Two of the the three judge panel, both appointed by Trump, decided that their efforts were better put toward the painful parsing of Judge James Boasberg’s words than upholding the duty to comply with the order of the court. Writing for the majority, Judge Neomi Rao held that Judge Boasberg’s pursuit of criminal contempt was a “clear abuse of discretion.”

The widening gyre of the district court’s investigation again calls for the extraordinary remedy of mandamus to halt the judicial “impairment of another branch in the performance of its constitutional duties.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 390 (2004) (cleaned up). The district court proposes to probe high-level Executive Branch deliberations about matters of national security and diplomacy. 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. Moreover, the government has already provided the name of the responsible official, so further judicial investigation is unnecessary and therefore improper. In these circumstances, mandamus is appropriate to prevent the district court from assuming an antagonistic jurisdiction that encroaches on the autonomy of the Executive Branch.

The government, having already thrown fired DHS Secretary Kristi Noem under the bus as the ultimate decisionmaker, sought to end Judge Boasberg’s further inquiry into who else made the decision to ignore his order to turn around the planes that took after after he ordered they not take off, and then continued to El Salvador rather than turn around.

But Rao’s decision hinges on a purported lack of clarity, as if there was any doubt as to what Judge Boasberg meant when he gave his oral ruling.

[Y]ou shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.

Was this order so unclear as to relieve the government from any duty to comply, after the court was informed that two planes had taken off after he issued the TRO? The oral order was followed up by a written minute order.

Shortly after the hearing, the district court issued the written temporary restraining order at issue in these contempt proceedings. The court certified a class of aliens subject to the AEA Proclamation and directed that the “Government is ENJOINED from removing members of such class (not otherwise subject to removal) pursuant to the Proclamation for 14 days or until further Order of the Court.” Second Minute Order (Mar. 15, 2025) (“TRO”). Several hours later, the two planes that had departed before the TRO issued arrived in El Salvador, where Salvadoran authorities transferred most of the detainees to the Center for Terrorism Confinement.

Judge Walker’s concurrence tries to weasel its way out of the obvious.

In an oral order, the district court limited what the Government could do with certain aliens covered by a recent presidential proclamation. Some of the covered individuals were inside the United States, and others were on planes, in flight, outside U.S. air space. Less than an hour after the oral order, the district court issued a written order that prohibited the removal of certain aliens currently in the United States. But unlike the oral order, the written order did not protect anyone already removed from U.S. territory. It prohibited only future removals and said nothing about those already removed.

After the written order, the Government took actions that the oral order had arguably prohibited (and that the written order did not prohibit). So if the effect of the (broader) oral order survived the (narrower) written order, the Government’s conduct would raise a host of difficult questions. But before issuing its oral order, the district court said, “I will issue a minute order memorializing this so you don’t have to race to write it down.”

If the purpose of the circuit’s majority was to stretch to find an excuse for the government’s flagrantly ignoring the order of the court, it remains dubious whether the sentence relied upon by Judge Walker, bold in the original, does the trick. It was, perhaps, unfortunate that Judge Boasberg’s written minute order didn’t align with the informality of his oral order, or that it could be inferred that the later order would supersede the former, but it misses a crucial point, which was emphasized by Judge Childs in dissent.

Contempt of court is a public offense, and the fate of our democratic republic will depend on whether we treat it as such. In the many forms in which it can be committed, contempt degrades the power that the People, through their Constitution and Congress, gave the federal courts. Without the contempt power, the rule of law is an illusion, a theory that stands upon shifting sands. For contempt offends not only the authority of whichever judge has been subjected to such incursions, but it also offends our system of governance. Addressing contempt is, therefore, a responsibility that is part and parcel of the court’s duty to interpret and apply the laws of the governed.

And yet, a court’s inquiry into contempt is a responsibility that can be just as difficult as it is sacred. The complexity of this task explains why, for some contempt proceedings, factfinding is required for a trial court to fairly identify contemnors, their contumacious acts, and then hold them accountable. Thus, we cannot judge the early actions of a trial court in such a proceeding heavy-handedly, for contempt of court is not addressed for the district court’s vanity; it is done to preserve and enforce our law. As a court of review, we preserve the sanctity of these proceedings by reviewing judgments of contempt with an eye towards vindicating the dignity and authority of the courts while simultaneously respecting the individual liberties and rights of contemnors. Here, unfortunately, we have overstepped in adjudicating this balance of interests.

An ongoing dilemma facing the judicial branch of government is that the executive branch cares nothing about the orders of “inferior courts,” and little about the Supreme Court. Yet, this decision reflects the majority’s decision to undermine the authority of the district court in favor of making excuses for the executive’s decision to ignore the court’s ruling.

It doesn’t matter if Judge Boasberg was right or wrong, or whether the Supreme Court vacated the TRO (previously upheld by a different D.C. Circuit panel) based on venue. What matters is that the executive either abides the orders of a court and appeals if it believes them wrong, or the rule of law is rendered meaningless. Judges Rao and Walker chose to rely on weasel words to back the power of the executive to reject the authority of the judiciary.