COLUMN: DC Circuit en banc — the criminal contempt against Trump resumes, and it is historic

COLUMN: DC Circuit en banc — the criminal contempt against Trump resumes, and it is historic

Introduction: eleven judges against an administration that defies its own court orders

June 22, 2026: a rare en banc decision

On June 22, 2026, all 11 active judges of the DC Circuit made a move few commentators anticipated: they agreed to rehear en banc the case In re: Donald J. Trump (case number 25-5452), vacating the order of a three-judge panel that had halted Judge James Boasberg's criminal contempt inquiry. Oral arguments are set for September 29, 2026. This is a rare decision, heavy with meaning, and perhaps the most consequential of the entire Trump II judicial era.

The immediate context: what set all this in motion

It all starts with a single night in March 2025: 137 Venezuelan nationals, designated by the Trump administration as members of the gang Tren de Aragua, were loaded onto planes and sent to the CECOT prison in El Salvador — despite an express order from Judge Boasberg to suspend those deportations. The judge found "probable cause" for criminal contempt. A DC Circuit panel then blocked his inquiry in April 2026. On June 22, the full court undid that block.

What is federal criminal contempt? An explanation

The legal definition and its thresholds

Federal criminal contempt of court is a serious offense within the American judicial system. It can be applied when a person or entity deliberately violates a federal court order. For a judge to initiate criminal contempt proceedings, they must establish "probable cause" of intentional violation. This is not a routine administrative matter — it is a criminal procedure that can, in theory, lead to massive fines or imprisonment for those responsible.

Why this is unprecedented in modern times

There is no modern precedent for a criminal contempt proceeding launched by a federal judge against a sitting president of the United States or their administration. The few historical cases involving contempt against government agencies were generally resolved through negotiations or civil orders. What is unfolding in the Boasberg case is therefore without equivalent in recent American legal history — which explains why the DC Circuit judged it necessary to rule in full formation.

CECOT prison: what we actually know

A facility with a documented reputation

The Center for Terrorism Confinement (CECOT), located in Tecoluca, El Salvador, was built under President Nayib Bukele and inaugurated in 2023. Its capacity is 40,000 detainees. Human rights organizations including Human Rights Watch and Amnesty International have documented extreme conditions: overcrowding, sleep deprivation, no access to lawyers, allegations of torture. Salvadoran prisoners — some accused wrongly according to their families — have died in this facility.

The legitimacy of the designations

The Trump administration designated the 137 Venezuelans as members of Tren de Aragua on the basis of evidence that Judge Boasberg deemed insufficient to justify deportation without a hearing. Critics noted that the primary designation method used was the presence of tattoos — a criterion recognized by gang experts as highly imprecise. Some of the deportees reportedly claimed no criminal affiliation, without any ability to demonstrate it before a court, since they were given no hearing.

The timeline of the case: from March 2025 to June 2026

Key events, month by month

In March 2025, Judge Boasberg issues an emergency order to block the deportations. The Trump administration proceeds anyway. In April 2025, Boasberg declares that there is probable cause for criminal contempt. In May 2025, the Supreme Court orders that future deportees must receive reasonable notice and be able to contest their removal. In April 2026, a DC Circuit panel halts the contempt inquiry. On June 22, 2026, the full DC Circuit vacates that block and schedules oral arguments for September 29, 2026.

The role of the 174 former federal judges

A particularly notable element of this case is the filing of an amicus curiae brief — a friend-of-the-court submission — signed by 174 former federal judges. These individuals — Republicans and Democrats alike, appointed by presidents of different parties — co-signed a document affirming that the Trump administration had violated fundamental rule-of-law principles by ignoring court orders. This is not an ordinary political act. These are people who dedicated their careers to the bench, collectively saying: this time, it is different.

The April 2026 panel block and its significance

Why the panel halted the inquiry

The three-judge DC Circuit panel that blocked Boasberg's inquiry in April 2026 cited several arguments: first, that a criminal contempt inquiry against an executive administration raised separation-of-powers questions without clear precedent; second, that certain of Judge Boasberg's procedures were questionable from a procedural law standpoint. Those arguments did not persuade the full DC Circuit, which judged it necessary to revisit the question in full formation.

The reach of the en banc reversal

When the DC Circuit vacates one of its own panel decisions en banc, it sends a strong signal of institutional unity. The June 22, 2026 ruling means that a majority of the 11 active judges — not just a panel of three — believes the contempt inquiry can proceed. This is not yet a ruling on the merits: the September 29 oral arguments will allow both sides to make their case. But the mere fact that the court went this far is exceptional.

