D.C. Circuit’s Argument Over Criminal Contempt Inquiry

SPEAKER_1 (0:07)

Today on Lawfare No Bull, on September 29th, all 11 active judges on the US. Court of Appeals for the DC. Circuit heard oral argument over Chief District Judge James Boasberg's inquiry into whether the Trump administration ignored a court order halting immigration removals under the Alien Enemies Act. During the hearing, Justice Department attorney Brett Shumate argued that Boasberg's probe into other contenders beyond then-Secretary Kristi Noem was out of line. ACLU attorney Lee Gelernt said that the Trump administration was attempting to strip federal courts of their ability to hold the government accountable and more.

Brett Shumate (0:43)

The district court in this case has decided to press forward with a criminal contempt investigation, even though three judges on this court have already concluded that the TRO did not clearly and specifically prohibit the government's conduct. But even setting that aside, there is no basis for any further investigation in this case, because the district court has already found probable cause that the government willfully violated the TRO, and it already has all the information that the district court previously said that it needed in order to make a referral.

Despite all of this, including the Supreme Court's vacater of the TRO, the district court is now investigating the mental state of senior government officials. It has demanded that the government's litigation council testify in a quasi grand jury, and it has even invited the ACLU to participate in the court's criminal investigation of the government. Under these extraordinary circumstances, mandamus is warranted because the district court's investigation is unlawful, unnecessary and futile.

Patricia Millett (1:43)

So, Mr. Shumate, this case has been before the Amban Court before. Last November, we considered an Amban petition regarding another mandamus petition regarding these same contempt proceedings. And when we resolved that prior petition, a majority of the active judges of this court opined that the district court could proceed with its contempt inquiry and it had done nothing improper. After our mandate issued, this case was back before the district court for just three weeks before the government filed an instant mandamus petition.

So it seems to me that for you to prevail in this case, you would have to identify something that happened in those three weeks, that was clear error by the district court, that was new and different from the claims that you previously made and that we implicitly rejected. And if your problem is with the procedure that he conducted, it seems that that would have to be something clearly erroneous and different from what we anticipated when a majority of the judges here said that the inquiry could proceed. So I guess my question is, what is it that happened during those three weeks that justified the government coming back so quickly with another mandamus petition?

Brett Shumate (2:59)

Well, thanks for the question, Your Honor. What's different is that the government identified the decision maker. That was, what was that issue in the prior mandamus proceeding? A number of judges on this court said it was acceptable for the district court to ask for that information. The government then provided that information, identified Secretary Noem as the decision maker.

SPEAKER_4 (3:16)

But do we have to just accept what you say? That you just say that there's a particular decision maker who put forward that they were responsible for an activity and the district court judge is supposed to just accept that at face value?

Brett Shumate (3:30)

Well, the district court has not suggested that that Secretary Noem was not the decision maker. The whole basis of the further investigation.

SPEAKER_4 (3:36)

But maybe there's other facts that the district court needs to find out about in terms of being inquisitive about whether the order was actually violated.

Brett Shumate (3:45)

Well, I think this is where the district court crossed the line because the district court is investigating criminal contempt and in our system of government, district judges do not investigate or prosecute crimes. That's a role for a prosecutor. The purpose of the investigation at this point is no longer, let's figure out who the decision maker was. It is now, let's probe the mental state of senior government officials.

SPEAKER_4 (4:06)

You're calling it an investigation. Could it just be fact-finding to know what happened and why there was a violation of the district court's orders, oral and written?

Brett Shumate (4:14)

Well, the district court has already found that there was a violation, and the district court now has all the information that it previously said it needed in order to make a referral, but something has changed.

SPEAKER_4 (4:24)

But it must not have because the district court asked for two witnesses to testify.

Brett Shumate (4:29)