The U.S. Department of Justice asked the D.C. Circuit Court of Appeals on May 22 to reject a petition for an en banc rehearing regarding a high-profile criminal contempt investigation into executive branch officials.
The filing stems from a legal battle over the March 15, 2025, invocation of the Alien Enemies Act by Donald J. Trump to detain and remove Venezuelan members of the Tren de Aragua gang. Following that proclamation, five Venezuelan nationals filed a lawsuit in Washington, D.C., securing a temporary restraining order (TRO) meant to block their removal.
In its latest opposition brief, the DOJ argues that a three-judge panel was entirely correct in granting a writ of mandamus to halt the district court’s criminal contempt inquest. Government attorneys characterized the lower court’s investigation as a “legal dead end” and an unnecessary probe into the national security and foreign policy deliberations of senior officials.
According to the background detailed in the filing, the district court issued a written minute order on March 15, 2025, enjoining the government “from removing members of such class (not otherwise subject to removal) pursuant to the Proclamation for 14 days.”
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However, two flights carrying detainees had already departed the United States before that order was finalized, and the individuals were subsequently transferred to the custody of El Salvador. The Supreme Court later vacated the TROs entirely on April 7, 2025, ruling that the district court lacked jurisdiction.
Despite the high court’s vacatur, the district judge pursued a criminal contempt inquiry. The judge reasoned that his verbal remarks during hearings should have made it clear that transferring custody to Salvadoran officials was prohibited.
The Justice Department contends that criminal contempt charges cannot legally stand because the plain language of the written order only restricted territorial removals, not external transfers of custody.
“It is settled law that contempt will not lie for violation of an order of the court unless the order is clear and decisive and contains no doubt about what it requires to be done,” the DOJ noted in the brief, referencing established case law.
The DOJ submission notes that the government previously disclosed the identity of the primary decision-maker involved in the transfer, naming then-Secretary of Homeland Security Kristi Noem. Sworn declarations were also provided by Noem, then-Acting Department of Homeland Security General Counsel Mazzara, Acting Attorney General Blanche, and former Principal Associate Deputy Attorney General Bove.
All declarants stated that Noem made the final decision after receiving privileged legal advice.
The DOJ claims that while it provided all necessary facts for a standard referral, the district court “moved the goalposts” by demanding that the government’s active litigation counsel take the stand for cross-examination to probe whether the alleged violation was “willful.”
The government argued that compelling testimony from its active trial lawyers threatens the attorney-client privilege and creates a needless constitutional clash between the judiciary and the executive branch.
The Justice Department maintains that the full D.C. Circuit should decline to rehear the case, stating that full court reviews are rarely granted for fact-bound disagreements over specific temporary orders.
The DOJ also asserted that plaintiffs in the underlying lawsuit lack the legal standing to demand an en banc rehearing on a criminal contempt matter, which is designed solely to vindicate the court’s own authority rather than remedy private civil complaints.
The filing concludes that three appellate judges have already agreed the government’s March 2025 actions did not violate any explicit court directives. Because criminal contempt strictly requires the breach of a clear and unambiguous order, the DOJ argues that reopening the case would serve no practical purpose while further straining inter-branch relations.
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