For a year and a half, the Trump administration’s plan for Chief U.S. District Judge James Boasberg’s contempt inquiry has been simple: make sure he never actually gets to inquire. On Tuesday, the full D.C. Circuit sounded ready to let him do it anyway.
Quick refresher. Boasberg has been trying to figure out whether the administration defied his orders last March when it kept going with the flights carrying over 100 men to El Salvador’s CECOT supermax prison, even after he told the government from the bench to turn the planes around. He found probable cause for criminal contempt back in April 2025. Then this past April, two Trump appointees on the D.C. Circuit, Judges Neomi Rao and Justin Walker, ordered him to “terminate” the inquiry entirely, over an 80-page dissent from Judge J. Michelle Childs.
But the en banc court is a different crowd, and the government’s argument did not travel well.
Justice Department attorney Brett Shumate told the full court it isn’t the judiciary’s job to probe the “mental state” of administration officials. That’s especially true, he argued, since DOJ already handed over declarations naming who was involved in the decision. That person is then-Homeland Security Secretary Kristi Noem.
Childs wasn’t buying it. She reminded Shumate that “[t]he district court was halted in its fact-finding and there was no referral for prosecution,” and then took aim at the idea that the court should accept the government’s word, and a single official’s statement, that the matter is settled:
That’s not fair. That’s also unfair to the alleged [person] who might be a sacrificial lamb, the person all of you have picked who you want to go forward knowing later you might exert state privileges or some executive privilege and not let the contempt case go forward.
Judge Cornelia Pillard called it a remarkable position to ask a court to criminally refer a cabinet secretary without any reason to believe she, in particular, acted willfully. Judge Florence Pan noted the Noem declaration ran about two sentences.
Shumate seemed genuinely aggrieved by all of this. “We took the district court at his word that there was a violation of the order… we provided the information [about who was involved] and somehow, that’s no longer good enough,” he said.
That’s a generous way to describe conceding that something bad happened, volunteering one person to take the fall, and asking everyone to stop looking.
Judge Patricia Millett then took the inquiry where the government least wanted it to go. The scant declarations the court received showed Noem was taking legal advice “from a number of people in the Justice Department.” Among them, according to a whistleblower’s account of a meeting the day before the flights, was Emil Bove, who allegedly suggested telling the courts “fuck you.” Bove now sits on the Third Circuit. So Millett posed a hypothetical:
Now if an attorney providing legal advice to her were to tell the secretary, ‘You have the legal authority to expletive-eff word the court order and go ahead and disembark people,’ might it be accurate to say that that attorney would just as well be in contempt of court?
“That may be an interesting question for prosecutors,” Shumate said.
Millett’s response was that if the answer depends on the facts, then the district court needs to ask some more questions. Pan made the same point directly, that there’s already evidence of a government official saying the courts should get an “f you.” Rao jumped in to argue that Boasberg hadn’t said he was looking for additional contemnors, and Chief Judge Sri Srinivasan told Shumate to answer Pan’s question anyway. When Pillard asked Shumate to make her feel better about the government’s perspective, he offered that DOJ is “always advising our clients to comply with court orders.” The whistleblower’s account suggests some of that advice got lost in transmission.
For the other side, the ACLU’s Lee Gelernt told the court that what Boasberg wanted had been crystal clear since jump. He twice told the government to turn the planes around and not disembark the men, and he wants to know who at DHS or DOJ heard those orders and ignored them anyway.
It’s the same question the administration has spent 18 months trying to smother, through serial mandamus petitions, calls for Boasberg’s impeachment, and an ethics complaint over his supposedly improper comments. That’s a lot of fight over what should be an easy question to answer.
Earlier: Disbar Them All: The Only Accountability Left For Trump’s Lawyers
Emil Bove’s ‘I’m Not A Henchman’ T-Shirt Has People Asking Questions At Judicial Confirmation Hearing
Law And Chaos + Heritage Foundation?!?!
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post DOJ Offers Up Kristi Noem As ‘Sacrificial Lamb’ But D.C. Circuit Wants To Know Who Else Was In The Room appeared first on Above the Law.
