump-appointed Judge Karin Immergut rejected federal officers' testimony that Portland police had ignored their requests, held that the federalization and deployment violated the Guard statute and the Tenth Amendment, and permanently barred the covered deployments.³⁵³⁶ Oregon DOJ reports that the government voluntarily dismissed its appeals on February 17, 2026.³⁷

The Question Congress Still Has to Answer

The Constitution requires the President to take care that the laws are faithfully executed and provides for removal on impeachment and conviction for high crimes and misdemeanors.³⁸

Nixon's Article III offers a direct comparison: it charged willful disobedience of congressional subpoenas without lawful excuse, and the Judiciary Committee adopted it 21 to 17.³⁹ Ten members' minority views insisted on notice and an opportunity to defend before the House treated noncompliance as impeachable. In separate additional views, David W. Dennis argued that courts should resolve contested constitutional rights before their assertion was called abuse.⁴⁰ The same discussion recognized that willfully disobeying a court's lawful process is an impeachable offense once it has been duly adjudicated as contempt.⁴⁰ The El Salvador inquiry, still unresolved, has produced no such judgment, and invoking a constitutional defense is not itself proof of misconduct: House committees in 1837 and 1879 protected officials from furnishing evidence against themselves.^23520413940

What the record does show is a government that twice asked an appeals court to end a judge's effort to learn whether his order had been willfully disobeyed.⁹¹ Courts sometimes accepted the government's defenses; elsewhere they found bad faith or imposed preservation requirements.^2252329

The President's duty to enforce the law gives Congress a reason to examine this pattern. Congress should judge the conduct and its consequences, hear the constitutional defenses, and decide whether the President's government used public power to protect itself from accountability. A right to appeal does not answer that question.