Appellate Court Slaps Down Judge Boasberg's Harassment of the Department of Justice

 

Judge Boasberg Must Stop "Criminal Contempt" Proceedings Against the Department of Justice Due to Lack of Jurisdiction

 

Our favorite jurist has just been overruled by a higher court on yet another issue relating to the attempts to deport Mr. Abrego-Garcia.  As discussed in prior posts, such as this one, Judge Boasberg has repeatedly attempted to exercise his jurisdiction over the details of enforcement of immigration law, from holding (wrongly) that the United States government should be enjoined from using the Alien Enemies Act to attempting to direct the government planes already in the air (again wrongly).  Key to his errors is the idea (again, which is very, very wrong) that the equitable jurisdiction of his trial Article III court is virtually unlimited.

 

Yesterday the Court of Appeal for the District of Columbia, a "circuit court" that sits just below the Supreme Court, issued another judicial opinion designed to rein in Judge Boasberg.  Following his Temporary Restraining Orders (TROs) to the effect that Mr. Kilmar Abrego-Garcia be returned to the United States even though the plane carrying him had already left the United States, Mr. Boasberg became incensed that Mr. Abrego-Garcia's plane did not turn around but instead landed and this gentlemen was then sent to his home country of El Salvador and not immediately returned to our fair land.  He therefore brought criminal contempt proceedings against attorneys in the Department of Justice, apparently because he was powerless to further harass the President of the United States himself, and instead decided to bully those with less power, including attorneys in his courtroom. 

 

But no longer.  The Court of Appeal for the District of Columbia made it very clear Judge Boasberg must stop such contempt proceedings immediately. The two TRO's at issue barred removal of Mr. Abrego-Garcia but it was not clear is this included prevention of removal from the United States (he was, of course, already in the air and outside of our country) or also precluded handing him over to another country.  The latter had not yet occurred when either TRO was issued.  Of course, a judge has no jurisdiction to begin criminal contempt proceeding unless the TRO has been "clear and reasonably specific" in what actions are prohibited.  But here there was no jurisdiction to punish the conduct of the DOJ lawyers because, inter alia, the Supreme Court has since vacated Judge Boasberg's TROs:

Indeed, as concurring Justice Roa explained, Judge Boasberg's "abuse of the contempt power is especially egregious" because here there are "separation of power[s] overtones" as the Judicial Branch attempts to change the policy of the Executive Branch and hold a cabinet-level officer and her subordinates in contempt:

 

 

The full text of the opinion may be found here: 

 

 https://media.cadc.uscourts.gov/opinions/docs/2025/08/25-5124-2129262.pdf

 

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A brief analysis of the recent United States Supreme Court case on the use of “emergency” tariffs

 

Someone asked whether I agreed with the recent decision in Learning Resources v. Trump (2026) No. 24–1287), finding our president had exceeded his power to issue tariffs under the supposed “emergency“ authority of what is called the International Emergency Economic Powers Act of 1977, 50 U. S. C. §1701 et seq.  After reflection, my response surprised even myself, this being that is that I do not really have any real disagreement with either of the majority , concurrence, or the dissent. This is because while Congress did in fact make it clear that the president has strong powers over trade, including the ability to actually stop specific trade, the way this “emergency” power is defined is rather broad but still somewhat amorphous, i.e., it is based upon an “unusual and extraordinary threat.”  While I do believe very strongly that statutes should be construed succinctly and with respect to their intent,  the fact that Congress did not see fit to give sufficient guidance as to what is or is not “emergency“ means and the full scope of this emergency power means that one make a reasoned argument, both in favor and against, as to including tariffs under the broad powers granted by Congress to the President under IEPA.

Having said that, I thought the best arguments were put forth in the concurring opinion of Justice Gorsuch, who cogently pointed  out that under IEPA the President has the statutory power to entirely prohibit certain aspects of trade.  This Justice also provided logical analysis as to how the power delegated by IEPA should be construed.   The concurrence found the “major questions doctrine” applied, limiting the scope of the delegation of power in IEPA:  

In several cases described as involving ‘major questions,’ the Court has reasoned that “both separation of powers principles and a practical understanding of legislative intent” suggest Congress would not have delegated “highly consequential power” through ambiguous language. (Id., p. 3.)

