J.G.G. v. Donald Trump

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided August 8, 2025

No. 25-5124

J.G.G., ET AL.,

APPELLEES

v.

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT

OF THE UNITED STATES, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia and

Emergency Motion for a Stay Pending Appeal or,

in the Alternative, a Writ of Mandamus

(No. 1:25-cv-00766)

Pamela J. Bondi, Attorney General, U.S. Department of

Justice, Yaakov M. Roth, Principal Deputy Assistant Attorney

General, Drew C. Ensign, Deputy Assistant Attorney General,

Emil Bove, Principal Associate Deputy Attorney General, and

Chad Mizelle, Acting Associate Attorney General, were on

appellants’ emergency motion for a stay pending appeal or, in

the alternative, a writ of mandamus and the reply. August E.

Flentje, Acting Director, entered an appearance.

2

Richard P. Hutchison was on the brief for amicus curiae

Landmark Legal Foundation in support of appellants.

Lee Gelernt, Daniel Galindo, Ashley Gorski, Patrick

Toomey, Omar Jadwat, Hina Shamsi, My Khanh Ngo, Cody

Wofsy, Arthur B. Spitzer, Scott M. Michelman, Aditi Shah,

Somil B. Trivedi, Bradley Girard, Michael Waldman, Sarah

Rich, Audrey Wiggins, Christine L. Coogle, and Pooja Boisture

were on appellees’ motion to dismiss the appeal and opposition

to appellants’ emergency motion for a stay pending appeal or,

in the alternative, a writ of mandamus.

Before: PILLARD, KATSAS, and RAO, Circuit Judges.

Opinion for the Court filed Per Curiam.

Concurring opinion filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge PILLARD.

Per Curiam: This matter arises from challenges to the

government’s removal of alleged members of the transnational

criminal gang Tren de Aragua (TdA) pursuant to a presidential

proclamation designating TdA members as alien enemies

under the Alien Enemies Act, 50 U.S.C. § 21. Invocation of

the Alien Enemies Act Regarding the Invasion of the United

States by Tren de Aragua, 90 Fed. Reg. 13,033 (Mar. 20, 2025).

On March 15, 2025, five alleged TdA members sued on their

own behalf and as representatives of a proposed class to direct

the President, the Secretary of State, the Attorney General, the

Secretary of Homeland Security, and the Acting Director of

Immigration and Customs Enforcement to halt their impending

removals pursuant to the proclamation. That same day, the

district court held an emergency hearing, provisionally

3

certified a class of aliens subject to the proclamation, and

issued a temporary restraining order (TRO) barring their

removal. The government nonetheless flew class members

from the United States to El Salvador and transferred them into

the custody of Salvadoran authorities. According to the

government, the TRO barred only the removal of class

members from United States territory, which had already

occurred before the TRO was entered. According to the district

court, the TRO barred the removal of class members from

United States custody, and the government likely violated it by

transferring the class members into Salvadoran custody after

the TRO was entered.

In response to these events, the district court issued an

order and accompanying opinion finding probable cause that

some federal officials willfully violated the TRO. The court

offered the government an option to “purge” the putative

contempt by asserting custody over the removed individuals or

proposing other methods of coming into compliance. Order,

J.G.G. v. Trump, No. 25-cv-766 (JEB), Dkt. No. 80 (D.D.C.

Apr. 16, 2025); see Memorandum Opinion, J.G.G. v. Trump,

No. 25-cv-766 (JEB), 2025 WL 1119481, at *20 (D.D.C. Apr.

16, 2025) (the government may “propose other methods of

coming into compliance, which the Court will evaluate”). The

court also stated that, if the government opts not to purge, it

must identify the Executive Branch officials who, aware of the

court’s TRO, made the decision not to halt the transfer of class

members out of U.S. custody on March 15 and 16, 2025.

Order, Dkt. No. 80. The court further stated that its “next step

would be” to “request that the contempt be prosecuted by an

attorney for the government.” Memorandum Opinion, 2025

WL 1119481 at *21 (quoting Fed. R. Crim. P. 42(a)(2)). And

it stated: “If the government ‘declines’ or ‘the interest of

justice requires,’ the Court will ‘appoint another attorney to

prosecute the contempt.’” Id. (quoting same rule).

4

The government appealed the probable-cause order and

moved for an emergency stay or a writ of mandamus

terminating the criminal-contempt proceedings. The plaintiffs

moved to dismiss the appeal. This Court granted an

administrative stay pending consideration of these motions.

We grant the appellees’ motion to dismiss the appeal for

lack of appellate jurisdiction. See Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541 (1949); I.A.M. Nat’l Pension Fund

Benefit Plan A v. Cooper Indus., Inc., 789 F.2d 21, 24 (D.C.

Cir. 1986). The panel is unanimous on this point.

Judge Katsas and Judge Rao conclude that the government

has satisfied the stringent requirements for a writ of mandamus.

The Court therefore grants the government’s petition for

mandamus and vacates the district court’s probable-cause

order. Judge Pillard dissents from the grant of mandamus and

the vacatur.

KATSAS, Circuit Judge, concurring: This case involves an

extraordinary, ongoing confrontation between the Executive

and Judicial Branches. On March 15, 2025, the Executive

sought to implement a presidential proclamation mandating the

swift, wholesale removal of adult members of the Venezuelan

criminal gang Tren de Aragua (TdA)—a designated foreign

terrorist organization. This operation required precise

coordination among at least three different sovereign nations,

as planes carrying more than 100 alleged TdA members flew

from Texas to Honduras to El Salvador. The operation also

involved a transfer of physical custody over these detainees

from the United States to El Salvador, accomplished at a

Salvadoran airport with Salvadoran security forces assembled

en masse. But while this operation was ongoing, five alleged

TdA members sued in Washington, D.C. to prevent the

removals, and the district court urgently attempted—within a

matter of hours—to preliminarily assess their lawfulness.

After flights carrying some of the alleged TdA members had

exited United States airspace, the court, through a minute order,

temporarily restrained the removals. According to the

Executive Branch, the removals had already occurred before

the TRO was entered. According to the district court, the

Executive carried out the removals in defiance of the TRO.

In response to these events, the district court initiated a

criminal-contempt proceeding. The court found probable

cause that some federal officials willfully violated the TRO,

and it ordered the government to identify who. The court

offered to stand down if the Executive Branch chose to purge

the putative contempt by asserting custody over the removed

individuals—Venezuelan nationals then being detained by the

Salvadoran government in El Salvador. If necessary, the court

promised to appoint a private attorney to prosecute the

responsible Executive Branch officials. And it did all this to

vindicate a TRO that the Supreme Court had vacated for lack

of jurisdiction. The district court’s order raises troubling

questions about judicial control over core executive functions

2

like the conduct of foreign policy and the prosecution of

criminal offenses. And it implicates an unsettled issue whether

the judiciary may impose criminal contempt for violating

injunctions entered without jurisdiction.

At the end of this dispute lies a much simpler question. By

its terms, the TRO prohibited the government from “removing”

suspected TdA members. This prohibition could be interpreted

in either of two ways. It might have barred the government

simply from expelling detainees from United States territory.

Or, it might have barred the government from surrendering

custody of the detainees to a foreign sovereign. All agree that

the government did not violate the TRO under the former view,

so the contempt question boils down to a straightforward

interpretive dispute over what constituted “removing” within

the meaning of the TRO. For purposes of criminal contempt,

ambiguities in the underlying injunction must be resolved in

favor of the alleged contemnor. At the time of the alleged

contempt, just hours after the TRO hearing and before any

transcript of it was available, the district court’s minute order

could reasonably have been read either way. Thus, the TRO

cannot support a criminal-contempt conviction here.

The government has sought review of the probable-cause

order by way of appeal and mandamus. There is no basis for

interlocutory appellate jurisdiction. Nonetheless, mandamus is

appropriate because the government is plainly correct about the

merits of the criminal contempt, and our saying so now would

prevent long disputes between the Executive and the Judiciary

over difficult, contentious issues regarding the courts’ power to

control foreign policy or prosecutions, or to impose criminal

sanctions for violating injunctions entered without jurisdiction.

In circumstances much less fraught than these, courts have

reviewed interlocutory orders through mandamus to prevent

extended inter-branch conflict.

3

For these reasons, I concur in the order granting the

petition for mandamus and vacating the probable cause order.

I

A

The Alien Enemies Act authorizes the President, during

times of conflict, to remove aliens with allegiance to a hostile

foreign nation. The statute applies whenever the United States

is in a declared war or “any invasion or predatory incursion is

perpetrated, attempted, or threatened against the territory of the

United States by any foreign nation.” 50 U.S.C. § 21. In those

circumstances, the President may “make[] public proclamation

of the event,” in which case all nationals of the hostile country

who are at least 14 years old and “within the United States”

become “liable to be apprehended, restrained, secured, and

removed as alien enemies.” Id.

Tren de Aragua is a transnational criminal organization

based in Venezuela. On February 20, 2025, the Secretary of

State designated TdA as a foreign terrorist organization under

the Antiterrorism and Effective Death Penalty Act of 1996.

That statute allows the Secretary of State, after consulting with

the Secretary of the Treasury and the Attorney General, to

designate as a “foreign terrorist organization” any foreign

group engaging in terrorism that “threatens the security of

United States nationals or the national security of the United

States.” 8 U.S.C. § 1189(a)(1)(C); see id. § 1189(a)(1), (d)(4).

To support such a designation, the Secretary must make

findings based on an administrative record. See id.

§ 1189(a)(2)(A)(i), (3)(A). The designated FTO may seek

judicial review. See id. § 1189(c)(1); Nat’l Council of

Resistance of Iran v. Dep’t of State, 251 F.3d 192, 196–97

(D.C. Cir. 2001). The consequences of a designation are

severe: Alien members of a designated FTO are inadmissible

4

to the United States. 8 U.S.C. § 1182(a)(3)(B)(i)(V), (vi)(I). It

is a criminal offense to knowingly provide material support to

the FTO. 18 U.S.C. § 2339B(a)(1). And the FTO’s funds are

frozen. Id. § 2339B(a)(2). Prior administrations had imposed

other sanctions to curb TdA’s human and drug trafficking in

the United States. See Notice of OFAC Sanctions Actions, 89

Fed. Reg. 57,994 (July 16, 2024); Treasury Sanctions Tren de

Aragua as a Transnational Criminal Organization, U.S. Dep’t

of the Treasury (July 11, 2024), https://perma.cc/6FYN-JMGP.

On Friday, March 14, 2025, the President issued an AEA

proclamation directed at TdA. See Invocation of the Alien

Enemies Act Regarding the Invasion of the United States by

Tren de Aragua, 90 Fed. Reg. 13,033 (Mar. 20, 2025). The

proclamation found that TdA is conducting “irregular warfare”

against the United States by committing “brutal crimes,

including murders, kidnappings, extortions, and human, drug,

and weapons trafficking.” Id. at 13,033. The proclamation

further noted TdA’s designation as an FTO, as well as a 2024

statement by the International Criminal Police Organization

that TdA “has emerged as a significant threat to the United

States.” Id. The proclamation determined that the Venezuelan

government, acting through TdA, uses “illegal narcotics as a

weapon to ‘flood’ the United States.” Id. Based on these

findings, the President determined that TdA, “at the direction”

of Venezuela, is engaged in “an invasion or predatory incursion

against the territory of the United States.” Id. at 13,034. And

he therefore proclaimed that Venezuelan citizens who are

members of TdA, at least 14 years old, present in the United

States, and neither naturalized nor lawful permanent residents

are “liable to be apprehended, restrained, secured, and removed

as Alien Enemies.” Id. (citing AEA). Finally, the President

directed the Attorney General and the Secretary of Homeland

Security to apprehend, detain, and remove all such aliens. Id.

5

The proclamation was published one day after its issuance, on

Saturday, March 15.

The Executive Branch moved quickly and forcefully to

implement this proclamation. Before the President signed it,

the government began apprehending and interviewing

suspected TdA members. The government moved some of

them to the El Valle Detention Facility in Raymondville,

Texas, about 40 miles from our southern border. The

government also arranged to immediately remove more than

100 of these detainees from the United States and to transfer

physical custody over them to the government of El Salvador.

According to evidence credited by the district court, two flights

carrying these detainees took off from an airport near El Valle

around 5:25 P.M. and 5:45 P.M. on March 15. The flights

landed at a Honduran military base and remained there for

several hours. Then, the flights took off for El Salvador and

landed there shortly after midnight on Sunday, March 16.

Awaiting the flights were hundreds of Salvadoran security

forces, dressed in full combat gear. These forces removed the

detainees from the planes and placed them on buses, which

whisked them away to a Salvadoran prison known as the

Terrorism Confinement Center (CECOT). The President of El

Salvador oversaw this operation on his end.1

1

In a different AEA removal case, the Solicitor General

indicated that TdA members “have proven to be especially

dangerous to maintain in prolonged detention.” Suppl. Mem.

Regarding Emergency Appl. at 3, A.A.R.P. v. Trump, No. 24A1007

(U.S. May 12, 2025). Some of them “recently barricaded themselves

in a housing unit for several hours and threatened to take hostages

and harm ICE officers.” Id. And transferring them to other facilities

“creates ongoing risks of prison recruitment and expansion of” TdA

gang activities within the United States. Id. Given these facts, it is

unsurprising that the government moved expeditiously.

6

B

While the Executive Branch worked feverishly to

accomplish these AEA removals, lawyers for the suspected

TdA members worked feverishly to stop them. Shortly after

1:00 A.M. on March 15, they filed suit in the District Court for

the District of Columbia. The named plaintiffs were five

individuals detained in Texas at El Valle. The named

defendants included the President, the Secretary of State, the

Attorney General, the Secretary of Homeland Security, and the

Acting Director of Immigration and Customs Enforcement.

The complaint alleged that the AEA did not authorize the

proclamation, which also allegedly violated the Immigration

and Nationality Act, the Convention Against Torture, the Due

Process Clause, and the Suspension Clause. The complaint

invoked causes of action under the federal habeas corpus

statute, the Administrative Procedure Act, and principles of

nonstatutory review. It also sought class certification and a

TRO. The complaint took no issue with the President’s

description of TdA as a terrorist organization posing a

substantial threat to national security. However, the complaint

disputed that TdA was conducting a predatory incursion on

behalf of Venezuela, and it alleged that none of the named

plaintiffs were TdA members.

Over the course of the day, litigation proceeded on an

emergency basis. At 9:40 A.M., the district court entered an ex

parte TRO stating that the government “shall not remove any

of the individual Plaintiffs from the United States for 14 days.”

Minute Order (Mar. 15, 2025) (First Minute Order).2

Apparently, the government had already placed some of the

named plaintiffs on airplanes, but it returned them to the

2

Unless otherwise indicated, all docket citations are to J.G.G.

v. Trump, No. 25-cv-766.

7

detention facility after learning of the TRO. The government

continues to detain these five individuals within the United

States, so there is no allegation that it has violated this TRO.

Given the likelihood of imminent removal flights, the

district court scheduled a videoconference hearing for 5:00

P.M. to consider further interim relief. At that hearing, the

court dismissed the habeas claims without prejudice and

provisionally certified a class of aliens held by the United

States and subject to the proclamation. At about 6:45 P.M., the

court decided to issue a second TRO despite acknowledging

“hard” and “close” questions whether disputes under the AEA

are justiciable. Tr. of Mot. Hr’g 41, Dkt. No. 20 (Mar. 16,

2025) (“Tr.”).3 After the court announced that a second TRO

would be appropriate “to prevent the removal of the class for

14 days,” it promised to “issue a minute order memorializing

this so you don’t have to race to write it down.” Id. at 42. The

court then told government counsel:

[Y]ou shall inform your clients of this immediately,

and that any plane containing these folks that is going

to take off or is in the air needs to be returned to the

United States, but those people need to be returned to

the United States. However that’s accomplished,

whether turning around a plane or not embarking

anyone on the plane or those people covered by this

on the plane, I leave to you. But this is something that

you need to make sure is complied with immediately.

Id. at 43. At approximately 7:25 P.M., the court followed up

with a written minute order prohibiting the government “from

removing members of such class (not otherwise subject to

3

Although this hearing occurred on March 15, the transcript

was not available or docketed until March 16.

8

removal) pursuant to the Proclamation for 14 days or until

further Order of the Court.” Minute Order (Mar. 15, 2025)

(Second Minute Order). After this TRO was entered, no more

planes departed to carry out removals based on the

proclamation. The court later extended both TROs by 14 days.

The government appealed and sought a stay of the TROs.

This Court denied relief, but the Supreme Court vacated the

TROs. Trump v. J.G.G., 145 S. Ct. 1003 (2025) (per curiam).

It concluded that, because the plaintiffs had in substance raised

“core” habeas claims, “jurisdiction lies in only one district: the

district of confinement.” Id. at 1005–06 (quoting Rumsfeld v.

Padilla, 542 U.S. 426, 443 (2004)). For the named plaintiffs,

that was the Southern District of Texas. See id. at 1006.