Kristi Noem and executive accountability

Secretary Noem at the center of the case

Secretary of Homeland Security Kristi Noem is one of the central figures in the criminal contempt case. It was under her supervision that the deportations to CECOT proceeded, despite Judge Boasberg's order. The judge explicitly named DHS officials in his probable-cause analysis. The en banc inquiry will turn in part on whether individual administration officials can be personally subject to a criminal contempt proceeding.

The doctrine of executive immunity and its limits

The Trump administration argued that executive officials enjoy substantial immunity in the exercise of their functions, and that the contempt inquiry constitutes a judicial intrusion into the conduct of foreign policy and immigration — domains reserved for the executive. Judge Boasberg rejected that argument, emphasizing that no immunity covers the deliberate violation of a court order. The en banc court must now settle this fundamental debate about the limits of executive immunity.

The separation-of-powers argument: who is right?

The Trump administration's thesis

The Trump administration contends that questions of immigration and foreign policy — including relations with El Salvador and the fight against gangs — fall exclusively within executive authority. A federal court, it argues, lacks the power to order the return of persons already deported to a sovereign foreign state. This argument draws on decades of jurisprudence recognizing the executive's prerogative in foreign affairs, and on the claim that Judge Boasberg's initial order was itself overreaching.

Judge Boasberg's thesis and the plaintiffs' position

Judge Boasberg and the immigrant defense organizations responded that the question is not whether the president can pursue aggressive immigration policy — he can — but whether a president can ignore an express court order on procedural grounds. Even in domains reserved to the executive, courts retain the authority to ensure that legal procedures are followed. When the Trump administration proceeded with the deportations despite Boasberg's order, it crossed that line.

September 29, 2026: what will happen at oral arguments

The format of en banc oral arguments

The oral arguments of September 29, 2026 before the DC Circuit en banc will convene with all 11 active judges present. Lawyers representing the 137 Venezuelans and their advocacy organizations will argue in favor of allowing the criminal contempt inquiry to proceed. Government lawyers will argue for ending the proceeding. Each side will likely have 20 to 30 minutes to present its strongest arguments before the full formation.

The central questions to be examined

Three principal questions will structure the arguments: first, can a federal judge launch a criminal contempt inquiry against an executive administration that violated an emergency order? Second, do DHS officials benefit from immunity that shields them from this proceeding? Third, was Boasberg's initial order legally valid, or was it itself problematic? The answer to all three questions will determine the future of the contempt inquiry.

The impact on other ongoing cases

A precedent for all immigration blocks

The DC Circuit en banc ruling will send ripples far beyond the case of the 137 Venezuelans. Dozens of other immigration cases involve court orders that the Trump administration has challenged, sometimes in similar terms. If the en banc court confirms the legitimacy of the criminal contempt inquiry, it signals to every other immigration administration: court orders are not optional, and violating them can carry criminal consequences for those responsible.

The effect on compliance culture within DHS

Inside DHS, the outcome of this case will shape how agents and officials interpret future court orders. If the contempt inquiry results in meaningful sanctions, it will create a stronger culture of compliance. If it is ultimately smothered by appeals, it will send the opposite message: court orders can be ignored with impunity. These cultural effects are less visible than the judicial decisions themselves, but they are equally important for the future of the rule of law in America.

The international reaction: what the world takes away

Allied democracies are watching

In Europe, Latin America, Canada, and other liberal democracies, the Boasberg case is being followed closely. Foreign constitutional lawyers have noted that what is happening in the United States — an administration ignoring court orders, and an appeals court trying to preserve its jurisdiction — is exactly the kind of institutional crisis that democratic constitutions are designed to prevent. NATO allies, already anxious about the direction of American foreign policy, are also watching to see whether American domestic institutions can hold.

America's image and rights diplomacy

The United States has long used its independent judiciary as an argument for its institutional superiority over authoritarian regimes. That rhetoric becomes harder to sustain when deportations to a prison described as a "concentration camp" by some human rights defenders take place in violation of court orders. El Salvador, Venezuela, UN human rights organizations — all have raised concerns that Washington struggles to credibly rebut when its own judges say something serious occurred.

The constitutional stakes: Humphrey's Executor and the separation of powers

A case at the heart of the great debates of 2026

The Boasberg case unfolds in the context of a systemic challenge to American institutional counterweights in 2026. Alongside this case, the Supreme Court must rule on several related matters concerning the president's power to fire heads of independent agencies. Those cases — Trump v. Cook (Federal Reserve) and Trump v. Slaughter (FTC) — all pose the same central question: how far does executive power reach, and who can stop it?

The accumulation of institutional challenges

What makes the judicial summer of 2026 extraordinary is the simultaneous accumulation of challenges to institutions that many considered unshakable. The Federal Reserve, the CFPB, the asylum system, electoral procedure, independent regulatory agencies — all face parallel challenges. The Boasberg case may be the most spectacular, but it is not isolated: it is part of a coherent pattern of systematic testing of the limits of judicial authority against the executive.

