D.C. Circuit En Banc Hears the Fight Over Boasberg's Contempt Probe of the Deportation Flights
On Tuesday, Sept. 29, 2026, the full D.C. Circuit heard a three-hour argument on whether Judge James Boasberg (D.D.C.) may continue his criminal-contempt inquiry1 into why Trump administration officials carried out March 2025 deportation flights of Venezuelan immigrants to El Salvador after he ordered the flights stopped. DOJ lawyer Brett Shumate asked the court to terminate the probe as "unlawful, unnecessary, and futile," adding: "The district court judge here is going beyond the judicial role."
The procedural posture is itself the story: a 2-1 panel blocked Boasberg's probe in April, but all 11 sitting judges — seven Democratic appointees, four Republican — voted to rehear en banc. Several appeared skeptical of DOJ's position. Judge J. Michelle Childs said Boasberg was conducting "fact-finding to know what happened and know why there was a violation of the district court's order, oral and written." Judge Patricia Millett: "The district court has to find out what happened and who was in the room providing the advice." ACLU lawyer Lee Gelernt argued: "No prior DOJ or administrator has ever taken these kinds of egregious actions and been so disrespectful to the judiciary... If you don't uphold what this district court did, it will send a horrible message."
Boasberg previously concluded the administration appeared to have acted "in bad faith" when it hurriedly assembled the three flights while his emergency proceedings were underway, and he sought testimony from a senior DOJ lawyer and a former department attorney who became a whistleblower. The April panel had reasoned that the probe encroached on "the autonomy of the executive branch" and would "probe high-level Executive Branch deliberations about matters of national security and diplomacy."
What it means: This is the most direct appellate test yet of whether the judiciary can investigate executive defiance of its own orders2 — the same institutional confrontation visible in the contempt findings in Trump-Appointed Judge Holds DHS in Contempt — Again — for Deporting Protected Asylum Seeker to El Salvador Twice and the third-country removals fight in Third-Country Deportations: SCOTUS Lets Them Resume — Again — and Sets an Early-December Merits Argument. An en banc ruling either way will define the boundary between judicial contempt power and executive branch autonomy for the rest of this presidency.
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An instance of Defying court orders compounds into serial contempt findings, even from the president's own judges. — Ignored deportation-flight orders have escalated into an en banc test of whether courts may investigate executive defiance at all. ↩︎
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An instance of The fight has moved from the rulings to the courts' right to judge. — The en banc fight is over the courts' power to police defiance at all, not any single underlying ruling. ↩︎