Since the Supreme Court’s decision, alleged TdA

members have continued to seek relief. Individuals currently

detained in the United States have filed habeas actions in the

districts where they are confined, and courts have afforded

temporary relief to putative classes. See, e.g., A.A.R.P. v.

Trump, 145 S. Ct. 1364 (2025) (per curiam) (A.A.R.P. II).

Moreover, the plaintiffs in this case have filed an amended

complaint raising habeas and due-process claims on behalf of

the individuals who were removed and transferred to CECOT.

In considering that complaint, the district court held that habeas

jurisdiction would lie if the United States had “constructive

custody” over the detainees—in other words, if El Salvador

were holding the detainees “at the behest and ongoing

supervision” of the United States. Order at 2, Dkt. No. 116

(May 8, 2025) (quoting Abu Ali v. Ashcroft, 350 F. Supp. 2d

28, 30 (D.D.C. 2004)). After jurisdictional discovery revealed

no such constructive custody, the court nonetheless enjoined

the government to “facilitate” the ability of the CECOT

detainees to file habeas petitions. Mem. Op. at 64–67, Dkt. No.

9

148 (June 4, 2025) (Second Mem. Op.). The propriety of that

injunction is not presently before us.

C

In response to the March 15 removals, the district court has

begun criminal-contempt proceedings. On April 16, the court

issued an order finding probable cause that yet-unnamed

government officials committed criminal contempt by willfully

defying the court’s second minute order. The court concluded

that the Supreme Court’s vacatur of that order does not bar the

imposition of criminal sanctions. The court reasoned that an

injunction can support criminal contempt even if the court

lacked jurisdiction to enter it, because parties must obey even

void judicial orders unless and until they are reversed on

appeal. Mem. Op. at 17–20, Dkt. No. 81 (Apr. 16, 2025)

(Mem. Op.). Alternatively, the district court reasoned, it had

jurisdiction because the Supreme Court vacated the TRO only

for improper venue and no cause of action. Id. at 20–21. On

the merits, the court held that the TRO had unambiguously

prohibited the government from “relinquishing custody” over

the detainees “into the hands of a foreign government,” which

occurred several hours after the TRO was entered. Id. at 24.

The court offered to stand down if the defendants “choose to

purge their contempt” by “asserting custody” over the

individuals transferred to CECOT, “so that they might avail

themselves of their right to challenge their removability

through a habeas proceeding.” Id. at 43–44. Otherwise, the

court said that it “will proceed to identify” which government

officials, with knowledge of the TRO, “made the decision not

to halt the transfer of class members out of U.S. custody on

March 15 and 16, 2025.” Id. at 44; Order at 1, Dkt. No. 80

(Apr. 16, 2025). The court promised a criminal prosecution of

those individuals, either by the Executive Branch or, if

necessary, by a private attorney appointed by the district court.

10

Mem. Op. at 44 (“If the Government declines [to prosecute] or

the interest of justice requires, the Court will appoint another

attorney to prosecute the contempt.” (cleaned up)).

The government appealed the probable-cause order and

moved for an emergency stay or a writ of mandamus

terminating the criminal-contempt proceeding. The plaintiffs

moved to dismiss the appeal. This Court granted an

administrative stay pending consideration of these motions.

D

While these motions were pending, El Salvador released

the class members from CECOT and transferred them to

Venezuela as part of a prisoner exchange.

II

The show-cause order is not presently appealable. It is not

a final decision appealable under the literal terms of 28 U.S.C.

§ 1291, see Catlin v. United States, 324 U.S. 229, 233 (1945);

it is not an injunction immediately appealable under 28 U.S.C.

§ 1292(a)(1), see Carson v. Am. Brands, Inc., 450 U.S. 79, 83–

84 (1981); and it does not conclusively resolve any discrete

issue collateral to the merits of the case, so as to trigger the

collateral-order doctrine, see Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949). So, I focus on mandamus.

The All Writs Act authorizes federal courts to issue “all

writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.”

28 U.S.C. § 1651(a). These writs include mandamus, for

which “three conditions must be satisfied”: (1) the petitioner

must have a “clear and indisputable” right to relief, (2) the

petitioner must have “no other adequate means to attain the

relief he desires,” and (3) issuance of the writ must be

11

“appropriate” under the circumstances. Cheney v. U.S. Dist.

Ct. for D.C., 542 U.S. 367, 380–81 (2004) (cleaned up). The

first requirement “is substantially informed by our

consideration of the merits,” so mandamus cases often start

with that question. United States v. Fokker Servs. B.V., 818

F.3d 733, 740 (D.C. Cir. 2016); see In re Kellogg Brown &

Root, Inc., 756 F.3d 754, 757–60 (D.C. Cir. 2014).

The government presents three arguments in support of

mandamus. First, the show-cause order unconstitutionally

pressures the Executive Branch to engage in sensitive foreign-

policy negotiations. Second, a court cannot constitutionally

appoint a private attorney to prosecute members of the

Executive Branch. Third, the TRO was not clear enough to

support criminal contempt. Another objection, although not

presently advanced here, lurks in the background—that an

injunction entered without jurisdiction cannot support criminal

contempt. As explained below, the government has a clear and

indisputable right to relief because the TRO was insufficiently

clear to support criminal contempt. And the other points raise

difficult questions placing the Executive and Judicial Branches

into substantial conflict, which cinches up the case for granting

relief now rather than waiting for a final-judgment appeal.

III

On the merits, the probable-cause finding rests on an

asserted violation of the second TRO entered by the district

court on March 15. It reads: “The Government is ENJOINED

from removing members of [the] class (not otherwise subject

to removal) pursuant to the Proclamation for 14 days or until

further Order of the Court.” Second Minute Order. The docket

text did not explain what constituted “removing” class

members. As the district court later recounted, one possible

reading is that the TRO simply prohibited the government

12

“from transporting class members outside of U.S. territory”—

i.e., from physically expelling them from the country. Mem.

Op. at 23. On that interpretation, the government did not

violate the TRO, for it is undisputed that the removal flights at

issue—which departed south Texas around 5:25 P.M. and 5:45

P.M.—were well outside United States airspace when the

second TRO issued around 7:25 P.M (and, for that matter,

when the oral command issued around 6:45 P.M.). However,

the TRO also could be read to have prohibited the government

from “relinquishing custody” over the detainees “into the hands

of a foreign government.” Id. at 24. And the government

relinquished physical custody over the detainees to Salvadoran

authorities in the early morning of March 16—several hours

after the TRO had issued. Whether the government violated

the TRO thus turns on a question about what constituted

“removing” the suspected TdA members.

A strong interpretive presumption governs this analysis.

In the context of criminal contempt, ambiguity in the

underlying injunction must be resolved in favor of the alleged

contemnor. This Court has stressed that, for criminal contempt,

the injunction must be “clear and reasonably specific” in its

application to the conduct at issue. United States v. Young, 107

F.3d 903, 907 (D.C. Cir. 1997) (quoting United States v.

NYNEX Corp., 8 F.3d 52, 54 (D.C. Cir. 1993)); see United

States ex rel. Yelverton v. Fed. Ins. Co., 831 F.3d 585, 587

(D.C. Cir. 2016) (courts “resolve omissions or ambiguities in

the order in favor of the enjoined party” (quoting C. Wright &

A. Miller, 11A Federal Practice & Procedure § 2955 (3d ed.

2013) (cleaned up))). Other circuits agree: The “long-

standing, salutary rule in contempt cases is that ambiguities and

omissions in orders redound to the benefit of the person

charged with contempt.” Ford v. Kammerer, 450 F.2d 279,

280 (3d Cir. 1971) (per curiam). And it is “settled law that

contempt will not lie for violation of an order of the court

13

unless the order is clear and decisive and contains no doubt

about what it requires to be done.” United States v. Joyce, 498

F.2d 592, 596 (7th Cir. 1974). These principles track the rule

of lenity that applies in all criminal cases. See, e.g., United

States v. Santos, 553 U.S. 507, 514 (2008). Yet they are even

more important in the specific context of contempt, where a

single judge undertakes to set the governing rule, prosecute its

alleged violation, adjudicate liability, and then impose

punishment. For as the Supreme Court has warned, this “fusion

of legislative, executive, and judicial powers summons forth

the prospect of the most tyrannical licentiousness.” Int’l

Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821,

831 (1994) (cleaned up).

A

Plain language, legal context, and the Court’s first TRO all

support the government’s narrower reading of the second TRO

as keyed to physical expulsion from United States territory.

Start with the ordinary meaning of the term removing. Lay

dictionaries define “remove” to mean “[t]o make (a person)

leave a place; to compel (a person or a people) by law to move

to another place.” Remove, Oxford English Dictionary, sense

3.b (Mar. 2025), https://www.oed.com/dictionary/remove_v.

And for decades, legal dictionaries have defined “removal” to

mean “[t]he transfer or moving of a person or thing from one

location, position, or residence to another.” Removal, Black’s

Law Dictionary (12th ed. 2024); see Removal, Ballentine’s

Law Dictionary 1090 (3d ed. 1969) (“a moving of something”);

Remove, Bouvier’s Law Dictionary 2880 (3d ed. 1914) (“To

change place in any manner, to go from one place to another”).

These definitions clearly connote physical displacement from

one location to another—here, movement away from the

United States and to another country. They do not clearly

14

connote anything about custody. Nor do they connote any

specific action by the destination country, such as legal

admittance or assumption of custody.

Statutory context reinforces this understanding. This case

involves removals under the Alien Enemies Act, which applies

only in wartime or if a foreign nation has threatened a predatory

incursion “against the territory of the United States.” 50 U.S.C.

§ 21. In that context, the AEA gives the President an

emergency power to ensure that citizens of the offending

government are “apprehended, restrained, secured, and

removed.” Id. Moreover, the AEA repeatedly ties removal to

physical expulsion. It allows courts to order aliens subject to

an AEA proclamation “to be removed out of the territory of the

United States.” Id. § 23. And it requires marshals to “caus[e]

a removal of such alien[s] out of the territory of the United

States.” Id. § 24. A companion statute to the AEA likewise

tied removal to physical expulsion: The Alien Friends Act

allowed the President “to order to be removed out of the

territory” aliens he deemed dangerous to the public safety. Act

of June 25, 1798, ch. 58, 1 Stat. 570, 571; see also id. (President

may order aliens “to depart out of the territory of the United

States”). This statutory focus on physical expulsion makes

particular sense given the AEA’s purpose as a national-security

tool during times of hostility. As this Court explained long ago,

expulsion under the AEA involves the government’s ability “to

rid itself of enemies within its borders” during times of conflict,

“whether the individuals be actually hostile or merely

potentially so.” Citizens Protective League v. Clark, 155 F.2d

290, 294 (D.C. Cir. 1946). If the United States were at war

with a neighboring country, would its power to remove citizens

15

of that country really depend on that country’s agreeing to take

them back or to assume custody over them?

The Immigration and Nationality Act likewise supports an

understanding of removal to mean the physical expulsion of an

alien from the United States—regardless of any admission or

detention decision by the country on the receiving end. The

INA specifically provides that “any alien ordered deported or

removed … who has left the United States, shall be considered

to have been deported or removed in pursuance of law.” 8

U.S.C. § 1101(g). Applying section 1101(g), courts have held

that removal under the INA is accomplished when the alien has

“briefly departed the United States.” Nicusor-Remus v.

Sessions, 902 F.3d 895, 896 (9th Cir. 2018); see United States

v. Sanchez, 604 F.3d 356, 359 (7th Cir. 2010). These cases

reject the proposition that removal requires a “legal departure”

involving acceptance by the receiving country. See Nicusor-

Remus, 902 F.3d at 899 (“the statute makes no distinction

between physical and legal departures” (cleaned up)). To be

sure, the INA regulates the manner of removal, by restricting

the countries to which an alien may lawfully be removed. 8

U.S.C. § 1231(b). But the removal itself does not hinge on

admission or assumption of custody by the receiving country.

Sometimes, the removal can lawfully occur without either. See

Jama v. ICE, 543 U.S. 335, 337 (2005). Sometimes the

removal can occur without any government taking the alien

into custody at all. See, e.g., United States v. Ramirez-

Carcamo, 559 F.3d 384, 387–89 (5th Cir. 2009). And removal

in an unlawful manner—for instance, by taking an alien to the

wrong country—does not affect whether the removal itself was

executed. See Sanchez, 604 F.3d at 356–57. Indeed, an alien

would be removed from the United States (albeit not lawfully)

if the government effected the removal “by sailing her out to

16

the boundary of the territorial waters of the United States and

tossing her overboard.” Id. at 359.

The district court brushed aside this INA precedent based

on the government’s litigating position in a different case. In a

challenge to its authority to detain removable aliens outside the

United States, the government stated that “[t]o effectuate a

departure or removal, the alien must lawfully enter another

country.” Mem. in Opp’n to Mot. to Stay at 30, Escalona v.

Noem, No. 25-cv-604, Dkt. No. 14 (D.D.C. Mar. 10, 2025)

(Escalona Opp’n). The government cited the district-court

decision in Handa v. Crawford, 312 F. Supp. 2d 1367 (W.D.

Wash. 2004), aff’d sub nom. Handa v. Clark, 401 F.3d 1129

(9th Cir. 2005), which held that an alien had not “legally

departed” the United States when he was denied admission into

Canada at a border crossing, drove his car “around the

Canadian flag pole” at the border, and returned immediately to

the United States. Id. at 1373. But in Nicusor-Remus, the

Ninth Circuit expressly limited Handa to its facts. See 902

F.3d at 899–900. The Court held that Handa had recognized

only a de minimis “exception” to the general “rule” that a “brief

departure” from the United States qualifies as a removal. Id. at

899. In doing so, the Court stressed that the alien in Handa had

made a “physical entry into Canada for a few seconds” only,

when Canadian officials stopped him at the border and turned

him around. Id. (quoting Handa, 401 F.3d at 1133). In short,

the government’s account of removal in this case finds more

support in the caselaw than does its litigating position in

Escalona. And to the extent decisions like Handa may slightly

complicate the territorial focus of removal under the INA, that

17

only highlights that the term does not connote a transfer of

custody with any degree of clarity at all.4

Finally, consider the March 15 TROs together. Both were

entered to prevent removal of suspected TdA members—the

first one for the five named plaintiffs, the second for all other

members of the putative class. The first TRO provided that the

government “shall not remove any of the individual Plaintiffs

from the United States for 14 days.” First Minute Order. The

second TRO enjoined the government from “removing” class

members “pursuant to the Proclamation for 14 days.” Second

Minute Order. The first order was expressly territorial in focus.

The second order, referencing neither territory nor custody,

was less precise. But there is no reason to think that removing

under the second TRO meant something different from remove

under the first. And there is certainly no reason to think that

the protection afforded to absent class members under the

second TRO exceeded the protection afforded to named

plaintiffs under the first—i.e., that although the first TRO

protected named plaintiffs only until departure from United

States territory, the second TRO protected absent putative class

members up until the transfer of custody.

B

To construe the TRO, the district court looked primarily to

the oral hearing. In construing injunctions, courts may look to

4

The government’s litigating position in Escalona seems to

reflect a concern that, if a removal is complete upon physical

departure, the government might lack authority to continue detaining

aliens while they remain en route to their ultimate destination.

Escalona Opp’n at 27–29. But the government may take acts it

“deems necessary for carrying out [its] authority” under the INA, 8

U.S.C. § 1103(a)(3), which includes moving aliens to specific

countries selected under section 1231(b).

18

the “context” in which they were entered. See Young, 107 F.3d

at 907–08. Such context includes “the relief sought by the

moving party, the evidence produced at the hearing on the

injunction, and the mischief that the injunction seeks to

prevent.” Common Cause v. NRC, 674 F.2d 921, 927 (D.C.

Cir. 1982) (cleaned up). Nonetheless, caution is appropriate.

For one thing, we should not “dissect the sentences” spoken in

oral hearings as if they were statutes. See St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 515 (1992). Moreover, the

transcript of the March 15 hearing was not even available until

the next day—after the government had to decide whether to

proceed with an ongoing counter-terrorism operation on the

night of March 15, as it was unfolding internationally and in

real time. Finally, the district court reassured government

counsel that it would “memorializ[e]” its oral ruling in a written

injunction, “so you don’t have to race to write it down.” Tr. at

42. With these caveats, consider the context of the oral hearing.

Most notably, the district court highlighted its oral

command to the government:

[Y]ou shall inform your clients of this immediately,

and that any plane containing these folks that is going

to take off or is in the air needs to be returned to the

United States, but those people need to be returned to

the United States. However that’s accomplished,

whether turning around a plane or not embarking

anyone on the plane or those people covered by this

on the plane, I leave to you. But this is something that

you need to make sure is complied with immediately.

Tr. at 43. The court reasoned that “not embarking anyone on

the plane” actually meant not dis-embarking anyone—i.e., that

part of its oral command was “not to deplane” anyone on a

removal flight that had already landed somewhere abroad.