For a year and a half, the Trump administration’s plan for Chief U.S. District Judge James Boasberg’s contempt inquiry has been simple: make sure he never actually gets to inquire. On Tuesday, the full D.C. Circuit sounded ready to let him do it anyway.
Quick refresher. Boasberg has been trying to figure out whether the administration defied his orders last March when it kept going with the flights carrying over 100 men to El Salvador’s CECOT supermax prison, even after he told the government from the bench to turn the planes around. He found probable cause for criminal contempt back in April 2025. Then this past April, two Trump appointees on the D.C. Circuit, Judges Neomi Rao and Justin Walker, ordered him to “terminate” the inquiry entirely, over an 80-page dissent from Judge J. Michelle Childs.
But the en banc court is a different crowd, and the government’s argument did not travel well.
Justice Department attorney Brett Shumate told the full court it isn’t the judiciary’s job to probe the “mental state” of administration officials. That’s especially true, he argued, since DOJ already handed over declarations naming who was involved in the decision. That person is then-Homeland Security Secretary Kristi Noem.
Childs wasn’t buying it. She reminded Shumate that “[t]he district court was halted in its fact-finding and there was no referral for prosecution,” and then took aim at the idea that the court should accept the government’s word, and a single official’s statement, that the matter is settled:
That’s not fair. That’s also unfair to the alleged [person] who might be a sacrificial lamb, the person all of you have picked who you want to go forward knowing later you might exert state privileges or some executive privilege and not let the contempt case go forward.
Judge Cornelia Pillard called it a remarkable position to ask a court to criminally refer a cabinet secretary without any reason to believe she, in particular, acted willfully. Judge Florence Pan noted the Noem declaration ran about two sentences.
Shumate seemed genuinely aggrieved by all of this. “We took the district court at his word that there was a violation of the order… we provided the information [about who was involved] and somehow, that’s no longer good enough,” he said.
That’s a generous way to describe conceding that something bad happened, volunteering one person to take the fall, and asking everyone to stop looking.
Judge Patricia Millett then took the inquiry where the government least wanted it to go. The scant declarations the court received showed Noem was taking legal advice “from a number of people in the Justice Department.” Among them, according to a whistleblower’s account of a meeting the day before the flights, was Emil Bove, who allegedly suggested telling the courts “fuck you.” Bove now sits on the Third Circuit. So Millett posed a hypothetical:
Now if an attorney providing legal advice to her were to tell the secretary, ‘You have the legal authority to expletive-eff word the court order and go ahead and disembark people,’ might it be accurate to say that that attorney would just as well be in contempt of court?
“That may be an interesting question for prosecutors,” Shumate said.
Millett’s response was that if the answer depends on the facts, then the district court needs to ask some more questions. Pan made the same point directly, that there’s already evidence of a government official saying the courts should get an “f you.” Rao jumped in to argue that Boasberg hadn’t said he was looking for additional contemnors, and Chief Judge Sri Srinivasan told Shumate to answer Pan’s question anyway. When Pillard asked Shumate to make her feel better about the government’s perspective, he offered that DOJ is “always advising our clients to comply with court orders.” The whistleblower’s account suggests some of that advice got lost in transmission.
For the other side, the ACLU’s Lee Gelernt told the court that what Boasberg wanted had been crystal clear since jump. He twice told the government to turn the planes around and not disembark the men, and he wants to know who at DHS or DOJ heard those orders and ignored them anyway.
It’s the same question the administration has spent 18 months trying to smother, through serial mandamus petitions, calls for Boasberg’s impeachment, and an ethics complaint over his supposedly improper comments. That’s a lot of fight over what should be an easy question to answer.
Earlier: Disbar Them All: The Only Accountability Left For Trump’s Lawyers
Emil Bove’s ‘I’m Not A Henchman’ T-Shirt Has People Asking Questions At Judicial Confirmation Hearing
Law And Chaos + Heritage Foundation?!?!
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
