(WASHINGTON) — A federal appeals court on Tuesday halted a criminal contempt inquiry into former Homeland Security Secretary Kristi Noem and other officials for last year’s deportation of more than 200 Venezuelans to El Salvador’s CECOT mega-prison, marking the second time in less than a year that the probe has been frozen.
A divided panel of judges on the D.C. Circuit Court of Appeals ordered an end to the inquiry, concluding that the probe into whether the officials knowingly defied a court order with the deportations “encroaches on the autonomy” of the executive branch.
The Trump administration, in March 2025, invoked the Alien Enemies Act — an 18th century wartime authority used to remove noncitizens with little-to-no due process — to deport two planeloads of alleged migrant gang members by arguing that the Venezuelan gang Tren de Aragua is a “hybrid criminal state” that is invading the United States.
U.S. District Judge James Boasberg issued a temporary restraining order and ordered that the planes be turned around, but Justice Department attorneys said his oral instructions directing the flight to be returned were defective, and the deportations proceeded as planned.
Boasberg subsequently sought contempt proceedings against the government for deliberately defying his order, and had concluded that “probable cause exists to find the government in criminal contempt” — but his inquiry was frozen by the same appeals court last year.
When Boasberg attempted to continue with his probe within the confines of the court’s order, the Trump administration filed an interlocutory appeal to stop the investigation outright.
“The district court proposes to probe high-level Executive Branch deliberations about matters of national security and diplomacy,” Judge Neomi Rao, one of two Trump appointees on the panel who ruled in favor of the government, wrote in Tuesday’s order. “These proceedings are a clear abuse of discretion, as the district court’s order said nothing about transferring custody of the plaintiffs and therefore lacks the clarity to support criminal contempt based on the transfer of custody.”
Judge J. Michelle Childs dissented from the majority and argued that Boasberg should have the latitude to proceed with basic fact-finding into the deportations.
“There is no question that there could be much to fear in a factual inquiry about the actions of potential contemnors who may have defied a court order. However, that does not mean that this court must intervene to end a criminal case before it begins, even for the Executive Branch,” she wrote.
In a sharply worded dissent, she argued that “the fate of our democratic republic” depends on whether courts can properly investigate and punish contempt.
“Without the contempt power, the rule of law is an illusion, a theory that stands upon shifting sands,” she said.
The Venezuelan nationals were ultimately released to their home country from CECOT in a prisoner swap last July.
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