19

Mem. Op. at 30. That much makes sense, though this slight bit

of garbling does highlight the pitfalls of attempting to glean the

meaning of written legal text from transcripts purporting to

record exact turns of phrase in spoken English. Moreover, the

district court continued, the command either to “turn[] around

a plane” that was still in the air, or else “not to deplane” anyone

on a flight that had already landed, made clear that the

prohibition covered the “ultimate action” of transferring

“custody” over the detainees “into foreign hands.” Id.

The district court also drew a similar inference based on

the first TRO. By its written terms, that TRO merely stated that

the government “shall not remove” the five named plaintiffs

“from the United States.” First Minute Order. Yet in the oral

hearing, the court construed that TRO to require that the named

plaintiffs, if already bound for El Salvador, would have to be

“brought back once the planes land in El Salvador.” Tr. at 5.

In its show-cause order, the court reasoned that this statement

likewise made clear that a prohibition on removal included a

requirement not to relinquish custody. Mem. Op. at 26–27.

I read these exchanges differently. As the oral command

establishes by its terms, and the comment about the first TRO

confirms, the “ultimate action” that was orally required was to

“return[]” any detainees already outside the United States “to

the United States,” whether by turning planes around in mid-

air or by return flights with no deplaning in the interim. But

the written order excluded all of that—and for good reason.

Each of these options was problematic: First, any order to

bring suspected members of a foreign terrorist organization

into the United States would have faced an objection that the

judiciary cannot override the statutory prohibition on the

admission of such aliens. See 8 U.S.C. § 1182(a)(3)(B)(i)(V),

(vi)(I); Kiyemba v. Obama, 555 F.3d 1022, 1025–26 (D.C. Cir.

2009), vacated, 559 U.S. 131 (2010), reinstated on remand,

20

605 F.3d 1046 (D.C. Cir. 2010). Second, any freestanding

order to turn planes around mid-air would have been

indefensible, akin to the single-Justice order (set aside by the

full Supreme Court within hours) for the Executive Branch to

stop bombing Cambodia during the Vietnam War. See

Holtzman v. Schlesinger, 414 U.S. 1316 (1973). Third, any

freestanding order prohibiting the government from

relinquishing custody to El Salvador of individuals already

physically present in El Salvador would have faced an

objection that courts may not enjoin the Executive Branch

“from transferring individuals detained within another

sovereign’s territory to that sovereign’s government.” Munaf

v. Geren, 553 U.S. 674, 689 (2008); see also id. at 694 (“the

jurisdiction of the nation within its own territory is necessarily

exclusive and absolute” (quoting Schooner Exchange v.

McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) (Marshall,

C.J.))). To be sure, Munaf involved the transfer of an American

citizen for criminal prosecution, but there is no reason to think

that a different result would apply to the transfer of aliens for

preventive detention authorized by the laws of the receiving

sovereign. Indeed, in finding that the United States had no

constructive custody over detainees at CECOT, the district

court itself stressed that El Salvador had “chosen” to detain the

plaintiffs “for reasons far outside the ken of a federal district

court.” Second Mem. Op. at 24.

In its show-cause order, the district court itself disclaimed

two of these three commands referenced in its oral order. It

stressed that it had never imposed any freestanding requirement

to turn planes around. Mem. Op. at 36–37. And it repeatedly

denied having imposed any overarching requirement to return

suspected TdA members to the United States. See, e.g., id. at

37 (“The fair reading of the TRO is that it only prevented class

members’ transfer from American into foreign custody.”); id.

(“And if the Government indeed voluntarily delivered nine

21

passengers back to U.S. soil, the choice to hold them in the

United States as opposed to somewhere else was the

Government’s, not this Court’s.” (cleaned up)). Judge Pillard

suggests that the district court never backed away from its oral

commands. Post at 35–36. But at the TRO hearing, the court

expressly required that class members already expelled from

the United States “need to be returned to the United States.”

Tr. at 43. And that statement cannot be reconciled with its later

statement, in the show-cause order, that the TRO had “only”

prevented a “transfer from American into foreign custody.”

Mem. Op. at 37.5

What does all of this mean for construing the TROs? Put

aside the question whether an oral injunction can ever be

binding, despite some authority that it cannot. See, e.g., Hisps.

United of DuPage Cnty. v. Village of Addison, 248 F.3d 617,

620–21 (7th Cir. 2001) (Easterbrook, J.); Landmark Legal

Found. v. EPA, 272 F. Supp. 2d 70, 83 (D.D.C. 2003) (citing

Bates v. Johnson, 901 F.2d 1424, 1427 (7th Cir. 1990)). At a

minimum, when an injunction is supported by “both oral and

written statements on the same matter,” courts must focus on

the latter. Playmakers LLC v. ESPN, Inc., 376 F.3d 894, 896

(9th Cir. 2004). For one thing, Federal Rule of Civil Procedure

5

Judge Pillard flags documents showing that one Department

of Justice attorney advised client agencies in real time that the district

court had orally required that “anyone in the air should be returned

to the United States” and that detainees “on the ground in El

Salvador” should not be “disembarked.” Post at 12 n.1. These

documents have at best limited relevance to the ambiguity question,

which turns on an objective rather than a subjective standard. Young,

107 F.3d at 907. In any event, although the DOJ lawyer correctly

relayed the terms of the oral command, none of those terms appeared

in the final, written TRO. And, again, the ultimate command to

return detainees to the United States was precisely what the district

court later denied ever having imposed.

22

65(d) “contemplates the issuance of a written order” to ensure

“that the litigants receive explicit notice of precisely what

conduct is outlawed.” Lau v. Meddaugh, 229 F.3d 121, 123

(2d Cir. 2000). Moreover, from the time between statements

in an oral hearing and the actual issuance of a written

injunction, the district court might simply make adjustments.

See Playmakers, 376 F.3d at 896 (citing Ellison v. Shell Oil

Co., 882 F.2d 349, 352 (9th Cir. 1989)). By the time of its

show-cause order, the court here had changed its mind about

the oral command to bring back to the United States any

suspected TdA members who had already been physically

expelled. Likewise, it strongly disclaimed having imposed any

subsidiary obligation to turn planes around mid-flight. Given

all of this, the oral prohibition on “[dis]embarking” from

airplanes on the ground in El Salvador—which was never

reduced to writing, was subsidiary to the abandoned oral

command to return individuals to the United States, and was

related to the disclaimed statement about turning around

airplanes—does not count for much. Judge Pillard responds

that the oral commands were striking in their “clarity.” Post at

22. Perhaps so, but that makes all the more striking their

wholesale omission from the final written order, particularly

when the district court had promised to issue a written order

“memorializing” all of the operative commands. Tr. at 42.

The district court further referenced the “recurring

discussion about when and how the Court would lose equitable

jurisdiction,” which it described as the harm against which the

TRO was designed to protect. Mem. Op. at 27. The relevant

passages are equivocal. Two of them suggest that the court’s

underlying concern was transfer of physical custody to a

foreign sovereign. Tr. at 35 (“the argument in part is these

folks are going to be sent to Salvadoran or Honduran prisons”);

id. at 44 (“if planes have already landed and discharged their

occupants … I don’t have jurisdiction to require their return”).

23

But a third suggests that the underlying concern arose from the

aliens’ mere physical expulsion from the United States. Id. at

36 (“I mean, once they are out of the country, I’m not sure what

I can do there.”). Moreover, the authorities cited by the district

court much later, with the luxury of time to parse extant

caselaw and transcripts, do not reveal any easy answer to the

question of when the court would have become unable to afford

effective relief. See Mem. Op. at 28. One of the cited cases

suggests that the court could not have afforded relief even

before the transfer of physical custody to Salvadoran officials

in El Salvador. See Munaf, 553 U.S. at 692–700. But another

suggests that the court could have afforded relief even after

such a transfer. See Abu Ali, 350 F. Supp. 2d at 45–51. None

of this unambiguously resolves whether the prohibited

“removing” turned on a custodial or territorial standard.

One final contextual consideration involves the relief

sought by the plaintiffs, who asked the court to enter a two-

paragraph TRO. Paragraph 1 of the proposed TRO would have

ordered the government “not to remove” members of the

putative class under the AEA. [Proposed] Temporary

Restraining Order 1, Dkt. No. 3-9 (Mar. 15, 2025). Paragraph

2 would have further provided that, if there were class members

who had “already been removed from the United States”

pursuant to the AEA, then “such individuals shall be returned

to the United States.” Id. at 2. Yet despite having that proposed

order to consider over the course of the day, the district court

entered a minute order simply prohibiting “removing.” So at a

minimum, the contextual clues cut in both directions.

C

Taking a step back from the specific arguments pro and

con, consider the larger picture. The government’s arguments

for a territory-based interpretation of the TRO rest on written,

24

conventional, and publicly available sources for construing that

binding legal text—ordinary dictionary meanings, legal usage

in governing or related statutes, and the court’s own usage in a

related, earlier TRO. Judge Pillard objects that these sources

are “orthogonal” if not irrelevant to the question presented.

Post at 34. But this case involved challenges to the removal of

aliens through the AEA, drawing an objection that the removals

had to proceed through the INA. And the district court simply

barred “removing” the aliens. In construing that order, where

else would one begin other than by considering what removal

means in ordinary usage, under the AEA, and under the INA?

Text matters, as does its linguistic and legal context. In

contrast, the competing arguments for a custody-based

interpretation rest on generalized appeals to the purpose of the

TRO, as well as fine parsing of the court’s statements at an oral

hearing—the transcript for which was unavailable until after

the assertedly contemptuous acts had already occurred, and the

substance of which the district court never reduced to writing

and later disclaimed in significant part.

For purposes of criminal contempt, this more than suffices

to show that the TRO was ambiguous.

IV

Back to mandamus standards. As explained above, they

turn on whether the government’s right to relief is clear and

indisputable, whether it has no adequate alternative means for

obtaining relief, and whether granting the writ would be

appropriate under the circumstances. See Cheney, 542 U.S. at

380–81. The answer to all three questions is yes.

A

The first consideration parallels the merits. Instead of

determining whether the government’s legal position is correct,

25

we must determine whether it is “clear and indisputable.”

Cheney, 542 U.S. at 381 (quoting Kerr v. U.S. Dist. Ct. for the

N. Dist. of Cal., 426 U.S. 394, 403 (1976)). After a full-blown

assessment of the merits, this determination is often

straightforward enough. See Fokker Servs., 818 F.3d at 749–

50; Kellogg Brown & Root, 756 F.3d at 762.

For reasons explained above, the government’s position on

the merits is clear and indisputable. This is not to suggest that

its territory-based interpretation of the TRO is clearly and

indisputably correct; there is surely some force in the district

court’s broader, custody-based interpretation. But in the

criminal-contempt context, the merits question is not which

interpretation of the TRO is best. Instead, the question is what

the TRO covers after resolving any ambiguities “in favor of the

enjoined party.” Yelverton, 831 F.3d at 587 (quoting C. Wright

& A. Miller, supra, § 2955). And on the dispositive

interpretive question addressed above, the TRO seems to me

clearly ambiguous, which makes the imposition of criminal

contempt clearly inappropriate.

B

The show-cause order is interlocutory, and mandamus

must not become a “substitute for the regular appeal process.”

Cheney, 542 U.S. at 380–81. So in addressing mandamus at

this juncture, we must consider whether the government has

any adequate means for obtaining its requested relief at a later

stage of the case, including on appeal from a final judgment.

For criminal contempt, a final judgment would be one that

imposes “specific, unavoidable penalties” on identified

government officials. Salazar ex rel. Salazar v. D.C., 602 F.3d

431, 436 (D.C. Cir. 2010).

26

1

Interlocutory orders can warrant mandamus if they

“interfer[e] with a coequal branch’s ability to discharge its

constitutional responsibilities.” Cheney, 542 U.S. at 382; see

Nat’l Right to Work Legal Def. v. Richey, 510 F.2d 1239, 1243

(D.C. Cir. 1975) (“unnecessary and unseemly interference with

a coordinate branch of government”). In particular, courts have

granted mandamus to set aside interlocutory orders that

interfere with the conduct of foreign policy, Ex parte Peru, 318

U.S. 578, 586–89 (1943); create diplomatic friction, In re

Papandreou, 139 F.3d 247, 250–52 (D.C. Cir. 1998); or

impinge upon “[t]he Executive’s primacy in criminal charging

decisions,” Fokker Servs., 818 F.3d at 741. Immediate review

is particularly appropriate to stave off a looming “constitutional

confrontation” between the Executive and Judicial

Branches. United States v. Nixon, 418 U.S. 683, 692 (1974).

In Cheney, the Supreme Court applied these principles to

set aside a discovery order directed at the Vice President and

targeting the process through which he and other senior

Executive Branch officials provided advice to the President.

See 542 U.S. at 380–82. The Court acknowledged that the

government could have obtained judicial review by asserting

privilege at later stages of the ongoing discovery. See id. But

it held that mandamus was nonetheless appropriate because a

claim of executive privilege is an “extraordinary assertion of

power” that would needlessly place the Executive and

Judiciary “on a collision course.” Id. at 389–90 (citing Nixon,

418 U.S. at 692).

Ex parte Peru applied similar principles to stop an ongoing

in rem proceeding against a steamship owned by Peru. The

Secretary of State had undertaken to “settle claims against the

vessel by diplomatic negotiations,” 318 U.S. at 587, and had

27

further asserted sovereign immunity on behalf of Peru, id. at

581. Nonetheless, the district court denied Peru’s request to

dismiss the suit on immunity grounds. Id. Rather than wait for

proceedings to run their course on appeal, the Supreme Court

granted mandamus “without requiring [Peru] to apply to the

circuit court,” in order to avoid “embarrass[ing] the executive

arm of the government in conducting foreign relations.” Id. at

587–88.

The imposition or threat of contempt against Executive

Branch officials can further support mandamus. In Nixon v.

Sirica, 487 F.2d 700 (D.C. Cir. 1973) (en banc), this Court

invoked mandamus to review a grand-jury subpoena served on

the President. To obtain immediate review of a subpoena, most

parties must defy it and then appeal an ensuing contempt

citation. See id. at 707 n.21. But we afforded review through

mandamus because, “[i]n the case of the President, contempt

of a judicial order—even for the purpose of enabling a

constitutional test of the order—would be a course unseemly at

best.” Id.; see also Nixon, 418 U.S. at 692. Likewise, although

civil-contempt orders are not appealable, the Second Circuit

granted mandamus to set aside an order that held the Attorney

General in civil contempt. In re Attorney General, 596 F.2d

58, 64 (2d Cir. 1979) (“a contempt sanction imposed on the

Attorney General in his official capacity has greater public

importance, with separation of powers overtones, and warrants

more sensitive judicial scrutiny than such a sanction imposed

on an ordinary litigant”). And even absent contempt imposed

on a high-ranking official, the Seventh Circuit, after concluding

that the government had not filed any “objectively frivolous”

briefs in the case before it, granted mandamus to stop a court-

ordered, criminal-contempt investigation into which

supervisors in a United States Attorney’s Office had authorized

or reviewed the disputed filings. In re United States, 398 F.3d

615, 618–20 (7th Cir. 2005) (per curiam).

28

2

The show-cause order qualifies for mandamus under these

principles. The defendants in this action include the President

and three Cabinet secretaries. The underlying dispute arises

from the execution of a presidential order to vindicate

significant national-security and counter-terrorism interests.

Its execution involved coordinated activity among the United

States and at least two foreign sovereigns. The district court

has found probable cause that some of the involved officials—

likely including “those in closest operational proximity to the

President,” Cheney, 542 U.S. at 381—committed criminal

misconduct. And as explained below, the terms of the order

ensure multiple further constitutional conflicts between the

Executive and Judicial Branches.

The show-cause order gives the Executive Branch an

ultimatum: Either “assert custody” over aliens outside the

United States or face a court-ordered prosecution. Mem. Op.

at 43–44. Both pathways are constitutionally fraught.

First, the order uses the threat of criminal sanctions to

pressure the Executive Branch into asserting custody over

aliens who, in the district court’s view, were removed in

violation of the TRO. But as Judge Rao explains, post at 7–10,

the Supreme Court has vacated the TRO, so the district court

cannot seek to prospectively enforce it at all. Moreover, what

the court seeks to pressure—the assertion of custody over more

than 100 alleged alien enemies now outside the United States—

is also problematic. The Supreme Court repeatedly has

warned, often in cases involving immigration, that courts may

not intrude into foreign affairs or matters of national

security. See, e.g., Biden v. Texas, 597 U.S. 785, 805 (2022);

Arizona v. United States, 567 U.S. 387, 397 (2012); Harisiades

v. Shaughnessy, 342 U.S. 580, 588–89 (1952). To be sure,

29

courts also must seek to vindicate the due-process rights of

aliens to challenge AEA removals. See A.A.R.P. II, 145 S. Ct.

at 1368. But to assert “custody” over aliens outside the country

is to assert that the Executive Branch has “the power to

produce” them to a United States court. Munaf, 553 U.S. at

686. That would seem to involve effectuating rather than just

facilitating the return of suspected TdA members already

removed under the AEA, which may cross a constitutionally

significant line. See Noem v. Abrego Garcia, 145 S. Ct. 1017,

1018 (2025); see also Trump v. CASA, Inc., 145 S. Ct. 2540,

2561 (2025) (“the Judiciary does not have unbridled authority”

to enforce the Executive’s “duty to follow the law”). For the

question whether to bring into the United States individuals

deemed enemy aliens “is vitally and intricately interwoven

with contemporaneous policies in regard to the conduct of

foreign relations, the war power, and the maintenance of a

republican form of government. Such matters are so

exclusively entrusted to the political branches of government

as to be largely immune from judicial inquiry or interference.”

