Exclusive: Attorney challenges court’s contempt push in Trump admin’s deportation case

The Coolidge-Reagan Foundation (CRF) is taking aim at a federal judge’s attempt to hold President Donald Trump in contempt over the deportation of alleged Venezuelan gang members to El Salvador.

CRF Counsel Dan Backer, in an interview with The Lion, argued U.S. District Judge James Boasberg’s “rushed” ruling misfired, undermining efforts to penalize Trump for enforcing immigration law under the Alien Enemies Act. The case, pitting executive authority against judicial oversight, has sparked a fiery debate over immigration policy and presidential power.

Backer contends that Boasberg’s temporary restraining order (TRO) was clear on its face, barring deportations for 14 days but not mandating the return of five alleged Tren de Aragua gang members already sent abroad.

CRF’s amicus brief, filed in the U.S. District Court for the District of Columbia, slams the judge’s reliance on hearing transcripts to reinterpret the TRO, calling it a violation of legal standards.  

“Technically, the order was correctly and clearly written,” Backer tells The Lion. “There’s nothing wrong with the order on its face, other than, apparently, the judge wanted to order them to do something else, and he didn’t (write it).”

The brief argues that the court should not hold Trump or his subordinates in contempt; the court lacks jurisdiction to grant habeas relief for deported illegals; and the court should refrain from further decisions on the case because of the political ramifications.

CRF, a nonprofit dedicated to First Amendment principles and fair elections, also contends in its brief that judicial “asymmetry” always favors Democrat immigration policies, and that bias undermines Republican efforts to enforce immigration law. 

“The courts have stopped people from suing the Biden administration to stop this massive flood of illegals coming in the country,” said Backer. But at the same time, “on the flip side, when you want to remove criminals from the country, now you’re requiring individualized consideration” for each case.  

“I don’t think it hurts to remind the judges either about the effect of (their) bad policy” for citizens, he said. Those effects include “rape, murder, violence, bloodshed, the destruction of our economy [and] the exposure of housing prices.”

In its brief, CRF asserted that Trump did not violate the court’s order, which only prohibited “removing members of [the] class … pursuant to the Proclamation for 14 days.”

The written order also did not explicitly require the return of the alleged Tren de Aragua gang members, who were already removed from U.S. territory.

The brief cites Federal Rule of Civil Procedure 65(d), requiring injunctions to be specific and self-contained, arguing that the court’s reliance on hearing transcripts to interpret the written order violates this rule.

Rule 65(d) covers injunctions and restraining orders and requires TROs to “state its terms specifically; and… describe in reasonable detail – and not by referring to the complaint or other document – the act or acts restrained or required.”   

Boasberg wants to rely on the written transcript of the court proceedings to reinterpret the TRO rather than referring to just the TRO itself.  

“It’s not a matter of what the judge says in a hearing at all,” Backer told The Lion. “You know, it doesn’t matter how he feels. It doesn’t matter if subsequently he says, ‘Well, I wanted you to think about it this way.’ You are only governed by these ‘four corners’” of the written order.  

“Four corners” refers to a legal principle where everything is interpreted only by the text written on the pages of the document, a longstanding finding of the courts in several high-profile cases. 

Oral directives, such as the court’s instruction to return planes, are not binding if unwritten, said the CRF brief. 

Moreover, CRF noted President Trump is immune from contempt citations due to his Article II constitutional authority as president as “this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.”  

The courts have found that presidents have “absolute immunity” from criminal and civil liability in pursuit of their official duties under Article II.  

Backer said as a matter of law, that immunity also extends to presidential subordinates who are acting on the president’s instructions. 

In terms of the habeas corpus relief sought by the five allegedly illegal Venezuelan gang members, the Supreme Court has already found Boasberg exceeded his authority. 

Habeas corpus can only be granted by a court in the jurisdiction where defendants are held. At the time of the order the men weren’t in custody under the authority of the U.S. District Court for the District of Columbia, where Boasberg is judge.  

Backer called the decision a subtle warning by the Supreme Court to federal judges who are trying to impose nationwide injunctions by abusing their authority in their districts, without even citing constitutional issues.    

“I think it’s a great warning shot across the bow the Supreme Court is losing its patience with these nationwide injunctions that are completely inappropriate,” said Backer.  

When asked if the issue of contempt was bound to be decided by the U.S. Supreme Court, Backer said he didn’t think so.  

“The U.S. Court of Appeals is the one that’s going to end up overturning these findings, because it’s going to say, ‘Look, you don’t have the power to hold them in contempt,’” Backer told The Lion.  

But he thought ultimately Trump’s use of the Alien Enemies Act to deport illegal aliens would end up before the nation’s highest court. Several lower courts have issued nationwide injunctions against the use of the Alien Enemies Act in deportation proceedings.    

“You have an Alien Enemies Act. It says what it says. Congress passed it,” Backer concluded.  

“[The lower courts are] not saying it’s unconstitutional. They’re saying the President can’t use that act. It’s an improper role for the judiciary to say, ‘We don’t want you using this power that you have because we don’t like how you’re using it,’” added Backer.