As Justice Gorsuch further explained,  permitting “emergency tariffs” under IEPA would grant the executive branch broad swaths of power which would be both unreviewable and beyond the enumerated powers found in Article II, powers instead reserved for Congress under Article I:

This case offers an example of the problem. Article I grants Congress, not the President, the power to impose tariffs. Still, the President claims, Congress passed that power on to him in IEEPA, permitting him to impose tariffs on nearly any goods he wishes, in any amount he wishes, based on emergencies he himself has declared. He insists, as well, that his emergency declarations are unreviewable. A ruling for him here, the President acknowledges, would afford future Presidents the same latitude he asserts for himself. See Tr. of Oral Arg. 69. So another President might impose tariffs on gas-powered automobiles to respond to climate change. Ibid. Or, really, on virtually any imports for any emergency any President might perceive.  And all of these emergency declarations would be unreviewable. Just ask yourself: What President would willingly give up that kind of power? (Id., p. 17; citations omitted.)

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A comment on the Winter Olympics and Sportsmanship

 

In this post, I wanted to talk about the Winter Olympics highlights that I showed my three children:  one preteen and two teenagers. I think the lessons I tried to instill in my children from these videos are also relevant for those of us who practice law. 

I first showed them a video of American Alysa Liu winning the women’s figure skating championship. I showed them the joy and camaraderie her competitors showed when she won the gold medal, an honor she clearly deserved. 

I also showed them highlights of the stunning United States men’s hockey team’s victory over the Canadian team. I showed them because I was impressed with the win, and also with the joyful and patriotic behavior of the winning team.  

Alas, I was also forced to show them the reaction of the Canadian team when they lost during an overtime period.  Though the Canadians played extraordinarily well, I was stunned that their response was largely to remain sullen rather than congratulate their opponents. I was forced to use them as an example, as I explained to my children that this is never an appropriate response when someone wins fair and square.

I mention this specifically because I am surprised, no matter my extensive experience, at the “unsportsmanlike“ behavior of many lawyers toward one another.  I do not gloat when and if my client prevails, yet I have frequently been confronted by the boorish behavior of opposing counsel, who often continue their exaggerated claims that their client is entitled to millions of dollars in damages, even in the aftermath of a defense verdict on issues of liability.   

 

It is the rare counsel on the other side who shows class and congratulates our firm, as we of course congratulate our opposing counsel when they win. 

 

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The full penalty of the KLAN and FACE Acts should be borne by those who harassed Christians during worship

 

 

 

In the past few weeks, we have watched organized, pre-planned protesters in Minnesota attempting to kill a law enforcement officer with a vehicle, intentionally and violently damage the tail lights on law enforcement’s vehicle, bite the finger of a law enforcement officer, and commit other crimes in pursuit of the larger — and illegal — goal of attempting to impede law enforcement.  Other than the attempt to kill and maim officers by ramming them with a vehicle, perhaps the worst criminal conduct occurred when activists invaded, harassed, and threatened parishioners at a Church celebrating mass.  Such actions clearly violate statutory protections designed to prevent persons from making a political or social “point” by preventing others from exercising their First Amendment rights.

First we have The Klan Act (See https://teachingamericanhistory.org/document/the-enforcement-acts/) stating:


Be it enacted…That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress….        
Sec. 2. That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force the government of the United States…or by force, intimidation, or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, or from discharging the duties thereof…or to injure him in his person or property on account of his lawful discharge of the duties of his office, or to injure his person while engaged in the lawful discharge of the duties of his office…or by force, intimidation, or threat to deter any party or witness in any court of the United States from attending such court…or shall conspire together for the purpose in any manner impeding, hindering, obstructing or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws…or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy in a lawful manner towards or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy, each and every person so offending shall be deemed guilty of a high crime….         
Sec. 3. That in all cases where insurrection, domestic violence, unlawful combinations, or conspiracies in any State shall so obstruct or hinder the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitution and secured by this act, and the constituted authorities of such State shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States; and in all such cases…it shall be lawful for the President, and it shall be his duty to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary for the suppressions of such insurrection, domestic violence, or combinations….
Sec. 6. That any person or persons, having knowledge that any of the wrongs conspired to be done and mentioned in the second section of this act are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse to do so, and such wrongful act shall be committed, such person or persons shall be liable to the person injured . . . for all damages caused by any such wrongful act which such first-named person or persons by reasonable diligence, could have prevented . . . .


Just as pertinent is the FACE Act, which provides:

(a) Prohibited Activities.—Whoever—
(1)
by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;
(2)
by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship; or
(3)
intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship,
shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c), except that a parent or legal guardian of a minor shall not be subject to any penalties or civil remedies under this section for such activities insofar as they are directed exclusively at that minor.