Harisiades, 342 U.S. at 589. Moreover, when El Salvador was

detaining the class members, asserting custody would have

required the United States to engage in diplomacy to effect a

transfer of at least constructive custody, which the courts may

not do. See, e.g., Chicago & S. Air Lines v. Waterman S. S.

Corp., 333 U.S. 103, 111 (1948); Edye v. Robertson, 112 U.S.

580, 598 (1884); Sanchez-Espinoza v. Reagan, 770 F.2d 202,

208 (D.C. Cir. 1985) (Scalia, J.). And now, the court’s order

would pressure some level of engagement with a regime in

Venezuela that the United States does not recognize.

Moreover, it is unclear whether the United States even could

obtain custody over the detainees, who may wish to remain free

in Venezuela rather than be detained in the United States

pending further AEA litigation or INA removals. Judge Pillard

seeks to dismiss these concerns because the “purge”

opportunity is just one “option” that the government need not

30

pursue. Post at 5. That just brings us to the question of what

the show-cause order portends absent any purge.

Absent a purge, the district court promised a court-directed

criminal prosecution. First, the court said it “will” conduct

discovery into which officials, with knowledge of the TRO,

decided to transfer custody of the detainees to El Salvador.

Mem. Op. at 44. Once those individuals have been identified,

the court said it then “will” oversee a criminal prosecution,

either by the Executive Branch or, if necessary, by a private

attorney appointed by the court. See id. (“If the Government

declines [prosecution] … the Court will appoint another

attorney to prosecute the contempt.” (cleaned up)). After the

detainees were transferred from El Salvador to Venezuela, the

court confirmed that it “will follow up” with contempt when

and if this Court lifts the administrative stay. ECF 169 at 3.

This promised prosecution has its share of difficulties.

For starters, discovery will likely be problematic. The

government has already asserted the state-secrets privilege to

protect certain operational details about the flights removing

alleged foreign terrorists pursuant to international agreements.

See United States v. Zubaydah, 595 U.S. 195, 212 (2022);

United States v. Reynolds, 345 U.S. 1, 10 (1953). Moreover,

to the extent the discovery touches upon communications to

formulate or give advice to the President, the presidential-

communications privilege might apply. See Cheney, 542 U.S.

at 381 (citing Nixon, 418 U.S. at 715). And an invocation of

that privilege would set the Executive and Judicial Branches

needlessly “on a collision course.” See id. at 389.

Further problems would arise once the court identified the

putative contemnors. Because courts are “not required to

exhibit a naiveté from which ordinary citizens are free,” Dep’t

of Com. v. New York, 588 U.S. 752, 785 (2019), one may safely

31

assume that the Executive Branch would decline to prosecute

itself in the circumstances of this case. Then the district court

“will” appoint a private attorney to prosecute the Executive

Branch, Mem. Op. at 44, which presents its own difficulties.

The Supreme Court has held that courts “possess inherent

authority to initiate contempt proceedings for disobedience to

their orders, authority which necessarily encompasses the

ability to appoint a private attorney to prosecute the contempt.”

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.

787, 793 (1987). But that holding is hard to reconcile with that

Court’s more recent insistence that “[t]he Executive Branch—

not the Judiciary—makes arrests and prosecutes offenses on

behalf of the United States.” United States v. Texas, 599 U.S.

670, 678–79 (2023); see also Donziger v. United States, 143 S.

Ct. 868, 868–70 (2023) (Gorsuch, J., dissenting from denial of

certiorari). In any event, Young itself acknowledged that the

prosecutor must be “disinterested,” and decisions regarding the

prosecution must therefore be “all made outside the supervision

of the court.” 481 U.S. at 807. But then who would supervise

such a prosecutor? If nobody did, the prosecutor would be an

unconstitutionally appointed principal officer. See United

States v. Arthrex, Inc., 594 U.S. 1, 18–19 (2021); United States

v. Donziger, 38 F.4th 290, 296 (2d Cir. 2022). And if court-

appointed prosecutors must be subject to supervision by the

Attorney General, as the Second Circuit held in Donziger, see

38 F.4th at 299–300, then the private-prosecutor route will be

as futile as it is provocative.

Finally, the district court has committed to punish the

Executive Branch for violating an order that it lacked

jurisdiction to enter. The Supreme Court vacated that order

because the claims raised by these plaintiffs, however styled,

fell “within the ‘core’ of the writ of habeas corpus.” J.G.G.,

145 S. Ct. at 1005; see Rooney v. Sec’y of Army, 405 F.3d 1029,

1031 (D.C. Cir. 2005); Monk v. Sec’y of Navy, 793 F.2d 364,

32

366 (D.C. Cir. 1986). Accordingly, the proper respondent to

sue was the detainees’ immediate custodian—i.e., the head of

the El Valle Detention Facility, not “some other remote

supervisory official” like a Cabinet secretary. See Padilla, 542

U.S. at 435. And the proper district in which to sue was the

Southern District of Texas, not the District of Columbia. See

id. at 443 (“for core habeas petitions challenging present

physical confinement, jurisdiction lies in only one district: the

district of confinement”). The Supreme Court has been unclear

whether these rules reflect considerations of personal

jurisdiction or venue. See id. at 451 (Kennedy, J, concurring).

Nonetheless, we have treated them as rules of personal

jurisdiction. See Stokes v. U.S. Parole Comm’n, 374 F.3d

1235, 1237–40 (D.C. Cir. 2004); Rooney, 405 F.3d at 1032.

The government did not press this objection as a ground for

mandamus. But the government did raise and prevail on this

jurisdictional argument in the underlying case, so it would

remain live in any contempt prosecution going forward.

The impact of jurisdictional defects in subsequent

criminal-contempt proceedings is unclear. Many cases hold

that a court may not impose criminal contempt for violation of

an order that it lacked jurisdiction to enter. The Supreme Court

explained: “When … a court of the United States undertakes,

by its process of contempt, to punish a man for refusing to

comply with an order which that court had no authority to

make, the order itself, being without jurisdiction, is void, and

the order punishing for the contempt is equally void.” Ex parte

Fisk, 113 U.S. 713, 718 (1885); see, e.g., Ex parte Burrus, 136

U.S. 586, 597 (1890); In re Sawyer, 124 U.S. 200, 221–22

(1888); Ex parte Ayers, 123 U.S. 443, 485 (1887); Ex parte

Rowland, 104 U.S. 604, 612–13 (1881). Two subsequent cases

arguably weakened this rule, though neither purported to

overrule these precedents. United States v. United Mine

Workers of Am., 330 U.S. 258, 289–95 (1947); United States v.

33

Shipp, 203 U.S. 563, 573–75 (1906). Accordingly, as late as

1991, several circuits still recognized the traditional rule. See,

e.g., In re Novak, 932 F.2d 1397, 1401 (11th Cir. 1991); In re

Establishment Inspection of Hern Iron Works, Inc., 881 F.2d

722, 726–27 (9th Cir. 1989). In rejecting this view, the district

court rested primarily on Willy v. Coastal Corporation, 503

U.S. 131 (1992), which held that courts may impose Rule 11

sanctions even in cases where they lack subject-matter

jurisdiction. See id. at 137–39; Mem. Op. at 19–20. But in

Willy, the Supreme Court reasoned that sanctions are collateral

to the merits, so judges may require “those practicing before

the courts to conduct themselves in compliance with the

applicable procedural rules” while a case remains pending. 503

U.S. at 139. This rationale has no obvious application to

injunctions restricting the primary conduct of parties outside of

court, as opposed to the secondary conduct of parties in

litigation. Indeed, the matter at issue in Willy—a monetary

sanction of counsel’s “careless pleading,” id. at 133—is

leagues apart from an injunction restricting the Executive

Branch from carrying out a significant, cross-border, national-

security operation.

In sum, the district court’s show-cause order would

provoke many grave conflicts between the Judicial Branch and

the Executive Branch at its highest levels. The courts should

not have to grapple unnecessarily with the difficult, contentious

issues summarized above when a straightforward and

dispositive ground of decision already is apparent. And the

Executive should not have to wait until the district court has

imposed criminal sanctions to raise that objection. In

circumstances much less fraught than this, courts have afforded

mandamus relief to resolve the dispute—and defuse the inter-

branch conflict—as quickly as possible. In such situations,

awaiting a final-judgment appeal is not an “adequate”

alternative remedy. See Cheney, 542 U.S. at 383–92.

34

C

For essentially the same reasons, mandamus is appropriate

under the circumstances. As explained above, this Court and

the Supreme Court repeatedly have afforded review through

mandamus when a lower court has encroached on foreign-

policy, prosecutorial, or other Executive Branch prerogatives.

See, e.g., Cheney, 542 U.S. at 383–92; Peru, 318 U.S. at 587–

88; Fokker Servs., 818 F.3d at 741; Nat’l Right to Work Legal

Def., 510 F.2d at 1243; Sirica, 487 F.2d at 707 n.21. The show-

cause order does precisely that: It uses the threat of criminal

prosecution to pressure the Executive Branch to assert custody

of suspected enemy aliens outside the country, with a view to

bringing them back into the country, or else to endure a court-

directed prosecution by a court-appointed attorney presumably

not subject to the Attorney General’s control.

Immediate review is plainly warranted.

V

The district court here was placed in an enormously

difficult position. Faced with an emergency situation, it had to

digest and rule upon novel and complex issues within a matter

of hours. In that context, the court quite understandably issued

a written order that contained some ambiguity. And it quite

understandably made oral remarks that it later walked back.

This proceeding does not concern the lawfulness of the

AEA removals made on March 15 and 16. Nor may we decide

whether the government’s aggressive implementation of the

presidential proclamation warrants praise or criticism as a

policy matter. Perhaps it should warrant more careful judicial

scrutiny in the future. Perhaps it already has. See A.A.R.P. II,

145 S. Ct. at 1367–68; A.A.R.P. v. Trump, 145 S. Ct. 1034

(Mem.) (2025). Regardless, the government’s initial

35

implementation of the proclamation clearly and indisputably

was not criminal.

Given this analysis, I concur in the order granting the

petition for mandamus and vacating the probable-cause order.

And because no prosecution could overcome the fatal

ambiguity explained above, I would also terminate the

criminal-contempt proceeding.

RAO, Circuit Judge, concurring: This case arises in the

midst of a high stakes clash between the Executive Branch and

a district court. In March, the President issued a proclamation

ordering the removal of members of the Venezuelan criminal

gang Tren de Aragua, a designated foreign terrorist

organization, pursuant to the Alien Enemies Act. The following

day, the government removed dozens of alleged gang members

from the United States and transferred them to the custody of

El Salvador. But while the removal was in process and after

two planes carrying the detainees had already left the United

States, the district court entered a temporary restraining order

(TRO) barring the detainees’ removal. The Supreme Court

subsequently vacated the TRO, holding the district court lacked

authority to issue it.

Despite the Supreme Court’s decision, the district court

sought to remedy what it perceived as the Executive’s

noncompliance with the vacated TRO. Relying on its criminal

contempt authority, the court issued an order finding probable

cause that government officials willfully violated the TRO by

not turning the planes around. The order offered the

government a choice: either (1) come into compliance with the

vacated TRO, such as by asserting custody over the individuals

detained in El Salvador, or (2) identify the officials responsible

for the removals so the district court could initiate prosecutions

for criminal contempt.

The district court’s order is a “clear abuse of discretion”

that warrants the “drastic and extraordinary remedy” of

mandamus. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367,

380 (2004) (cleaned up). When an injunction has been vacated,

as occurred here, a district court loses the authority to coerce

compliance with the order. See Dep’t of Homeland Sec. v.

D.V.D., No. 24A1153, 2025 WL 1832186, at *1 (U.S. July 3,

2025) (holding that a district court cannot use a remedial order

“to enforce an injunction that our stay rendered

unenforceable”). Punishment through criminal contempt might

2

still be available in these circumstances, but the district court

cannot use the threat of such punishment as a backdoor to

obtain compliance with a vacated and therefore unenforceable

TRO.

The district court’s abuse of the contempt power is

especially egregious because contempt proceedings against

senior Executive Branch officials carry profound “separation

of power[s] overtones” that demand the most “sensitive judicial

scrutiny.” In re Att’y Gen. of U.S., 596 F.2d 58, 64 (2d Cir.

1979). Lacking the authority to compel obedience, the district

court nonetheless pressured the government to take custody of

alleged alien enemies held in El Salvador. This intrusion on the

President’s foreign affairs authority “constitute[s] an

unwarranted impairment of another branch in the performance

of its constitutional duties.” Cheney, 542 U.S. at 390. Because

the order exceeds the court’s authority and amounts to a clear

abuse of discretion, mandamus is appropriate.

I.

The government seeks a writ of mandamus terminating

these contempt proceedings. Although mandamus is an

extraordinary remedy, the writ has long been used to prevent

“judicial usurpation of power, or a clear abuse of discretion,”

including actions that “would threaten the separation of powers

by embarrassing the executive arm of the Government.”

Cheney, 542 U.S. at 380–81 (cleaned up); see also Roche v.

Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943) (“The

traditional use of the writ in aid of appellate jurisdiction both

at common law and in the federal courts has been to confine an

inferior court to a lawful exercise of its prescribed

jurisdiction.”). This court has previously issued the writ to

protect against unlawful encroachments on executive power

and to prevent erroneous practices from taking hold in the

3

lower courts. See, e.g., Cobell v. Norton, 334 F.3d 1128, 1143

(D.C. Cir. 2003); In re Kellogg Brown & Root, Inc., 756 F.3d

754, 762–63 (D.C. Cir. 2014); In re Clinton, 973 F.3d 106, 118

(D.C. Cir. 2020).

To determine if mandamus is appropriate, a reviewing

court first must consider whether the district court exceeded its

legal authority or abused its discretion. If so, the court must

assess whether the error is of the type that justifies mandamus.

See In re Kellogg Brown & Root, 756 F.3d at 756–57; United

States v. Fokker Servs. B.V., 818 F.3d 733, 740, 747 (D.C. Cir.

2016).

II.

The government maintains that mandamus is an

appropriate remedy to the district court’s overreach. It argues

that the district court is attempting to “enforce a vacated order

by exploiting the threat of contempt,” and this approach puts

the Executive to an “extraordinary and coercive Hobson’s

choice.” Furthermore, the government contends that the district

court’s order “dangerously intrudes on core executive

prerogatives” in the conduct of foreign affairs.

Assessing the lawfulness of this unusual order requires

properly characterizing what the district court did. The district

court claimed it was undertaking a “compliance inquiry”

because the government’s disobedience of the TRO “is

punishable as contempt.” J.G.G. v. Trump, 25-cv-766, 2025

WL 1119481, at *1 (D.D.C. Apr. 16, 2025). After applying the

standards for criminal contempt and determining there was

“probable cause” to find a willful violation of a clear order, the

district court gave the government the option of either

complying with the vacated TRO (by asserting custody of the

individuals or other similar action) or facing criminal contempt

prosecutions. Id. at *20–21.

4

The purpose and effect of this preliminary order is to

compel the government to exercise its foreign affairs powers to

assert custody of the removed gang members. Id. at *20. The

district court acknowledged that it can no longer coerce this

action through civil contempt because its order was vacated by

the Supreme Court. See id. at *8 (invoking the collateral-bar

rule, which is available only in criminal contempt). Lacking the

power to coerce the government, the district court nonetheless

sought to achieve the same result with the threat of criminal

contempt. Dangling this sword of Damocles to compel the

Executive to exercise its foreign affairs powers exceeds the

court’s authority and is an abuse of discretion.

A.

The authority of the federal courts to punish for contempt

is an inherent attribute of the judicial power. See Potter v.

District of Columbia, 126 F.4th 720, 723 (D.C. Cir. 2025); see

also Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874)

(“The power to punish for contempts is inherent in all courts;

its existence is essential to the preservation of order in judicial

proceedings, and to the enforcement of the judgments, orders,

and writs of the courts, and consequently to the due

administration of justice.”). Contempt proceedings come in one

of two forms: civil or criminal. Bessette v. W. B. Conkey Co.,

194 U.S. 324, 328 (1904).

It is well established that the “proper classification”

between civil and criminal contempt is often essential to ensure

trial courts stay within constitutional and equitable limits. See

Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 444

(1911); Int’l Union, United Mine Workers of Am. v. Bagwell,

512 U.S. 821, 830–34 (1994). When reviewing whether the

contempt power has been properly exercised, we look to “the

substance of the proceeding and the character of the relief that

5

the proceeding will afford,” not the label attached by the parties

or the court below. Hicks v. Feiock, 485 U.S. 624, 631 (1988);

see also Shillitani v. United States, 384 U.S. 364, 369–70

(1966).

