On Tuesday, the full D.C. Circuit will hear arguments in a case that began on a Saturday evening in March 2025, when a federal judge ordered two planeloads of Venezuelan men returned to the United States and the administration, hours later, transported them to a prison in El Salvador instead.
Eighteen months later, the only question before the court is narrow, and worth stating precisely, because the government has spent great energy twisting it into something else: may Chief Judge of the D.C. District Court James Boasberg continue to inquire into whether the administration knowingly defied his order?
The case has taken a long, tortuous path to tomorrow’s hearing. It is important in itself, but the stakes reach past it, to whether this administration set out to buck the law from the first days of Trump 2.0. That’s why I left my usual seat in the journalist’s box and signed onto an amicus brief in the case, one of 12 former Justice Department officials, Republicans and Democrats alike, who think Boasberg should be allowed to do his job.
Cast your mind back to March 2025. It was the first real collision between the second Trump administration and the federal courts: before the birthright-citizenship fights, before the funding freezes, before the parade of emergency stays that is now the background hum of this presidency.
At an emergency hearing on March 15, Boasberg ordered the government not to remove anyone under the Alien Enemies Act and, if planes were aloft, to turn them around. His statement from the bench: any plane carrying these people “needs to be returned to the United States.”
Notwithstanding Boasberg’s instructions, the planes landed in El Salvador and went straight into a maximum-security prison, and that country’s president posted a laughing emoji and the word, “Oopsie.”
Later, a whistleblower—Erez Reuveni, a career Justice Department lawyer since fired—told Congress that at a March 14 leadership meeting, then-senior DOJ official Emil Bove said the planes were leaving “no matter what,” and that the Department might have to say “Fuck You” to the courts. Bove, since rewarded with a lifetime seat on the Third Circuit, told the Senate he couldn’t recall the profane remark.
Boasberg has doggedly insisted on getting to the bottom of what happened for well over a year. That has entailed plowing past a series of avoidance maneuvers from the administration. The extended bob-and-weave has included refusing to address his questions on national-security grounds, dismissing the matter as a “picayune dispute,” floating and then not invoking the state secrets privilege, serving up a declaration so empty that Boasberg called it “woefully insufficient,” and filing a misconduct complaint against the judge himself.
When Boasberg continued to hang fire, the administration tried its well-worn play of crying “emergency” to the D.C. Circuit. A panel of three judges gave Trump a ringing victory that lasted only a little while before the court as a whole took the unusual step of vacating the opinion and agreeing to hear the case again. That hearing before the full en banc court takes place Tuesday.
The now-vacated panel opinion was remarkably obtuse and spiteful. It’s the most naked piece of judicial pandering I have seen by a judge this side of Aileen Cannon. It was written by a judge, Neomi Rao, widely considered to be in the running for the next Supreme Court vacancy.
The proof of Rao’s overreach was the series of nasty swipes at Boasberg, a judge widely respected on both sides of the aisle (he was nominated to the bench by Barack Obama and confirmed unanimously). Courts of appeals taking a case away from a district court customarily cushion the blow with polite asides about the learned district judge.
But not in this case. Rao fairly savaged Boasberg, with words that likely shocked her colleagues but delighted her Oval Office patron. Among many potshots and low blows, she accused Boasberg of a “widening gyre” of investigation and wrote “criminal liability cannot turn on the unstated intentions (or post hoc assertions) of a district court judge.” It was her vitriol as much as her reasoning that I think explains the full court’s rare decision to vacate her opinion and rehear it en banc.
It’s certain that the eventual opinion will excise those Rao nasty-grams. But the focus Tuesday will be on Rao’s legal analysis. The brief I joined made the fundamental point that, contrary to Rao’s suggestion, there has been no finding of contempt, and all Boasberg’s order does is consider the possibility based on compelling evidence pointing in that direction.
Second and relatedly, Rao’s opinion recasts that factual question as a legal one that isn’t in front of Boasberg at all. Criminal contempt, the majority reasoned, requires a “clear and specific” order, and Boasberg’s temporary restraining order “did not clearly and specifically bar the government from transferring plaintiffs into Salvadoran custody.”
That move takes Bove and other administration officials’ mental state out of the equation. But contempt is judged at the moment of the conduct, not against a reading two appellate judges reached a year and a half later. If the people in that room understood the order and defied it because the planes were landing “no matter what,” the fact that some judges now find the wording debatable does not launder the defiance. At a bare minimum, it is no basis for pulling the plug on the inquiry.
As Judge Michelle Childs warned in dissent, the majority’s logic would “echo in future proceedings against all litigants,” letting anyone “argue, based on their preferred interpretation of a court’s order, that they did not commit contempt before contempt findings are even made.”
The D.C. Circuit should stand behind Boasberg’s doggedness. It would have been easy for him to drop it, but I think as the chief judge, he sees himself as acting on behalf of his colleagues, whose three-year project of trying the January 6 offenders—the largest prosecution effort in the department’s history—was wiped away with a stroke in Trump’s wholesale pardons the day that he took office.
Moreover, Boasberg is now in a sense carrying the load for American society and history. The administration has been intent from its first minutes in office on the Orwellian project of whitewashing history and erasing Trump’s perfidy, the worst by any president in our history. Its war on the truth is comprehensive, ranging from the burial of the Jack Smith report to the campaign to launder the Smithsonian’s account of the American past to the ouster of the national archivist charged with keeping the government’s own record. As Orwell wrote of the machinery of the Party, “Every record has been destroyed or falsified… And the process is continuing day by day and minute by minute. History has stopped.”
The D.C. Circuit argument thus has a dual role: It will settle Boasberg’s ability to continue to hold the administration accountable. But it also will serve as a sort of truth and reconciliation commission, on the model of the January 6 committee during Trump 1.0. It is vital for us to know as a country whether the administration came into office determined to elevate presidential will over the rule of law, to land the planes “no matter what.” Unless Boasberg is permitted to finish the job he started well over a year ago, we may never learn the answer—which is precisely the result the administration has been seeking for over a year.