Boasberg himself: profile of a judge under pressure

An Obama appointee, respected across party lines

Judge James Boasberg, appointed by President Obama in 2011, has become — against his will — the symbol of judicial resistance to the Trump II administration. He presided over the FISA Court from 2020 to 2023, a secret national security court not known for progressive sympathies. His decision to initiate a criminal contempt inquiry is not the act of an activist — it is the act of a professional jurist who concluded that the administration violated his order and that the violation could not be ignored.

The personal pressures on the judge

Since the start of this case, Judge Boasberg has been the target of public attacks from senior Trump administration officials, including the president himself, who publicly called for his impeachment on social media. Those pressures — unprecedented in their intensity and public character — are themselves a factor in this case. The judge has maintained his position despite them. The DC Circuit en banc decision retroactively validates his perseverance.

The question of irreversibility: can the 137 still be helped?

Some have already returned to Venezuela

One of the most disturbing dimensions of this case is its partially irreversible character. According to reporting from spring 2026, some of the 137 Venezuelans deported to CECOT were released and repatriated to Venezuela as part of diplomatic exchanges between the Trump administration, El Salvador, and the Venezuelan government. Others remain detained at CECOT. Their fate now depends on complex diplomatic negotiations and decisions by the governments involved — not solely on American courts.

The limits of law when faced with a fait accompli

American courts cannot, in practice, order a foreign government to release detainees. They can order the American administration to "facilitate" a return or to cease its own actions. But if the administration refuses to cooperate and no effective sanction is imposed, the law remains powerless before the accomplished fact. This is the structural limit of any judicial system facing an executive determined to circumvent its orders: courts can rule, but they cannot physically bring people back from El Salvador.

The question of civil vs. criminal contempt: a crucial distinction

Why criminal contempt and not civil?

Judge Boasberg chose to establish probable cause for criminal contempt rather than civil contempt. This distinction is crucial. Civil contempt is typically used to compel a party to comply with a court order by imposing daily fines until the violation ceases. Criminal contempt, by contrast, is a sanction for a past and deliberate violation — it does not seek future compliance but punishes past conduct. Boasberg's decision to use the criminal framework signals his view that the violation of his order was neither accidental nor ambiguous.

The potential consequences for officials

If the criminal contempt inquiry proceeds and officials are found guilty, possible consequences include substantial fines and, theoretically, imprisonment. In practice, such sanctions against members of a presidential administration are without precedent in modern American history. The en banc court will have to manage a major institutional tension: maintaining judicial authority without provoking a constitutional crisis potentially more serious than the original violation.

Conclusion: a column about an institution that refuses to capitulate

What June 22, 2026 says about American courts

The DC Circuit en banc ruling of June 22, 2026 is a lesson in institutional resilience. In a climate where the Trump administration has systematically challenged judicial authority, where its spokespersons have attacked judges by name, where the president himself has called for impeachments, the courts have kept functioning. They have issued rulings — sometimes for the administration, sometimes against it. They have maintained their jurisdiction. And in this specific case, they refused to let a flagrant violation of a court order go unanswered.

What September 29 will tell us about the future

The oral arguments of September 29, 2026 may be the most revealing moment of the entire Trump II judicial era. The answer the 11 judges give to the central question — can a government ignore court orders without consequences? — will draw the contours of the American judicial system for decades to come. A strong answer will protect the rule of law. A weak answer will open a breach that other administrations, in other contexts, will not hesitate to exploit.

By Maxime Marquette, columnist

Columnist's transparency note

My convictions in this case

I believe that court orders must be respected by everyone, including the executive. I believe that sending people to CECOT without individual hearings is a grave violation of fundamental rights. I believe that American judicial institutions, despite their imperfections, are a necessary bulwark against the arbitrariness of power. These convictions shape my analysis, and I own them fully.

Sources and method

This article is based on reporting from ABC News, Bloomberg, Lawfare Media, Joyce Vance (Substack), and Verdict News. I did not have direct access to the court filings. I report the facts as published by these sources. No direct testimony has been invented.

Sources

Primary sources

ABC News — Full appeals court to hear arguments on contempt inquiry, CECOT — June 22, 2026

Bloomberg — Fight over Noem contempt hearing to be reheard by appeals court — June 22, 2026

Lawfare Media — The trials of the Trump administration — June 22, 2026

Secondary sources

Verdict News — DC Circuit grants en banc rehearing in In re Donald J. Trump — June 22, 2026

Joyce Vance (Substack) — Boasberg contempt proceedings — 2026

Colorado Politics — District court judges face repeated slap-downs by appeals courts — June 22, 2026