Several key features distinguish civil from criminal

contempt. Civil contempt is an equitable device used to secure

compliance with a court order and to preserve and enforce the

rights of the parties. See In re Nevitt, 117 F. 448, 458–59 (8th

Cir. 1902). Its sanctions are therefore coercive and remedial,

rather than punitive. See Shillitani, 384 U.S. at 368–70;

Gompers, 221 U.S. at 441–43. The “paradigmatic … civil

contempt sanction” is the conditional penalty that may be

“purge[d]” through compliance with the original order.

Bagwell, 512 U.S. at 828; see also Shillitani, 384 U.S. at 368

(explaining the civil contemnor “carr[ies] the keys of [his]

prison in [his] own pocket[]” and can avoid the penalty by

complying) (cleaned up). Because civil contempt proceedings

are aimed at securing the benefits of the court’s order to the

prevailing party, they take place between the original parties

and are part of the underlying case. See Gompers, 221 U.S. at

444–45.

By contrast, criminal contempt is an action at law to punish

the violation of a court order and “‘vindicate the authority of

the court’ following a transgression rather than to compel

future compliance or to aid the plaintiff.” Cobell, 334 F.3d at

1145 (quoting Bagwell, 512 U.S. at 828). Whereas a coercive

civil contempt sanction is conditional and may be purged

through compliance, a criminal contempt sanction is a fixed

and “unconditional sentence for punishment or deterrence.”

Shillitani, 384 U.S. at 370 n.5.

Although the line between them can sometimes be difficult

to draw, civil and criminal contempt are distinct. They serve

6

different purposes and are bounded by different procedural,

constitutional, and equitable limits. See Gompers, 221 U.S. at

441, 444–45. Recognizing these fundamental distinctions, the

Supreme Court has warned courts not to blur the line between

civil and criminal contempt when doing so would result in

“substantial prejudice” to the contemnor. United States v.

United Mine Workers of Am., 330 U.S. 258, 300–01 (1947); see

also Gompers, 221 U.S. at 443–52 (vacating criminal contempt

sanction imposed after civil contempt proceedings because

criminal procedures were not followed and because the

underlying dispute had been settled). For instance, a court may

not use civil contempt to impose an unconditional punishment,

thereby depriving the contemnor of the constitutional

protections required for criminal contempt. See, e.g., Gompers,

221 U.S. at 444; Hicks, 485 U.S. at 632.

Civil contempt also has important limits. As relevant here,

the coercive power of civil contempt is extinguished once the

underlying order is stayed or vacated. See United Mine

Workers, 330 U.S. at 295 (“The right to remedial relief falls

with an injunction which events prove was erroneously

issued.”); D.V.D., 2025 WL 1832186, at *1. Because the power

of civil contempt is coercive and remedial, it may be exercised

only so long as there is an underlying order for the court to

enforce. Simply put, a court cannot compel compliance with an

invalid order.

B.

The district court’s order is an improper use of the

contempt power. Unable to compel compliance with its vacated

order, the district court used the threat of criminal process to

coerce the government to “purge” its contempt. The

government correctly says it has been put to a Hobson’s choice:

comply with an invalid order or name Executive Branch

7

officials for the initiation of criminal contempt proceedings.1

The proffered choice impermissibly commingles civil and

criminal contempt in a manner that results in substantial

prejudice to the government. Compounding this error, the

district court’s order attempts to control the Executive Branch’s

conduct of foreign affairs, an area in which a court’s power is

at its lowest ebb.

When it became clear the government had transferred over

200 individuals into Salvadoran custody, the district court

ordered the government to show cause why it had not violated

the TRO. The proceedings that followed initially bore the

hallmarks of civil contempt. The show cause order was filed on

the same docket as the main cause and with the same case

caption. See Gompers, 221 U.S. at 444–46. Moreover, the court

solicited briefing from the plaintiffs and allowed them to

participate in a hearing on the issue. See id. at 444–45. All of

this suggests the district court was contemplating holding the

government in civil contempt to coerce compliance with the

TRO.

Before the district court ruled on contempt, however, the

Supreme Court intervened. The Court determined that

challenges to removal under the Alien Enemies Act fall within

the “core” of habeas corpus and therefore that “jurisdiction lies

in only one district: the district of confinement.” Trump v.

J.G.G., 145 S. Ct. 1003, 1005–06 (2025) (cleaned up). The

1

It is swinging at a strawman to say that this issue was never raised

or briefed. See Dissenting Op. 42. The government maintained that

it was being put to a Hobson’s choice between compliance and

ceding control of its foreign affairs power and that the district court

was trying to enforce its vacated TRO through the threat of criminal

contempt. The legal error identified here follows directly from

arguments raised and pressed by the government.

8

Court vacated the TRO because the detainees subject to the

proclamation were confined in Texas, making venue improper

in the District of Columbia. Id. at 1006.

This decision was fatal to the pending civil contempt

proceedings, as the district court, the parties, and the dissent all

seem to concede. Once the underlying order was vacated, the

district court lost the power to compel the Executive to come

into compliance with the TRO. See United Mine Workers, 330

U.S. at 294–95; Ayuda, Inc. v. Thornburgh, 948 F.2d 742, 760

(D.C. Cir. 1991) (holding that when “the district court had no

power to determine plaintiffs’ rights … there is no longer a

basis for holding the government in civil contempt”), vacated

on other grounds, Ayuda, Inc. v. Reno, 509 U.S. 916 (1993).

Barred from coercing compliance, the district court issued

a highly unusual order finding “probable cause” that

government officials had committed criminal contempt.

J.G.G., 2025 WL 1119481, at *1. The court invoked the

collateral-bar rule to justify continuing with criminal contempt

proceedings notwithstanding the Supreme Court’s vacatur.2 Id.

at *8. The court then explained that “before initiating any

criminal-contempt proceedings, courts typically allow the

contumacious party an opportunity to purge its contempt.” Id.

at *20.

2

Under the collateral-bar rule, criminal contempt may remain

available even after an order is vacated because “[v]iolations of an

order are punishable as criminal contempt even though the order is

set aside on appeal.” United Mine Workers, 330 U.S. at 294. Of

course, a district court must still consider whether criminal contempt

is appropriate under the circumstances, taking into account the

invalidity of the underlying order and serious separation of powers

concerns. See Donovan v. City of Dallas, 377 U.S. 408, 414 (1964).

9

It is true that while an order remains in place, the district

court may seek either to remedy non-compliance through civil

contempt or to punish non-compliance with criminal contempt.

Sometimes a court will first attempt civil contempt remedies

before criminal proceedings to afford a party one last chance to

comply before facing “more drastic criminal sanctions.” Yates

v. United States, 355 U.S. 66, 75 (1957). That approach is

appropriate where civil contempt remains available. But here

the TRO is invalid, and as everyone agrees, the district court

has no authority to compel compliance.

Nonetheless, the court offered a choice aimed at securing

compliance: The government could either “purge its contempt”

and “remedy its violation by voluntarily obeying” the TRO or

face criminal prosecutions. J.G.G., 2025 WL 1119481, at *20–

21. The district court used the threat of criminal contempt to

pressure the government to exercise its foreign affairs power

and assert custody over the removed individuals.

This approach exceeded the court’s authority and

constituted an abuse of discretion. What a court lacks the power

to do directly, it cannot accomplish indirectly. See Cummings

v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867) (“[W]hat cannot

be done directly cannot be done indirectly. The Constitution

deals with substance, not shadows.”); cf. Lonchar v. Thomas,

517 U.S. 314, 320 (1996) (“[I]f the district court lacks authority

to directly dispose of the petition on the merits, it would abuse

its discretion by attempting to achieve the same result

indirectly.”). The district court had no authority to demand

compliance with the vacated TRO through civil contempt, so it

had no authority to attain the same coercive result by

threatening criminal contempt proceedings. The power to hold

defendants in criminal contempt is the power only to punish for

past violations of a court order. Having lost its civil contempt

10

authority, the district court could not use the threat of a criminal

punishment to achieve compliance with the TRO.3

The Supreme Court recently clarified that a district court

may not use contempt to “‘coerce’ the Government into

‘compliance’” with an injunction stayed by the Supreme Court.

D.V.D., 2025 WL 1832186, at *1 (quoting United Mine

Workers, 330 U.S. at 303). The Court explained that a stay

divests the district court’s order of enforceability. Id. (citing

Nken v. Holder, 556 U.S. 418, 428 (2009)). As Justice Kagan

emphasized, “I do not see how a district court can compel

compliance with an order that this Court has stayed.” Id.

(Kagan, J., concurring). The Court’s reasoning applies with

even greater force in this context, where the district court’s

TRO was not just stayed but vacated by the Supreme Court.

The district court cannot coerce compliance with an invalid and

unenforceable TRO through the threat of contempt.

3

Judge Pillard’s primary rebuttal is that the district court was in fact

proceeding in criminal, not civil, contempt. See Dissenting Op. 42–

43. My argument, however, is not that these proceedings are civil,

but rather that the district court cannot use its criminal contempt

power to cajole and threaten the government into complying with the

vacated order. The fact that criminal contempt might be available in

these circumstances does not change the unlawfulness of the choice

put to the government.

Judge Pillard’s secondary rebuttal—that demanding the names

of Executive officials for a criminal proceeding is not coercive—

carries even less force. See id. at 44. The district court declared its

intent to identify the responsible officials through depositions and

hearings and, if necessary, appoint its own prosecutor to bring

charges. J.G.G., 2025 WL 1119481, at *21. Judge Pillard maintains

that this is just a “standard request for information,” but calling it

such does nothing to mitigate the coercion inherent in the district

court’s stated commitment to initiate a criminal investigation.

11

C.

Furthermore, the district court’s abuse of discretion is

compounded by the fact that the order intrudes on the

Executive’s foreign affairs power. The threat of criminal

contempt is directed at forcing the Executive to engage in

diplomacy to assert custody over individuals held by a foreign

sovereign.

The district court’s directive requires diplomacy because

its “most obvious” purge option—the government “asserting

custody” over the detainees—is an outcome the Executive

cannot achieve unilaterally. J.G.G., 2025 WL 1119481, at *20.

At the time of the court’s probable cause order, the individuals

were in the custody of El Salvador. Therefore, asserting

custody would require the Executive Branch to open

negotiations and then persuade a foreign sovereign to

relinquish control.4 While the court offered to “evaluate” any

“other methods of coming into compliance,” it reserved the

ultimate power to define what constitutes a successful

diplomatic outcome. Id.

The district court’s order intrudes upon the powers

committed to the Executive Branch. The Constitution entrusts

the conduct of the nation’s foreign affairs to the political

branches. The President’s foreign affairs responsibilities

include weighty matters such as “making treaties, appointing

ambassadors, recognizing foreign governments, meeting

foreign leaders, overseeing international diplomacy and

4

Since the district court’s probable cause order, the individuals in

question have been transferred from the custody of El Salvador to

Venezuela. See Gov’t Suppl. Br. 1. While this development changes

aspects of the underlying litigation, it does not alter the fact that the

probable cause order was an abuse of discretion.

12

intelligence gathering, and managing matters related to

terrorism, trade, and immigration.” Trump v. United States, 144

S. Ct. 2312, 2327 (2024). As we have held, “the

commencement of diplomatic negotiations with a foreign

power is completely in the discretion of the President …. The

Executive is not subject to judicial control or direction in such

matters.” U.S. ex rel. Keefe v. Dulles, 222 F.2d 390, 394 (D.C.

Cir. 1954); see also Zivotofsky ex rel. Zivotofsky v. Kerry, 576

U.S. 1, 13–16 (2015); United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 320 (1936) (recognizing the President is

the “sole organ of the federal government in the field of

international relations”).

Decisions concerning diplomacy and foreign policy are

“of a kind for which the Judiciary has neither aptitude,

facilities[,] nor responsibility and which has long been held to

belong in the domain of political power not subject to judicial

intrusion or inquiry.” Chicago & S. Air Lines, Inc. v. Waterman

S.S. Corp., 333 U.S. 103, 111 (1948); see also Concurring Op.

28–29 (Katsas, J.). These separation of powers principles are

only reinforced by the Supreme Court’s recognition in this

litigation that the statute under which the removals were made,

the Alien Enemies Act, “largely ‘precludes judicial review.’”

J.G.G., 145 S. Ct. at 1005 (quoting Ludecke v. Watkins, 335

U.S. 160, 163–64 (1948)). The judiciary should not “embarrass

the executive arm of the Government in conducting foreign

relations” by “assuming an antagonistic jurisdiction.” Ex parte

Peru, 318 U.S. 578, 588 (1943) (cleaned up).

By pressuring the Executive Branch to take diplomatic

action through the threat of criminal contempt, the district

court’s order impermissibly encroaches on the Executive’s

conduct of foreign affairs.

***

13

“[T]he very amplitude of the [contempt] power is a

warning to use it with discretion, and a command never to exert

it where it is not necessary or proper.” Gompers, 221 U.S. at

451. After the Supreme Court vacated the TRO, the district

court no longer had authority to coerce compliance with that

order. The attempt to do so with the threat of criminal contempt

was both unlawful and a clear abuse of discretion, particularly

because the coercion was directed at the Executive’s conduct

of foreign affairs.

III.

Having concluded the district court exceeded its legal

authority and abused its discretion, the next question is whether

this error justifies mandamus. See 28 U.S.C. § 1651

(authorizing courts to issue “appropriate” writs). Before issuing

a writ of mandamus, “three conditions must be satisfied: (i) the

petitioner must have ‘no other adequate means to attain the

relief he desires’; (ii) the petitioner must show that his right to

the writ is ‘clear and indisputable’; and (iii) the court ‘in the

exercise of its discretion, must be satisfied that the writ is

appropriate under the circumstances.’” Fokker Servs., 818 F.3d

at 747 (quoting Cheney, 542 U.S. at 380–81). All three

conditions are satisfied here.

A.

First, the government has no other adequate means to

challenge the district court’s unlawful order. Immediate appeal

is likely not available. See Concurring Op. 10 (Katsas, J.);

Dissenting Op. 17. And any post-judgment appeal would be an

inadequate form of relief because it is doubtful such review

could remedy the harm caused by the order.

The district court’s order places the government in an

untenable position between two choices. If the government

14

“comes into compliance” to avoid criminal contempt for its

officials, such compliance could foreclose future appellate

review of the district court’s coercive order. Cf. Fraunhofer-

Gesellschaft zur Förderung der angewandten Forschung E.V.

v. Sirius XM Radio Inc., 59 F.4th 1319, 1322–23 (D.C. Cir.

2023) (holding compliance with an order rendered an appeal

from that order moot). Moreover, post-judgment appellate

review could not undo the intrusion on the Executive Branch

caused by pressuring the government to assert custody of the

individuals (or to take some similar action). See Cobell, 334

F.3d at 1140 (finding no adequate alternative when the

government’s alleged harms included “interference with the

internal deliberations” of the government that could not “be

remedied by an appeal from the final judgment”) (cleaned up);

In re Sealed Case No. 98-3077, 151 F.3d 1059, 1065–66 (D.C.

Cir. 1998) (finding appellate review inadequate when the

government would suffer “irreparable harm” before the

appeal).

If, on the other hand, the government refuses to come into

compliance with the district court’s directives, any appeal from

subsequent criminal contempt proceedings could not correct

the unlawful and abusive choice the district court offered here.

The harm is in the choice itself. The order forces a coequal

branch to choose between capitulating to an unlawful judicial

order and subjecting its officials to a dubious prosecution.

Mandamus is the only mechanism available to provide relief

from this unlawful order. See Fokker Servs., 818 F.3d at 749;

Maryland v. Soper, 270 U.S. 9, 30 (1926) (“Except by the issue

of mandamus, [the government] is without an opportunity to

invoke the decision of this Court upon the issue it would

raise.”).

Because an appeal would come too late to undo the

constitutional injury of the court’s coercive choice, the

15

government has established that it has no other adequate means

to attain relief.

B.

Second, the government’s right to the writ is clear and

indisputable. As explained above, the district court exceeded

its legal authority and abused its discretion, an error

exacerbated by the intrusion into the Executive’s power to

conduct foreign affairs. See Cheney, 542 U.S. at 380.

This case is highly unusual, and I have found no other like

it, perhaps because no district court has threatened criminal

contempt against Executive Branch officials as a backdoor to

coercing compliance with an order that has been vacated by the

Supreme Court. Even so, “we have never required the existence

of a prior opinion addressing the precise factual

circumstances ... at issue in order to find clear error justifying

mandamus relief.”5 Fokker Servs., 818 F.3d at 749–50. In fact,

mandamus is often granted to correct judicial innovations. As

the Supreme Court has explained, appellate courts have the

power to review by mandamus “an issue of first impression” or

“to settle new and important problems.” Schlagenhauf v.

