Whole court should rethink ‘dangerous’ DC Circuit ruling that helped Trump admin avoid contempt despite ‘significant whistleblower evidence,’ petition says

Three weeks after the U.S. Court of Appeals for the D.C. Circuit took the “drastic” and “extraordinary” step of nuking a federal judge’s criminal contempt probable cause finding against President Donald Trump’s administration, attorneys for Alien Enemies Act (AEA) deportees are asking the whole appellate court to hear the case again and to repudiate the “dangerous” 2-1 decision led by Trump-appointed circuit judges.

The ACLU attorneys in J.G.G. et al. v. Trump state that an en banc rehearing is needed, not just because the case is “rife with open legal questions” but also because Chief U.S. District Judge James Boasberg should be permitted to take into account “significant whistleblower evidence” about what the DOJ knew of his initial March 15 restraining order blocking (AEA) deportations and when the government knew it.

“Review by the full Court is warranted because the ruling creates an intra-Circuit conflict over the proper standard for mandamus relief. More fundamentally, the ruling raises an issue of overriding importance going to the heart of the Judiciary’s authority to enforce its orders,” said the petition for a rehearing en banc, calling U.S. Circuit Judges Neomi Rao and Gregory Katsas’ ruling “dangerous” in its implications. “It is hard to imagine a more direct blow to the authority of the federal courts than undermining their ability to enforce their orders. Here, the panel’s ruling is even more dangerous because it undermines the district court’s authority even to inquire into possible willful disobedience of its order—a step well short of pursuing any particular remedy, much less a criminal referral.”

As Law&Crime previously reported, Boasberg in March orally issued a temporary restraining order blocking deportation flights to El Salvador and demanded any planes in the air turn around. The Trump administration flouted that order. In April, Boasberg found probable cause to hold the administration in criminal contempt for defying his order — one which the U.S. Supreme Court would later vacate. While the contempt proceeding stalled from April to August as the administration appealed to the D.C. Circuit, a DOJ whistleblower emerged with damaging allegations. The whistleblower accused then-principal Associate Deputy Attorney General Emil Bove of suggesting, the day before Boasberg’s March decision, that the DOJ might have to consider ignoring court orders. In addition, whistleblower Erez Reuveni released emails showing that he informed DOJ higher-ups, in real-time, of the content and importance of Boasberg’s order.

Bove, Trump’s former criminal defense attorney, has since been confirmed to a lifetime judgeship on the 3rd U.S. Circuit Court of Appeals.

Rao and Katsas, rather than allowing Boasberg to take these circumstances into account as part of a contempt inquiry, on Aug. 8 instead shut down the judge’s probe, issuing relief in the form of a writ of mandamus — an order “compelling [Boasberg] to correct their earlier mistake.”

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The petitioners now argue that Rao and Katsas erred in concluding this case was fit for mandamus relief.

Noting that issuing a writ of mandamus is a “drastic” measure, the petitioners cast it as startling that the Trump-appointed majority took that course of action when the circuit judges themselves couldn’t agree on what was “clear and indisputable.”

“Indeed, Judges Katsas and Rao did not even agree on the rationale for reversing the district court, much less point to a clear-cut binding precedent,” the filing said, adding lines later: “The absence of clear-cut precedent, or even agreement among the panel, underscores that this case is rife with open legal questions.”

The plaintiffs believe the en banc D.C. Circuit should hear this case again to clarify that mandamus was inappropriate in a situation where there were “other adequate means to attain the relief.”

“En banc rehearing is warranted to ensure that this Court’s use of the drastic remedy of mandamus is uniform. Doing so will prevent litigants from prematurely seeking this Court’s review where, as here, appellate jurisdiction is plainly lacking,” the filing said.

In parting shots, the filing said Katsas’ view that Boasberg’s initial temporary restraining order was unclear is plainly undercut by whistleblower evidence.

“That career DOJ counsel repeatedly notified the relevant agencies of the district court’s order, its meaning, and its urgency, yet received no response until the next day, speaks volumes,” the petition said. “Moreover, had Defendants genuinely believed the district court’s order was unclear, they could easily have contacted Chief Judge Boasberg, who had made himself available throughout that Saturday on incredibly short notice. That they instead chose to ignore the order and then retroactively manufacture ambiguity is a remarkable step for any litigant, much less the United States Department of Justice.”

If the D.C. Circuit refuses to grant the rehearing, then it will open the door to other judicial orders being ignored, the filing concluded. The court was asked to “make clear that a party cannot avoid even having to answer a legitimate inquiry from a federal court about possible deliberate defiance of its order—especially where, as here, there is significant evidence that the DOJ lawyers litigating the case clearly understood the order at the time and that high-ranking officials stated in advance that they might not let a court order stand in their way.”

“Any other result would suggest that the Judiciary will not enforce its orders in the face of determined resistance,” the petition ended.

Read the petition in full here.

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