Such laws have stood the test of time and challenges that state these laws are illegal because they criminalize behavior classified as protected by the First Amendment, as if someone’s own First Amendment rights immunize someone form civil or criminal liability when they who attempt to suppress the exercise of First Amendment rights of others.  In Minnesota, a so-called journalist, who does not deserve any further notoriety, has recently made this claim of First Amendment protection of his criminal behavior, a claim that has no legal merit when these statutes are viewed in an ideologically neutral manner.  Not only has this vile individual been caught on video bragging about planning to interrupt a church service, but there is no evidence that he, for example, stood outside the church and recorded and commented upon the hideous and illegal actions of the aggressive activists against the parishioners.  

 

Instead, this person and the others who participated in the denial of the civil rights of those at the church and should now face the full criminal penalty provided for by the FACE and KLAN Acts.

 

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Farewell to Scott Adams, the beloved creator of "Dilbert"

We recently lost esteemed and beloved creative genius Scott Adams.  His “Dilbert“ comic strip skewered corporate America and it’s hypocrisy, personalities, buzzwords, and, most of all, the corporate mania for not paying for the scope of the work actually done by cubicle dwellers -- and, conversely, found humor in the the slice of employees who are allergic to actually producing anything. 

 

Who can forget the co-worker “Bottleneck," the clueless pointy–haired boss, and, of course the evil HR Director "Catbert." 

 

His keen observations will be sorely missed. 

 

 

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Follow up to post "Order Granting New Trial Upheld Where Plaintiff’s Counsel Improperly Violates Pre-Trial Orders by Arguing “Reptile Theory," etc."

 

 

This post is a follow-up to our prior post about attorney misconduct in violating a motion in limine preventing improper “reptile theory” and “golden roll“ arguments. (See blogger.com/blog/post/edit/5476224163973754209/4369127834107886388.)we 

 

Unfortunately, it is a frequent occurrence that trial counsel blatantly ignore pretrial rulings as to evidence and, indeed, court rulings in other contexts as well.  In circumstances of such attorney misconduct, it is important to realize there are various provisions that provide for consequences, including, but not limited to, both court-room specific rules and local rules as well as California's state-wide rules.  

 

One such provision is California Rules of Court, Rule 2.30, entitled "Sanctions for rules violations in civil cases."  This rule provides for monetary sanctions and states in full:

 

 

(a) Application

This sanctions rule applies to the rules in the California Rules of Court relating to general civil cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate division of the superior court, and small claims cases.

(Subd (a) amended effective January 1, 2004; adopted effective July 1, 2001.)

(b) Sanctions

In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules. For the purposes of this rule, "person" means a party, a party's attorney, a witness, and an insurer or any other individual or entity whose consent is necessary for the disposition of the case. If a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party's cause of action or defense thereto.

(Subd (b) amended effective January 1, 2007; adopted as untitled subdivision effective January 1, 1985; amended and relettered effective July 1, 2001; previously amended effective January 1, 1994, and January 1, 2004.)

(c) Notice and procedure

Sanctions must not be imposed under this rule except on noticed motion by the party seeking sanctions or on the court's own motion after the court has provided notice and an opportunity to be heard. A party's motion for sanctions must (1) state the applicable rule that has been violated, (2) describe the specific conduct that is alleged to have violated the rule, and (3) identify the attorney, law firm, party, witness, or other person against whom sanctions are sought. The court on its own motion may issue an order to show cause that must (1) state the applicable rule that has been violated, (2) describe the specific conduct that appears to have violated the rule, and (3) direct the attorney, law firm, party, witness, or other person to show cause why sanctions should not be imposed against them for violation of the rule.

(Subd (c) amended effective January 1, 2007; adopted effective July 1, 2001; previously amended effective January 1, 2004.)

(d) Award of expenses

In addition to the sanctions awardable under (b), the court may order the person who has violated an applicable rule to pay to the party aggrieved by the violation that party's reasonable expenses, including reasonable attorney's fees and costs, incurred in connection with the motion for sanctions or the order to show cause.

(Subd (d) amended effective January 1, 2007; adopted effective July 1, 2001; previously amended effective January 1, 2004.)

(e) Order

An order imposing sanctions must be in writing and must recite in detail the conduct or circumstances justifying the order.

 

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