Holder, 379 U.S. 104, 111 (1964); see also Colonial Times,

Inc. v. Gasch, 509 F.2d 517, 525–26 (D.C. Cir. 1975) (using

mandamus to resolve an issue of first impression that was

5

The district court’s order is novel, but our analysis of it turns on

longstanding principles underlying the limits of the contempt power.

Judge Pillard maintains that an “open question[]” cannot justify

mandamus. Dissenting Op. 47. But she provides no response to the

Supreme Court and circuit precedents cited above, which squarely

hold that mandamus is appropriate to correct judicial innovations that

exceed the judicial power. In any event, this case does not present an

“open question” of law but rather a novel assertion of judicial power

that runs contrary to settled equitable and legal limits.

16

“important to the administration of discovery”); In re Att’y

Gen., 596 F.2d at 64 (using mandamus to answer “underlying

issues of first impression”).

“[W]hen a court has no judicial power to do what it

purports to do,” such “usurpation of power” must be corrected

by a higher court. De Beers Consol. Mines, Ltd. v. United

States, 325 U.S. 212, 217 (1945). The district court’s order

exceeds the contempt power and intrudes on the powers of the

Executive Branch—that error is clear and of the type that

warrants mandamus.

C.

Finally, the writ is appropriate in these circumstances.

“Accepted mandamus standards are broad enough to allow a

court of appeals to prevent a lower court from interfering with

a coequal branch’s ability to discharge its constitutional

responsibilities.” Cheney, 542 U.S. at 382. The district court

sought to coerce a result it has no authority to compel, and the

coercion intrudes on the Executive’s foreign affairs powers. Cf.

Biden v. Texas, 142 S. Ct. 2528, 2543 (2022) (explaining courts

should “take[] care to avoid ‘the danger of unwarranted judicial

interference in the conduct of foreign policy’”) (quoting Kiobel

v. Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013)). Such

judicial interference is especially unwarranted when, as here, it

is undertaken to enforce an order the Supreme Court has

already declared invalid. When a lower court infringes on an

“action of the political arm of the Government taken within its

appropriate sphere,” the overreach must “be promptly

recognized” and corrected to prevent “the delay and

inconvenience of a prolonged litigation.” Ex parte Peru, 318

U.S. at 587.

This court often grants mandamus to correct unlawful

encroachments on executive power, even when proceedings in

17

the district court have not fully run their course. For example,

in In re Cheney, we granted mandamus in the early stages of

litigation to bar the deposition of the Vice President’s Chief of

Staff because it “would constitute an unwarranted impairment

of the functioning” of the Office of the Vice President. 544 F.3d

311, 314 (D.C. Cir. 2008) (cleaned up). Likewise, in In re

Sealed Case No. 98-3077, we granted mandamus to vacate an

order requiring the independent counsel to produce documents,

submit to depositions, and respond to subpoenas for live

testimony, because these requirements would cause

“irreparable harm” to a pending grand jury investigation and

would “divert petitioner’s focus” away from that investigation

“at a crucial juncture.” 151 F.3d at 1065–66. And in Cobell v.

Norton, we granted mandamus when the appointment of a court

monitor “intrude[d] into the internal affairs of the Department

[of the Interior].” 334 F.3d at 1143; see also Fokker Servs., 818

F.3d at 750 (finding mandamus appropriate when the district

court’s ruling would “have enormous practical consequences

for the government’s ability to negotiate future settlements”)

(cleaned up); In re Clinton, 973 F.3d at 117–21 (finding

mandamus appropriate to vacate an intrusive discovery order

directed at the former Secretary of State). Consistent with these

many examples, we issue the writ of mandamus here to correct

the district court’s “unwarranted impairment of another branch

in the performance of its constitutional duties.” Cheney, 542

U.S. at 390.

Moreover, mandamus is appropriate to “forestall future

error in trial courts.” Colonial Times, 509 F.2d at 524. The

court’s contempt authority is uniquely “liable to abuse.” Ex

parte Terry, 128 U.S. 289, 313 (1888); see also Bloom v.

Illinois, 391 U.S. 194, 202 (1968). Accordingly, as a court of

review, we must ensure the power is not wielded to reach

“arbitrary or oppressive conclusions.” Cooke v. United States,

267 U.S. 517, 539 (1925). Mandamus is appropriate here to

18

forestall courts from using criminal contempt to indirectly

coerce enforcement of an unenforceable order.

Lastly, a word about the appropriateness of the specific

mandamus remedy we grant today. In issuing the writ, we

vacate the district court’s probable cause order, but we do not

grant the government’s request to terminate the criminal

contempt proceedings. We have before us only the district

court’s preliminary order on probable cause, an order that seeks

to use the threat of criminal contempt to coerce compliance

with a TRO vacated by the Supreme Court. Because the

immediate harm is the unlawful choice the district court

imposed, vacating the order is the appropriate and necessary

remedy.

“Although the remedy by mandamus is at law, its

allowance is controlled by equitable principles.” United States

ex rel. Greathouse v. Dern, 289 U.S. 352, 359 (1933). Those

principles demand that the remedy be tailored to the specific

harm before us. Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018).

A court’s relief “should be no more burdensome to the

defendant than necessary to provide complete relief to the

plaintiffs.” Trump v. CASA, Inc., 145 S. Ct. 2540, 2557 (2025)

(cleaned up); see also id. at 2563 (Thomas, J., concurring) (“In

no circumstance can a court award relief beyond that necessary

to redress the plaintiffs’ injuries.”). Here, the harm was putting

the government to an unlawful choice, and the relief must be

limited to that harm.6

6

Vacating only the purge option would not cure the district court’s

error. Cf. Dissenting Op. 7–8. Because the district court’s two

choices are linked, eliminating the purge option would immediately

require the government to identify executive officials for

19

With the probable cause order vacated, the district court

will have to squarely face the difficult questions that would

arise from initiating criminal contempt against senior

Executive Branch officials. In this and related proceedings, the

district court’s primary focus has been securing the

government’s compliance and bringing the removed

individuals back into the government’s custody. Cf. J.G.G. v.

Trump, 25-cv-766, 2025 WL 1577811, at *14 (D.D.C. June 4,

2025) (allowing plaintiffs to bring new due process claims

notwithstanding the Supreme Court’s determination that such

challenges could be brought only in habeas and that the District

of Columbia was an improper venue). A pivot now to a purely

punitive proceeding would be a momentous decision.

Although executive officials are not above the law and are

not “immune from punishment for contempt,” they are very

rarely held in either civil or criminal contempt. Land v. Dollar,

190 F.2d 623, 638–40 (D.C. Cir. 1951) (per curiam), vacated

as moot, Sawyer v. Dollar, 344 U.S. 806 (1952). Indeed, I am

not aware of any case in which punishment for contempt

against a senior executive official was upheld on appeal. See,

e.g., In re Att’y Gen., 596 F.2d at 68 (vacating a contempt

finding against the Attorney General); Sawyer, 344 U.S. at 806

(vacating and dismissing as moot a contempt finding against

prosecution. But the district court imposed this directive only if the

government did not accept the purge option. In light of the serious

constitutional and other concerns identified here and by Judge Katsas

in his concurrence, vacating the order in full allows the district court

to consider how to move ahead, if at all, without the purge option.

Cf. Donovan, 377 U.S. at 414 (“Whether the Texas court would have

punished petitioners for contempt had it known that the restraining

order … was invalid, we do not know. However, since that question

was neither considered nor decided by the Texas court, we leave it

for consideration by that court on remand.”).

20

the Secretary of Commerce). Holding Executive Branch

officials in contempt demands “more sensitive judicial scrutiny

than such a sanction imposed on an ordinary litigant” because

these officials are representatives of “another branch of

government coequal to the judicial branch in constitutional

function and design.” In re Att’y Gen., 596 F.2d at 64–65.

Another concern is whether the district court may appoint

an independent prosecutor if the Department of Justice

declines—as one may reasonably expect—to prosecute for

criminal contempt in these circumstances. See Concurring Op.

30–31 (Katsas, J.); Dissenting Op. 24 (arguing that such

separation of powers claims are presently unripe but

acknowledging that they may be raised by the government if

an independent prosecutor is appointed in the future). I have

found no precedent for a court independently prosecuting an

Executive Branch official for criminal contempt, much less any

instance of a district court seeking criminal punishment against

an Executive Branch official for violating an order that the

Supreme Court has vacated.

Whether to proceed with criminal contempt is a choice left

to the district court, which “enjoys a discretion akin to the non-

prosecution power in the executive.” Potter, 126 F.4th at 725.

With the issuance of this writ of mandamus, I would not

assume that such an extraordinary step is forthcoming. See

D.V.D., 2025 WL 1832186, at *1 (assuming the district court

will comply with the Supreme Court’s decision and “cease

enforc[ement]” of the stayed injunction). In any event, today

we correct the particular error before us. If the district court

chooses the problematic and uncertain path of criminal

contempt, the government may seek relief from this court to

remedy any specific harms arising from the district court’s

actions.

21

***

The district court used the threat of criminal contempt to

coerce the Executive Branch to comply with an order it had no

authority to enforce. And it directed that coercion toward the

Executive’s exercise of its foreign affairs power. The

significance of the district court’s error, coupled with the

potential for abuse in future cases, justifies our intervention at

this stage of the proceedings. Considering the “totality of the

circumstances,” the writ is appropriate. In re Kellogg Brown &

Root, 756 F.3d at 762.

For the foregoing reasons, I concur in the decision to grant

the government’s petition for a writ of mandamus and to vacate

the district court’s order.

PILLARD, Circuit Judge, dissenting: The rule of law

depends on obedience to judicial orders. Yet, shortly after the

district court granted plaintiffs’ emergency motion for a

temporary restraining order, defendants appear to have

disobeyed it. Our system of courts cannot long endure if

disappointed litigants defy court orders with impunity rather

than legally challenge them. That is why willful disobedience

of a court order is punishable as criminal contempt.

When it appears that a judicial order has been disobeyed,

the court’s ability to learn who was responsible is the first step

to accountability. In defense of the integrity of our courts, the

district judge promptly issued an opinion describing in detail

the facts giving rise to probable cause to believe that contempt

of court had occurred. The accompanying order required only

that defendants identify the people responsible for the

apparently contumacious conduct.

Defendants assert no claim of privilege to withhold the

identities of the decisionmakers aware of the TRO who decided

not to halt the flights carrying detainees to prison in El

Salvador. They affirm that executive branch officials can be

subject to sanction for criminal contempt. Reply in Supp. of

Stay 5-6. And they squarely deny any suggestion “that [the

executive branch] would never prosecute an official for

criminal contempt.” Id.

Yet my colleagues, each for a distinct and non-overlapping

reason, vote to grant a writ of mandamus to vacate the district

court’s Order. Judge Katsas would go further and “terminate

the criminal-contempt proceeding.” Katsas Op. 35.

They intervene in error. We all agree we lack appellate

jurisdiction. It should be even more apparent that defendants

have no clear and indisputable right to the extraordinary writ of

mandamus. Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542

U.S. 367, 381 (2004). The right to relief is only “clear and

2

indisputable” when a petitioner “can point to cases in which a

federal court has held that relief is warranted in a matter

involving like issues and comparable circumstances.” In re Al

Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (citation and

internal quotation marks omitted). Neither defendants nor my

colleagues cite to any such cases. Moreover, I am unaware of

any prior case in which a court has asserted the clarity on which

mandamus relief depends without a majority agreeing as to

what is so clear. Because the district court’s order is not

remotely one from which defendants have an indisputable right

to relief, I would deny mandamus and dismiss the appeal.

The district court’s April 16, 2025, Order is decidedly not

a “criminal contempt order” that “unconstitutionally

commandeers” the Executive’s prosecutorial powers. Mot. for

Stay 1. Nobody contends the Order imposed punishment.

Nobody says it even made a referral to the Department of

Justice for prosecution. The Department accordingly has had

no occasion to decide whether to prosecute, nor has the district

court had reason to appoint a prosecutor to pursue contempt

charges the Department declines. And defendants’ right to

appeal any conviction—or perhaps a future order of private

prosecution—provides “other adequate means to attain the

relief” from the unconstitutional infringement of executive

prerogative that they forecast, which alone should defeat

mandamus. Cheney, 542 U.S. at 380.

The court’s Order did only two things. First, it set an April

23, 2025, deadline for defendants to file a declaration

identifying “who, with knowledge of the Court’s classwide

Temporary Restraining Order, made the decision not to halt the

transfer of class members out of U.S. custody on March 15 and

16, 2025.” Order, J.G.G. v. Trump, No. 25-cv-766 (JEB), Dkt.

No. 80 (D.D.C. Apr. 16, 2025) [hereinafter April 16 Order].

The court correctly explained why it retains jurisdiction to

3

consider the potential criminal contempt even after the

Supreme Court held that venue of the plaintiffs’ individual

habeas claims is not in D.C. where defendants are, but in Texas

or wherever plaintiffs are confined. J.G.G. v. Trump, No. 25-

cv-766 (JEB), 2025 WL 1119481, at *9-10 (D.D.C. Apr. 16,

2025) (citing Trump v. J.G.G., 145 S. Ct. 1003, 1005 (2025)

(per curiam)). Nobody contends that the identity of the

potential contemnors is irrelevant to the potential criminal

contempt, and no immunity or privilege is asserted. Requiring

a party to produce nonprivileged information of central

relevance to a pending dispute is an entirely routine judicial

function.

If the district court had stopped there, Judge Rao provides

no reason to grant mandamus.

But the court’s Order gave defendants another option:

Instead of identifying the potential contemnors, defendants

could commit to rectifying the harm their apparent defiance of

the TRO inflicted on the plaintiffs. The constitutional

dimension of the harm to the plaintiff class members is beyond

dispute. Shortly after defendants rushed to transfer plaintiffs

to a Salvadoran prison in the face of TROs (that we declined to

stay in order to prevent further such removals), the Supreme

Court ruled unanimously that the Constitution guaranteed

plaintiffs’ pre-removal due process rights to dispute their

alleged role in Tren de Aragua. As the district court observed,

“[i]n holding as much, the [Supreme] Court effectively said

that the Constitution flatly prohibits the Government from

doing exactly what it did that Saturday, when it secretly loaded

people onto planes, kept many of them in the dark about their

destination, and raced to spirit them away before they could

invoke their due-process rights.” Id. at *7.

4

Punishment for contempt would vindicate the authority of

the court. But the court also recognized the plaintiffs’ ongoing

peril. So, it gave defendants the option to make an alternative

April 23 filing—one that would “explain[] the steps they have

taken and will take” to remedy the effect on the plaintiffs of

their potentially contemptuous actions. April 16 Order; see

J.G.G., 2025 WL 1119481, at *20. Defendants would “not

need to release any of those individuals, nor would [they] need

to transport them back to the homeland,” but only make some

arrangement for plaintiffs to “avail themselves of their right to

challenge their removability through a habeas proceeding.”

2025 WL 1119481, at *20. The court was flexible about the

details, “giv[ing] Defendants an opportunity to propose other

methods of coming into compliance,” which it would

“evaluate.” Id.

The choice was up to defendants: They could voluntarily

provide a habeas process for plaintiffs to dispute and a court

determine whether they are in fact members of Tren de Aragua,

as defendants assert. Or defendants could leave that task for

another day and proceed to identify the people responsible for

the actions the court deemed potentially contemptuous. They

chose neither, instead appealing the Order and moving to stay

it pending resolution of the appeal or, in the alternative, for a

writ of mandamus to vacate the Order.

We lack appellate jurisdiction, so we dismiss the appeal.

But the majority grants mandamus and vacates the probable-

cause Order.

Again, defendants do not assert that the court lacks power

to order them to identify the potential contemnors. And they

explicitly disclaim “any power to defy judicial orders.” Reply

in Supp. of Stay 6. They instead argue that they complied with

the TRO.

5

Judge Katsas apparently views defendants’ claim of

compliance as at least objectively plausible. He deems the

TRO unable to support a contempt prosecution because he

believes the TRO was so ambiguous that defendants could have

reasonably believed they obeyed it. As he sees it, the TRO

failed to make clear whether the court (a) was exercising the

full extent of its undisputed jurisdiction to enjoin defendants

from delivering the plaintiffs on board U.S.-controlled planes

into the hands of the Salvadoran government for indefinite

imprisonment or, alternatively, (b) opting to limit itself to

enjoining that conduct only insofar as the planes containing the

plaintiffs remained within U.S. airspace by the time the judge

imposed the TRO. But that theory fails to support mandamus

relief for at least two reasons.

