A federal appeals court is set to consider Tuesday whether a criminal contempt inquiry into the Trump administration can proceed over the deportation of Venezuelan migrants to El Salvador, with former Homeland Security Secretary Kristi Noem at the center of the dispute.
The government identified Noem as the official responsible for the decision to allow Venezuelan detainees to be transferred to El Salvador’s CECOT prison in March 2025, despite a judge’s order blocking their removal. The full DC Circuit will hear arguments over whether a judge can continue his inquiry and potentially make a criminal contempt referral.
The Dispute
The issue stems from events in March 2025, when the Trump administration moved to deport Venezuelan migrants it alleged were members of the Tren de Aragua gang under the Alien Enemies Act.
Two planes carrying detainees were already in the air on March 15, 2025, when Judge James Boasberg issued a temporary restraining order barring the government from removing the migrants for 14 days. However, the planes carrying the migrants continued to El Salvador.
The Supreme Court vacated Boasberg’s order a few weeks later, finding that the migrants’ legal challenges had to be brought in the federal districts where they were detained. However, Boasberg continued pursuing his contempt inquiry, saying the later ruling did not excuse the government’s potential violation of his order.
The Government’s Argument
Boasberg said in April 2025 that he had found probable cause to believe the government had deliberately violated his order and said he was considering a criminal contempt inquiry. Months later, the government identified Noem as the official responsible, saying she made the decision after receiving advice from government lawyers.
The government argued that because Boasberg’s initial order was given orally after the planes had already taken off, it was not binding. The government noted that when the court issued a written order less than an hour later, it barred the government from “removing” the migrants but did not explicitly order the return of migrants who had already departed.
The Appeals Court
In April 2026, a three-judge appeals court panel, in a split decision, ordered Boasberg to end the criminal contempt inquiry. The majority opinion said the written order was not sufficiently clear to support criminal contempt over the transfer of the migrants to Salvadoran custody. It also said Boasberg had gone too far by seeking to investigate “high-level Executive Branch deliberations about matters of national security and diplomacy.”
The full DC Circuit has agreed to reconsider the panel’s decision. If the court allows the inquiry to proceed, Noem could face a criminal contempt referral over her role in the decision. Noem, whom President Donald Trump removed as secretary of Homeland Security in March 2026, has not been charged with a crime.
In August, 204 former judges urged the appellate court to allow the contempt inquiry to continue, calling the district court’s investigation “wholly proper and appropriate.”
The Bottom Line
The full DC Circuit will hear arguments Tuesday on whether a criminal contempt inquiry into Kristi Noem can proceed over deportation flights to El Salvador that continued despite a judge’s order. The government says Noem authorized the transfer after receiving legal advice. A three-judge panel previously ordered the inquiry to end, but the full court is reconsidering. Noem has not been charged. More than 200 former judges have urged the court to allow the investigation to continue.
My Opinion
The question before the DC Circuit is not whether Kristi Noem is a criminal. It is whether a federal judge has the authority to investigate whether the government defied his order. If the answer is no, then court orders are suggestions. And if court orders are suggestions, the rule of law is a slogan.
The government’s argument is technical: the oral order came after the planes took off, the written order did not explicitly say “turn around,” and the Supreme Court later vacated the restraining order anyway. Those are legal arguments. They may even be persuasive to some judges. But they miss the point. Judge Boasberg issued an order. The planes kept flying. The migrants ended up in CECOT. Someone made that decision. The public deserves to know who and why.
More than 200 former judges — people who have spent their careers on the bench — have urged the court to let the inquiry proceed. That is not a partisan statement. It is a statement about the integrity of the judiciary. If a judge cannot investigate whether his own order was violated, then the entire system of checks and balances is a facade. Noem may ultimately be cleared. But the investigation should happen. Anything less is a concession that some people are above the law.
