Judge can jail Trump officials — and he's 'calling the government’s bluff': analysis
U.S. District Judge James Boasberg has the tools to proceed with criminal contempt charges against President Donald Trump's administration — and can also enforce a sentence if they are found guilty, a legal analyst said Wednesday.
Slate senior writer Mark Joseph Stern addressed Boasberg's ruling regarding the government's response to his court order.
The issue involved deportation flights to El Salvador that the judge ordered to turn around and return to the United States. The judge said at the time that the individuals deported did not have the due process to which they were entitled. They, however, landed in the Central American country, and the occupants were transferred to the infamous CECOT megaprison.
In his 46-page opinion, Boasberg found that "probable cause exists to find the Government in criminal contempt."
Writing about the matter, Stern explained that the only way out is that the government could "purge" the contempt by “asserting custody of the individuals” taken to the country without allowing them due process.
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"The Supreme Court unanimously agreed that migrants have a right to file these challenges, called habeas petitions, just last week," Stern pointed out.
In a different case, a Maryland man was deported to El Salvador. The government acknowledges that doing so was its mistake. The government has said that they have no control over anyone once they arrive in El Salvador.
"Boasberg is, in effect, calling the government’s bluff," wrote Stern. "He will forgo contempt proceedings if officials let CECOT detainees vindicate their rights. But by doing so, these officials will have to acknowledge that they do exercise constructive custody over these individuals. And this acknowledgment would puncture the fiction that they have no practical authority to bring Kilmar Ábrego García, or anyone else, back from El Salvador."
If the Justice Department refuses the offer, Stern said that Boasberg will "'proceed to identify the individual(s) responsible' for defying his orders, through 'live witness testimony' if necessary."
MSNBC legal analysts Lisa Rubin and Barbara McQuade said on Wednesday that there is precedent for a judge appointing an attorney to prosecute the government if the Justice Department refuses to do so.
"If Boasberg orders the defendants arrested and jailed, federal marshals are responsible for carrying out the task," wrote Stern.
He cited a recent report from Democracy Docket saying, "If the Justice Department instructs marshals to stand down, Boasberg can appoint other law enforcement officers, including state police, to seize and detain the federal officials who defied him."
The U.S. Supreme Court could intervene, however.
"Simply as a matter of preserving the judiciary’s independence, the justices should back him up and decline to condone such brazen defiance of judicial authority," Stern asserted. "But this Supreme Court keeps dodging conflicts with Trump at the expense of its own power."
Another possibility, he said, is that Trump could pardon anyone accused of criminal contempt, even preemptively.