Judges Appear Open to Possible Kristi Noem Criminal Probe - Newsweek

Judges on the U.S. Court of Appeals for the D.C. 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 that 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 that 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 appeared skeptical of that position, noting that Boasberg had already found probable cause that contempt may have occurred and questioning how responsibility could be assigned without further inquiry.

"There is probable cause that there was contempt, and maybe it's nobody. And he doesn't want to be referring if it's nobody. Or maybe it's somebody, you know, mid-level or low down, or maybe it is somebody at the top," the judge said. "Somebody in the government knew about the timing of the planes and the timing of the hearing…that there was a willful violation."

The exchange came after judges repeatedly questioned Shumate's argument that Boasberg's inquiry should effectively end once the government identified Noem as the decision-maker. One judge suggested that the court did not have to accept the government's designation at face value and could reasonably seek to determine whether other officials or attorneys played a role in the alleged violation.

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 that 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 El 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, 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.

Several judges appeared unconvinced by the government's argument that Boasberg had already obtained all information necessary for a referral. Judges repeatedly pressed Shumate on how a district court could identify a proper contempt defendant if it lacked authority to seek additional information about who participated in the decision-making process and what they knew.

Judges also questioned whether responsibility, if any, would necessarily stop with Noem. During one exchange, a judge asked whether an attorney who advised the secretary she could proceed despite the court's order "would just as well be in contempt of court as the Secretary."

The judges' questions Tuesday suggested at least some members of the court believe Boasberg cannot determine whether Noem, administration lawyers or another official bears responsibility unless the fact-finding process is allowed to continue.

The controversy stems from March 2025, when the Trump administration sought to deport Venezuelan migrants it alleged were linked to the Tren de Aragua gang under the Alien Enemies Act.

While two deportation flights were already airborne, Boasberg issued an order temporarily blocking the removals and directing that migrants not be deported pending further proceedings.

Despite the judge's intervention, the flights continued to El Salvador, where the detainees were placed in the country's CECOT maximum-security prison.

Boasberg later concluded that there was probable cause to believe the government had deliberately violated his order and began exploring whether criminal contempt proceedings were warranted.

Government attorneys have argued that the situation is more complicated than the district court has suggested.

They have maintained that Boasberg's instructions were initially delivered orally and that the subsequent written order prohibited the "removal" of migrants but did not explicitly require the return of individuals who had already departed the United States.

Those arguments formed part of the government's broader defense that officials acted within their understanding of the court's directives rather than in deliberate defiance.

Tuesday's hearing occurred because the full D.C. Circuit agreed to revisit a ruling issued by a divided three-judge panel.

In April 2026, that panel ordered Boasberg to halt his contempt investigation, concluding that the judge had exceeded his authority and improperly sought information about high-level executive branch deliberations involving national security and foreign affairs.

The panel majority also found that the written order at issue lacked sufficient clarity to support criminal contempt proceedings related to the migrants' transfer to Salvadoran custody, a decision that temporarily stopped Boasberg's efforts to gather additional testimony and evidence.

The full court's decision to rehear the case signaled that at least some judges believed the issues warranted further examination.

Comments during Tuesday's session suggested several members of the en banc court may be concerned about ending the inquiry before determining exactly who made critical decisions and what information was available at the time.

If the full D.C. Circuit allows the probe to continue, Boasberg could resume efforts to determine whether a specific official knowingly violated a court order and whether the facts justify a criminal contempt referral.

Such a ruling would not mean anyone has been found guilty of misconduct. Rather, it would permit the district court to continue investigating who, if anyone, bears responsibility.

Noem has not been charged with a crime, and the outcome of the appeals court's review remains uncertain.

Contact Newsweek editors on this story: Jason Lemon and Sam Wilson.