First, if such ambiguity were present, it could be fully

litigated as an ordinary defense to a contempt prosecution and

on appeal from conviction, which makes it ineligible for

mandamus. I am unaware of any case—and none is cited—

holding that ambiguity in the disobeyed court order is grounds

for a writ of mandamus to abort a contempt inquiry even before

any charging decision has been made. Judge Katsas views

mandamus as nonetheless necessary because the Order “gives

the Executive Branch an ultimatum” that is “constitutionally

fraught.” Katsas Op. 28. He worries that the order is

“problematic” because it “seeks to pressure” “the conduct of

foreign relations,” id. at 28-29, or might require discovery that

could run afoul of state-secrets or presidential communications

privileges, id. at 30. But any diplomatic efforts would be at the

option and under the command of the Executive, cf. Noem v.

Abrego Garcia, 145 S. Ct. 1017, 1018 (2025) (holding that the

district court properly required the Executive to “facilitate” a

U.S. resident’s “release from custody in El Salvador” and

questioning the court’s authority only insofar as it directed the

Executive to “effectuate” such release), and no informational

6

privilege was asserted in support of mandamus. Neither those

nor any of the other problems Judge Katsas anticipates, Katsas

Op. 30-33—including some defendants admittedly “did not

press . . . as a ground for mandamus,” id. at 32—provides a

clear and indisputable entitlement that could support

mandamus.

Second, there is no ambiguity in the TRO. “[A]n alleged

contemnor may not avoid” contempt proceedings “by ‘twisted

interpretations’ or ‘tortured constructions’ of the provisions of

the order.” In re Holloway, 995 F.2d 1080, 1084 (D.C. Cir.

1993) (quoting United States v. Greyhound Corp., 508 F.2d

529, 532 (7th Cir. 1974)). On the current record, it is not

plausible that defendants, aware of the TRO, might have

reasonably thought they were complying so long as their planes

had exited the territorial United States before the minute order

appeared on the docket. The putative ambiguity defendants

assert and Judge Katsas carefully elaborates depends on taking

the term “removing” out of the context of the words and events

in this case and substituting as “context” entirely different

circumstances, where statutory references or concepts of

“removal” have been used in ways that even defendants

themselves do not seriously contend apply here.

Judge Rao takes a different tack. She sees the Order’s

“purpose and effect” as compelling the executive branch “to

assert custody of the removed gang members” or to take similar

action, which she concludes means the order improperly

“commingles civil and criminal contempt.” Rao Op. 4, 7. I see

at least three fatal defects in that position.

First, defendants make no version of that argument, and

indeed expressly disclaim it. See Reply in Supp. of Stay 5 n.1

(arguing that it is “wrong” to “suggest that contempt

proceedings in this case [are] properly . . . characterized as

7

civil, not criminal”). Judge Rao’s departure from the party-

presentation principle alone should foreclose mandamus relief,

which depends on the petitioners, not the court, carrying the

burden to demonstrate a clear and indisputable right to such

relief. Cf. Cheney, 542 U.S. at 371, 380.

Second, even if such a departure were justifiable, I am

unaware of any authority, and Judge Rao cites none, providing

a clear entitlement to intrude on and limit a criminal contempt

inquiry because the court provides an option for the potential

contemnors to take voluntary, lawful action to avoid the

inquiry. If we accept that the district court has jurisdiction to

consider criminal contempt as a standalone matter, which

Judge Rao does not appear to question, the inclusion of a

“purge” option that defendants are entirely free to pretermit

makes the order, if anything, less onerous. Judge Rao sees no

such free choice, given what she says is the “coercive,”

“threatening,” “sword of Damocles”-like consequence to the

defendants should they decide against the purge option. But

the “threat” that would await them is none other than a

completely ordinary requirement to produce information of

central relevance to the pending criminal contempt inquiry.

That requirement is not rendered somehow impermissibly

coercive by the undoubted distastefulness of defendants’ duty

to respond in court to substantial claims of misconduct. That

is an onus our justice system regularly places even on persons

ultimately deemed to have committed no wrong.

Third, if there were merit to the defect Judge Rao sees, it

would be fully and most narrowly remedied by eliminating the

“purge” option; her theory provides no support for her

preferred remedy of vacating the entire Order. But, again,

defendants have no clear and indisputable entitlement to

eliminate the “purge” option, nor have they sought that relief.

8

They have not shown a clear right to narrow the Order, let alone

vacate it.

Because defendants can seek relief through the ordinary

appeals process and have no clear and indisputable right to

vacatur of the probable-cause Order—a point my colleagues’

differences highlight—I would deny the petition for the writ of

mandamus.

I.

A.

The district court’s Memorandum Opinion describes the

facts supporting its April 16 probable-cause determination. See

J.G.G., 2025 WL 1119481, at *1-5. I recount the most salient

aspects here.

In the early hours of Saturday, March 15, 2025, executive

branch officials reportedly “loaded scores of Venezuelans,”

including some of the five named plaintiffs in this case, “onto

buses, drove them to a nearby airport, and began putting them

onto . . . planes.” Id. at *2. The detainees were unaware that,

the day before, “the President had seemingly signed—but not

yet made public—a Proclamation invoking the Alien Enemies

Act” (AEA) of 1798 against members of Tren de Aragua

(TdA), a Venezuelan criminal gang, and prepared to summarily

deport them in reliance on the Proclamation. Id. The AEA

grants extraordinary authority to the President to restrain and

remove “natives, citizens, denizens, or subjects” of a hostile

nation or government that is in a “declared war” with the

“United States” or when “any invasion or predatory incursion

is perpetrated, attempted, or threatened against the territory of

the United States by [the] foreign nation or government.” 50

U.S.C. § 21.

9

Plaintiffs’ attorneys caught wind of those developments.

At 1:12 a.m. that Saturday, they filed a class action complaint

and habeas petition in the District Court for the District of

Columbia and moved for a TRO to prevent their clients’

removal under the Proclamation. Plaintiffs, acting for

themselves and a class of similarly situated detainees, claimed

the AEA is inapplicable to TdA, which is not the Venezuelan

government, and challenged defendants’ reliance on the AEA

to sidestep protections of applicable statutes and the Due

Process Clause. See Compl. ¶¶ 1-4, 70-106, J.G.G. v. Trump,

No. 25-cv-766 (JEB), Dkt. No. 1 (D.D.C. Mar. 15, 2025). Each

plaintiff was already being held in immigration custody, and

each “adamantly denie[d] that he [was] . . . a member of Tren

de Aragua.” J.G.G., 2025 WL 1119481, at *2.

Upon receiving no response from defendants, the district

court issued an ex parte TRO at 9:40 a.m. “to maintain the

status quo until a hearing can be set.” 9:40 a.m. Minute Order,

J.G.G. v. Trump, No. 25-cv-766 (JEB) (D.D.C. Mar. 15, 2025).

The five named plaintiffs and their counsel each attested that

plaintiffs were being held at the El Valle Detention Facility in

Raymondville, Texas, and were told they would be deported at

some point in the next two days. The TRO enjoined defendants

from “remov[ing] any of the individual Plaintiffs from the

United States.” Id. In response, defendants “abruptly

removed” several of the named plaintiffs from the planes. 2025

WL 1119481, at *2.

But defendants appeared to be moving forward with

preparations to fly the hundreds of unnamed class members to

El Salvador, so plaintiffs’ counsel quickly moved for class

certification and a TRO to protect the class against removal

under the AEA before the court could consider its legality. See

Emergency Appl. for TRO at 1, J.G.G. v. Trump, No. 25-cv-

766 (JEB), Dkt. No. 3 (D.D.C. Mar. 15, 2025). At plaintiffs’

10

request, the district court set an emergency hearing for 5:00

p.m. the same day.

An hour before the Saturday afternoon hearing was set to

begin, the White House made the Proclamation public by

posting it on its website. See Proclamation No. 10903, 90 Fed.

Reg. 13033 (Mar. 20, 2025); J.G.G., 2025 WL 1119481, at *3.

Then, with the hearing before the district court already

underway, defendants rushed to dispatch two flights removing

Venezuelan detainees pursuant to the Proclamation. At the

hearing, the district court asked counsel for defendants whether

there were any “removals under this proclamation planned . . .

in the next 24 or 48 hours.” Hr’g Tr. 11:13-14, J.G.G. v.

Trump, No. 25-cv-766 (JEB), Dkt. No. 20 (D.D.C. Mar. 16,

2025) [hereinafter Hr’g Tr.]. Counsel that defendants had sent

to court to represent them on a challenge to the removals’

legality replied “I don’t know the answer to that question.”

Hr’g Tr. 11:15-16. When the court asked how soon he could

get that information, counsel responded “I can certainly talk to

them ASAP,” and undertook “as quickly as possible” to “find

out that information.” Hr’g Tr. 11:21-25. The court took a

brief recess to allow counsel to confer with his clients.

We now know that one flight departed at 5:25 p.m. and the

other at 5:45 p.m. J.G.G., 2025 WL 1119481, at *3. When the

hearing reconvened at 6:00 p.m., defendants’ counsel reported

that he had “talked to the clients” who let him know

“operational details as to what is going on.” Hr’g Tr. 15:9-11.

When he referred to “potential national security issues” and

said “we may be able to provide Your Honor additional details

in an in camera hearing,” the court immediately responded

“Fine.” Hr’g Tr. 15:11-16. The courtroom deputy promptly

closed the public line to enable an in camera session. But, with

those arrangements in place, defendants’ counsel said he had

nothing he could report about removal flights—even though in

11

fact two flights with over two hundred people on board had by

then taken off. Plaintiffs’ counsel then stated his understanding

“that two flights went to El Salvador this afternoon; one very

recently,” and another (he thought but was not “entirely sure”)

was scheduled to depart for Honduras at 6:23 p.m., meaning

“only in a matter of minutes.” Hr’g Tr. 17:24-18:3.

“With growing realization . . . that the Government might

be rapidly dispatching removal flights in an apparent effort to

evade judicial review,” the district court then moved swiftly to

provisionally certify a class of plaintiffs including all

noncitizens in U.S. custody subject to removal solely under the

Proclamation. J.G.G., 2025 WL 1119481, at *4. At around

6:45 p.m., with flights in the air, the court granted the TRO:

So I find that a TRO is appropriate for the class members,

and it would be to prevent the removal of the class for 14

days or until further order of the Court. And the class will

be all noncitizens in U.S. custody who are subject to the

proclamation of March 15, 2025, and its implementation.

Hr’g Tr. 42:16-21. Spelling out how the TRO applied to the

facts if they were as the plaintiffs described, the court said that,

if class members were on a plane “that is going to take off or is

in the air,” then

those people need to be returned to the United States.

However that’s accomplished, whether turning around a

plane or not embarking anyone on the plane . . . I leave to

you. But this is something that you need to make sure is

complied with immediately.

Hr’g Tr. 43:13-19. Several attorneys from the Department of

Justice listened on the public line to the district court delivering

that command. See Show Cause Hr’g Tr. 19:4-21, J.G.G. v.

Trump, No. 25-cv-766 (JEB), Dkt No. 76 (D.D.C. Apr. 4,

12

2025).1 Former counsel for DOJ has since attested that he

communicated in a 6:44 p.m. email to client officials at DHS

Office of General Counsel, ICE Office of the Principal Legal

Advisor, and the DOS Office of Legal Advisor that the court

had issued a class-wide TRO, and in a 6:48 p.m. email that it

“specifically ordered us to not remove anyone in the class, and

to return anyone in the air.” Mot. to Supplement, Ex. A-4 at

17-19; ACLU Rule 28(j) Letter (June 25, 2025), Ex. 1 at 4, 11.

The court entered a minute order on its docket at 7:25 p.m.

memorializing the TRO announced from the bench:

As discussed in today’s hearing . . . [t]he Government is

ENJOINED from removing [class members] pursuant to

the Proclamation for 14 days.

1

One of the lawyers listening to the hearing when the court ruled was

Erez Reuveni, who, at the time, was Acting Deputy Director for the

Office of Immigration Litigation. Mr. Reuveni has since disclosed

to Congress multiple emails he sent, beginning at 6:14 p.m. on March

15 and continuing until 8:07 a.m. the following morning, to senior

Homeland Security and State Department officials. He reported on

the entry of the TRO from the bench and the judge’s explanation that

it applied to plaintiff class members who might already be on planes

in the air. And he specifically confirmed at 10:13 p.m. that the TRO

prohibited removing detainees who had not yet been disembarked

from flights on the ground in El Salvador and restated DOJ’s

understanding that anyone in the air should be returned to the United

States. He further attests that lead counsel for defendants—Drew

Ensign—also sent an email at 7:31 p.m. (after the issuance of the

Minute Order) to those officials informing them of the injunction and

that it prohibited them from removing anyone within the class

definition. Mr. Ensign, like Mr. Reuveni, understood that the TRO

prohibited DHS from deplaning abroad any detainees on planes that

had departed U.S. airspace. See ACLU Rule 28(j) Letter (June 25,

2025), Ex. 1 at 4, 11-13; Mot. to Supplement, Ex. A-4 at 17-20.

13

7:25 p.m. Minute Order, J.G.G. v. Trump, No. 25-cv-766 (JEB)

(D.D.C. Mar. 15, 2025) [hereinafter 7:25 p.m. Minute Order].

The two removal flights that had departed with hundreds

of plaintiff class members on board did not turn back. In the

face of the district court’s TRO barring plaintiffs’ removal,

defendants appear to have taken no steps to comply. Nor, to

the extent there was any confusion about the meaning of the

TRO, did defendants seek any clarification from the court. The

planes flew on to Honduras, one touching down at 7:37 p.m.

and the other at 8:10 p.m., and they remained there for several

hours. The planes did not then return from Honduras to the

United States. Instead, they continued to El Salvador, landing

in that country shortly after midnight on March 16.

Because women and Central American nationals were not

accepted at the notorious Center for Terrorism Confinement

(CECOT), U.S. agents retained custody of the handful of

women and one Nicaraguan man aboard these planes and

returned them to the United States. See J.G.G., 2025 WL

1119481, at *4. They transferred the rest of the detainees into

Salvadoran custody for imprisonment in CECOT.

Plaintiff class members remained imprisoned at CECOT

for four months, with no access to counsel or information

available about their circumstances. Just days ago, the United

States announced that 252 of those detainees have been

repatriated to Venezuela as part of a prisoner exchange. The

plaintiff class members, many of whom sought asylum in the

United States because of persecution they suffered at the hands

of the Venezuelan government and Tren de Aragua, still do not

appear to have been provided any opportunity to dispute the

executive branch’s allegations that they belong to TdA or the

legality of the Proclamation. See Manuel Rueda, 10 Americans

Are Freed by Venezuela in a Prisoner Swap for Migrants in El

14

Salvador, NPR (July 18, 2025), https://perma.cc/AE7U-SC3F.

Several of the class members who have been transferred to

Venezuela report that prison staff at CECOT subjected them to

abuse. See Sergio Martínez-Beltrán & Manuel Rueda, ‘Hell on

Earth’: Venezuelans Deported to El Salvador Mega-Prison

Tell of Brutal Abuse, NPR (July 27, 2025),

https://perma.cc/TP69-SMHJ.

B.

Following the March 15 emergency hearing, the district

court denied defendants’ motion to vacate its TRO. The court

held that plaintiffs were likely to succeed on their claim that the

Due Process Clause guarantees individuals subject to removal

under the Proclamation an opportunity to challenge the

government’s assertion that they are enemy aliens before they

are removed on that basis. Defendants appealed, and we denied

a stay pending appeal. The two judges supporting that denial

doubted that the activities of a criminal gang satisfied the Alien

Enemies Act’s requirement that there be an “invasion or

predatory incursion . . . against the territory of the United States

by any foreign nation,” 50 U.S.C. § 21, and objected to the lack

of process afforded to the people subject to removal. See

J.G.G. v. Trump, No. 25-5067, 2025 WL 914682, at *8-10

(D.C. Cir. Mar. 26, 2025) (Henderson, J., concurring); id. at

*13-14 (Millett, J., concurring).

The Supreme Court summarily vacated the TROs on the

ground that habeas claims belong in the district of a detainee’s

confinement, not in the District of Columbia where defendants

are located. Trump, 145 S. Ct. at 1005-06. The Court

unanimously held, however, that detainees subject to removal

orders under the AEA are entitled to advance notice and an

opportunity to challenge their removal. Id. at 1006; id. at 1011-

12 (Sotomayor, J., dissenting). The Court has since enjoined

15

further removals to ensure detainees receive the process they

are due. See A.A.R.P. v. Trump, 145 S. Ct. 1034 (2025).

Meanwhile, the district court began to consider whether

defendants had knowingly defied its TRO by transferring

detainees to Salvadoran custody after it enjoined them from

doing so. The court issued an Order to Show Cause eliciting

briefing on whether defendants had violated the court’s TRO

by failing to return class members they flew to El Salvador on

the evening of March 15 and turning them over for indefinite

imprisonment there. It then issued a Memorandum Opinion

and Order identifying probable cause to believe that they had.

J.G.G., 2025 WL 1119481, at *22.

