Circuit on Tuesday appeared receptive to allowing Chief U.S. District Judge James Boasberg to continue investigating who may have been responsible for an alleged violation of a court order tied to deportation flights carrying Venezuelan migrants to El Salvador. The full appeals court is considering whether to overturn an earlier split-panel ruling that shut down Boasberg's investigation, with the majority previously arguing the probe should be halted to prevent the district court from encroaching on Executive Branch authority.
The outcome could determine whether a criminal contempt inquiry remains alive and whether responsibility falls with former Homeland Security Secretary Kristi Noem, attorneys who advised her, or another government official. The judges' questioning suggested concern about ending the investigation before identifying a responsible party. Much of the questioning was directed at Assistant Attorney General Brett Shumate, who argued the inquiry should not continue and that continued judicial fact-finding should not attribute responsibility for the alleged violation to an unidentified individual.
One judge noted that there was already "probable cause" to believe contempt may have occurred and said Boasberg did not want to refer a case if "it's nobody," adding that the responsible person could be "somebody, you know, mid-level or low down, or maybe it is somebody at the top." Tuesday's arguments came after the full D.C. Circuit took the unusual step of rehearing the case en banc following an April decision by a divided three-judge panel that blocked the investigation. The panel majority concluded Boasberg had exceeded his authority by probing internal executive branch deliberations and ordered the inquiry halted.
The full court later agreed to revisit that ruling. In August, roughly 200 former judges filed an amicus brief urging the appeals court to allow the investigation to continue, calling the district court's contempt inquiry "wholly proper and appropriate." The judge also pointed to allegations that someone in the government knew both the timing of the deportation flights and the court hearing, raising questions about whether there had been a "willful violation of a court order." At the center of the controversy is Noem, whom the government previously identified as the official who made the final decision to allow Venezuelan detainees to be transferred to Salvadoran custody. According to court filings, the government has maintained that Noem acted after receiving legal advice from administration attorneys regarding the scope and effect of Boasberg's orders.
That advice has become a focal point of the litigation. In December 2025, Boasberg ordered government attorneys Erez Reuveni and Drew Ensign, who advised officials during the dispute, to prepare to testify as the court sought to determine whether the migrants' transfer resulted from deliberate disregard of the order or a legal interpretation of its scope. Boasberg's inquiry has sought to determine whether Noem knowingly disregarded a court directive or whether she relied on legal guidance that led her to believe the judge's oral instructions were not binding.
The answer could affect whether responsibility falls on Noem herself, the attorneys who provided advice, or another government official involved in the decision-making process. During Tuesday's arguments, judges repeatedly returned to individual accountability. One judge observed that there were "reputational issues" for anyone referred for contempt proceedings and said a district judge had a responsibility to identify the proper individual before making such a referral.
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