The court noted that, from the outset of the emergency

proceedings, defendants “refused to provide any relevant facts”

in hearings and filings and implausibly invoked the state-

secrets doctrine to avoid (or perhaps only to delay) providing—

even ex parte—publicly available flight details. Id. at *5-6. It

reasoned that the “numerous exchanges throughout the

hearing” demonstrated that its TRO was “clear and specific in

proscribing the handover of class members to Salvadoran

officials.” Id. at *15. And it explained why defendants’

assertion that the TRO might have been read to prevent only

the physical removal of class members from the territory of the

United States is unsupportable. Id. at *11-13. The wording

was clear, defendants acknowledged that the TRO must be

understood in the context in which it was issued, and “[a]nyone

paying attention to the hearing” would have known that the

TRO sought to prevent “not [plaintiffs’] mere transportation

across the U.S. border, but instead their discharge from U.S.

custody into a foreign country or into foreign hands.” Id. at

*12.

16

Accompanying its probable-cause Memorandum Opinion,

the court entered the Order from which my colleagues conclude

defendants have a clear and indisputable right to relief. The

Order says:

Given the finding of probable cause for contempt set

forth in the accompanying Memorandum Opinion, the

Court ORDERS that:

1. If Defendants opt to purge their contempt, they shall

file by April 23, 2025, a declaration explaining the

steps they have taken and will take to do so; and

2. If Defendants opt not to purge their contempt, they

shall instead file by April 23, 2025, declaration(s)

identifying the individual(s) who, with knowledge of

the Court’s classwide Temporary Restraining Order,

made the decision not to halt the transfer of class

members out of U.S. custody on March 15 and 16,

2025.

April 16 Order. The district court thereby ordered the

production of information to enable it to assess a potential

referral for a contempt prosecution. And it offered defendants

an opportunity to avoid such a referral, whether by taking steps

to enable the individuals removed in apparent violation of the

Court’s classwide TRO to exercise their right to challenge their

removability, or by another “method[] of coming into

compliance” defendants themselves could propose. J.G.G.,

2025 WL 1119481, at *20.

Defendants moved the district court and this court to stay

that order pending appeal. The district court denied the motion

based, in part, on its view that defendants had not “made an

adequate showing [of likelihood of success] on the merits” nor

17

shown irreparable harm or any public interest in support of a

stay. J.G.G. v. Trump, No. 25-cv-766 (JEB), 2025 WL

1337037, at *1 (D.D.C. Apr. 18, 2025). As to the unlikelihood

that defendants would succeed in challenging the probable-

cause order, the court held that defendants “misconstru[ed] . . .

the Court’s directive” as having committed to a contempt

prosecution. Id. The court underscored that it “might

eventually refer this matter for prosecution,” but that “we are

not at that juncture,” making “separation-of-powers arguments

concerning any future prosecution(s) . . . premature and

misplaced.” Id. Defendants then filed in this court an

emergency motion for stay pending appeal or, in the

alternative, a writ of mandamus. Because the district court’s

order was not appealable, I noted my dissent from my

colleagues’ imposition of an administrative stay.

II.

As in every case, we must first “assure ourselves of our

jurisdiction.” Perry Capital LLC v. Mnuchin, 864 F.3d 591,

603 (D.C. Cir. 2017). Defendants assert that there are two

grounds for us to exercise jurisdiction to stay or vacate the

district court’s Order. First, they contend we may enter a stay

pending appeal because the Order is effectively an injunction

or an appealable collateral order. Alternatively, they argue that

a writ of mandamus under the All Writs Act is appropriate to

halt the proceedings below. See 28 U.S.C. § 1651.

The panel is unanimous that no immediate appeal is

available. My colleagues instead grant a writ of mandamus.

They thus face the high burden to justify intervening in an

ongoing district court proceeding to overturn an unappealable

district court order. The extraordinary writ of mandamus is

available only when: (1) “the party seeking issuance of the writ

[has] no other adequate means to attain the relief he desires;”

18

(2) “the petitioner [satisfies] the burden of showing that his

right to issuance of the writ is clear and indisputable;” and (3)

“the issuing court, in the exercise of its discretion, [is] satisfied

that the writ is appropriate under the circumstances.” Cheney,

542 U.S. at 380-81 (citations, internal quotation marks, and

alterations omitted). Because it has not been shown to be

available here, I would also deny mandamus relief.

I proceed by recounting how settled contempt doctrine

establishes the district court’s authority to proceed with its

criminal contempt inquiry despite the Supreme Court’s vacatur

of the underlying TRO. I then address, in turn, Judge Katsas

and Judge Rao’s separate analyses as to why mandamus relief

is warranted to halt those proceedings. I explain why each

theory is inconsistent with our precedent governing contempt

proceedings, the demanding standard for mandamus relief, and

the facts.

A.

It is fundamental to the “fair administration of justice” that

“no man can be judge in his own case” and “ignore all the

procedures of the law.” Walker v. City of Birmingham, 388

U.S. 307, 320-21 (1967). That rule applies no less to executive

branch officials than to anyone else who seeks protection or

vindication in the courts. A court has “inherent contempt

authority” to punish disobedience as a power “‘necessary to the

exercise of all others.’” Int’l Union, United Mine Workers of

Am. v. Bagwell, 512 U.S. 821, 831 (1994) (quoting United

States v. Hudson, 7 Cranch 32, 34 (1812)). “Criminal contempt

is a crime in the ordinary sense,” Bloom v. Illinois, 391 U.S.

194, 201 (1968), working mainly through deterrence but

ultimately dependent on recognized authority to punish

defiance when it occurs. Congress codified that authority in 18

U.S.C. § 401, which provides that any “court of the United

19

States shall have power to punish by fine or imprisonment, or

both, at its discretion, . . . [d]isobedience or resistance to its

lawful writ, process, order, rule, decree, or command.” 18

U.S.C. § 401(3).

The district court’s authority to find probable cause that

criminal contempt occurred is well established, and it is

undiminished by the Supreme Court’s holding—after the

potentially contemptuous action—that venue of plaintiffs’

habeas claims lay in Texas, not here.

Court orders routinely meet with strong opposition.

Ensuring that opposition seeks vindication by appeal within the

legal system, not in defiance of it, depends on contempt

authority. Whether valid or not, “an order issued by a court

. . . must be obeyed by the parties until it is reversed by orderly

and proper proceedings.” United States v. United Mine

Workers of Am., 330 U.S. 258, 293 (1947). Because criminal

contempt undergirds the obligation to obey even legally

defective court orders, a party “may be punished for criminal

contempt for disobedience of an order later set aside on

appeal,” even if it is set aside because the district court lacked

jurisdiction over the action. Id. at 289-95.

The contempt power notably provides stronger protection

of judicial commands than the law affords to authoritative

statements of lawmakers or regulators: One who is prosecuted

for violating an invalid law or regulation may successfully

defend by challenging its legality, but the collateral bar rule

generally deprives a person of the same defense if he violates a

court order applying that same law. That is why civil rights

demonstrators who marched through Birmingham on Easter

Sunday 1963 in defiance of a court injunction enforcing

Birmingham’s unconstitutional parade ordinance had no First

Amendment defense to criminal contempt, whereas marchers

20

not subject to the injunction successfully challenged their

convictions based on the parade ordinance’s constitutional

flaw. Compare Walker, 388 U.S. at 321, with Shuttlesworth v.

City of Birmingham, 394 U.S. 147, 159 (1969).

The district court’s authority to consider criminal

contempt is thus plainly unaffected by the Supreme Court’s

vacatur of the TRO for want of venue. Defendants argue only

that the district court lacked authority to pursue civil contempt

because the TRO had been vacated. See Reply in Supp. of Stay

5 n.1 (citing Willy v. Coastal Corp., 503 U.S. 131, 139 (1992)).

But the Supreme Court in Willy acknowledged that, even if the

order a putative contemnor defied is later held to have been

entered by a court lacking jurisdiction, it could nonetheless

support “a criminal contempt citation.” Willy, 503 U.S. at 137

(citing Mine Workers, 330 U.S. 258). To the extent that Judge

Katsas suggests otherwise, he claims only that the “impact of

jurisdictional defects in subsequent criminal-contempt

proceedings is unclear.” Katsas Op. 32. But the defect is not

“jurisdictional”; it has no impact on the criminal-contempt

proceedings, see Mine Workers, 330 U.S. at 294, as Judge Rao

appears to join me in recognizing, Rao Op. 8 n.2; and even if

its impact here were not clear, the “unclear” impact of a venue

defect on a court’s power to punish contempt of court is no

basis for mandamus.

Because of the potency of the criminal contempt power,

parties facing a potential contempt charge have significant

procedural rights. See Bagwell, 512 U.S. at 831-32. An

accused contemnor may be entitled to “notice and a hearing,”

“the full protections of a criminal jury trial,” and the “right[] to

counsel.” Id. at 832-34. Further, criminal contempt must be

proved “beyond a reasonable doubt.” Id. at 834.

21

And, although not required, courts sometimes opt to

provide additional protection to a potential criminal contemnor

by making a finding of probable cause before initiating

contempt proceedings. See J.G.G., 2025 WL 119581, at *8

(noting examples). The district court in this case considered

“that practice to be a prudent way of affording alleged

contemnors the procedural protections associated with other

criminal proceedings,” and so followed it here. Id.

B.

Judge Katsas votes to grant mandamus relief because, in

his view, the March 15 TRO’s prohibition against “removing”

the plaintiff class members was fatally ambiguous and

therefore unable to support a contempt determination.

Recognizing that “mandamus must not become a ‘substitute for

the regular appeal process,’” Katsas Op. 25 (quoting Cheney,

542 U.S. at 380–81), he identifies various anticipated

separation of powers concerns that he concludes tip the scale

in favor of mandamus. But no prosecution has been authorized,

no conduct of foreign relations ordered, and defendants have

adequate means to assert ambiguity or separation-of-powers

defenses in the ordinary course of any criminal contempt

prosecution that might ensue. Because defendants will have

ample, timely opportunity to assert their defenses, none of

them, whether singly or combined, is grounds for a writ of

mandamus.

And in any case, defendants have no clear right to relief.

The TRO was not ambiguous. The district court could hardly

have been clearer. On the record in open court, with multiple

executive branch representatives listening, the court ordered

defendants for 14 days or until further notice not to remove the

class of noncitizens in its custody based on the Proclamation.

Hr’g Tr. 42:16-21 (“I find that a TRO is appropriate . . . to

22

prevent the removal of the class for 14 days or until further

order of the Court.”); see 7:25 p.m. Minute Order (“As

discussed in today’s hearing . . . [t]he Government is

ENJOINED from removing [noncitizens in U.S. custody]

pursuant to the Proclamation for 14 days.”).

The only “ambiguity” was the factual opacity executive

branch officials created by refusing to provide the court with

any information whatsoever about what they were doing or had

done with the class members. During the TRO hearing, even

as defendants were secretly rushing to get the plaintiffs into the

Salvadoran prison, their counsel was filibustering the court’s

direct inquiries with assertions that he had no facts to share.

Once confronted with “plaintiffs’ information[,] unrebutted by

the government that flights are actively departing and plan to

depart,” Hr’g Tr. 43:6-10, the court quickly shifted from its

patient yet fruitless factual questioning of defendants’ counsel

to rule on the predicate questions and announce the TRO.

Immediately after he announced the TRO barring the

plaintiffs’ “removal,” Judge Boasberg explained in concrete

and specific terms what the bar against “removing” the class

members meant on the opaque and shifting facts before him.

In open court, he told defendant’s counsel to “inform your

clients of this immediately” that “any plane containing these

folks that is going to take off or is in the air . . . those people

need to be returned to the United States. However that’s

accomplished, whether turning around a plane or not

embarking anyone on the plane, I leave to you. But this is

something that you need to make sure is complied with

immediately.” Hr’g Tr. 43:12-19. The clarity and force of

those statements was striking to anyone paying attention to the

proceedings.

23

1.

As an initial matter, Judge Katsas’ analysis does not justify

mandamus because defendants have “other adequate means to

attain the relief [they] desire[].” Cheney, 542 U.S. at 380.

Defendants’ key argument—that the TRO is ambiguous—is a

quintessential merits defense to prosecution for criminal

contempt. But the court has not even announced it will make a

referral for such a prosecution. If defendants are prosecuted,

they will have the opportunity to raise any such defense during

those proceedings; if convicted, they will have the opportunity

to raise it again on appeal. That is how defendants have raised

similar arguments in every other case we have heard evaluating

the clarity of an injunction for contempt purposes. See, e.g.,

Holloway, 995 F.2d at 1081-82; United States v. Young, 107

F.3d 903, 907-08 (D.C. Cir. 1997); In re Levine, 27 F.3d 594,

595-96 (D.C. Cir. 1994).

Neither defendants nor Judge Katsas identify any case in

which putative ambiguity in the disobeyed court order

constituted grounds for a writ of mandamus to abort a contempt

inquiry even before any charging decision has been made.

Granting the writ here is especially inappropriate. As

explained in greater detail below, defendants have offered only

spurious, post hoc rationalizations to manufacture ambiguity

where there is none.

To the extent defendants suggest such a departure from our

regular procedure is warranted in this case because of

separation-of-powers concerns, those arguments are premature

and, at least as vaguely sketched at this stage, meritless. “A

fundamental and longstanding principle of judicial restraint

requires that courts avoid reaching constitutional questions in

advance of the necessity of deciding them.” Lyng v. Nw. Indian

Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).

Defendants have not claimed any applicable constitutional

24

privilege shielding them from the obligation to comply with the

district court’s order to disclose the names of relevant

decisionmakers. Their separation-of-powers objections are

illusory and, at best, unripe. No appointment of an independent

prosecutor has been made, nor even any referral to the Justice

Department for prosecution. See J.G.G., 2025 WL 1119481,

at *21. If it comes to that, there will be a time—perhaps as

early as a charging decision—for defendants to raise their

separation-of-powers claims. Assessing defendants’ sweeping

constitutional assertions in their current contingent,

speculative, and nebulous form, without a concrete context

necessitating their resolution, is not a task we should embrace

in any context. And the demanding mandamus standard makes

our avoidance obligation dispositive: The availability of other

means to resolve defendants’ constitutional objections, if and

when they arise, should have caused us to deny mandamus.

Judge Katsas also objects to the probable-cause Order’s

invitation to provide a process for plaintiffs to challenge their

membership in Tren de Aragua as a potential path out of the

contempt inquiry because he insists it interferes with the

Executive’s constitutional power to conduct foreign affairs.

But the Order does not require the executive branch to

“effectuat[e]” detainees’ return. Katsas Op. 29. It fully

respects the executive branch’s diplomatic prerogatives. The

Venezuelan government, which apparently now has custody of

the plaintiff class members, has announced that it will permit

them to leave Venezuela to travel to the United States if: (1)

they are called for in legal proceedings, such as a habeas

hearing, or otherwise required by court order; (2) the U.S.

government is willing to facilitate their travel; and (3) they are

willing to travel to the United States. See Harper Decl. ¶ 9,

J.G.G. v. Trump, 25-cv-766 (JEB), Dkt. No. 168-1 (D.D.C.

July 18, 2025).

25

And, if the Executive elects to “assert custody,” Katsas

Op. 28, presumably with the cooperation of the Venezuelan

government, nothing in the Order suggests that successfully

doing so would require the U.S. to “release any of those

individuals” within the United States. J.G.G., 2025 WL

1119481, at *20. In that regard, the Order’s approach comports

with the Supreme Court’s recent decision upholding an order

insofar as it urges the executive branch to “facilitate” a

resident’s “release from custody in El Salvador.” Noem, 145

S. Ct. at 1018. That is especially true when the court has

invited defendants to propose their own, preferred approach as

the district court did here. None of that amounts to

commandeering the foreign policy of the United States. But

even if the “purge” option were somehow beyond the court’s

power to include, the correct course would be to grant

mandamus relief by striking that option for avoiding criminal

contempt proceedings, not the order in its entirety.

The prematurity of defendants’ objections also

demonstrates why they fail the third requirement for mandamus

relief—that issuance of the writ be an appropriate exercise of

judicial discretion under the circumstances. Defendants could

take their pick of compliance alternatives. If they opted to

afford the plaintiff class members the process that habeas

requires, the district court’s invitation to propose other

acceptable “methods of coming into compliance” would

remain open to them. J.G.G., 2025 WL 1119481, at *20. None

of that would “interfere” with the executive branch’s ability to

discharge its constitutional responsibilities. Katsas Op. 26.

And the ball is still entirely in defendants’ court. Without

having made any decision as to what they will do, they cannot

show that the “writ is appropriate under the circumstances.”

Cheney, 542 U.S. at 381. That is yet another reason mandamus

is not warranted.

26

2.

Defendants also have not carried their burden to

demonstrate a clear and indisputable right to relief. They claim

such a right based on their assertion that the TRO is ambiguous

and therefore cannot support a contempt conviction. But the

TRO unambiguously forbade the very actions defendants took.

“In determining whether an order is sufficiently clear and

specific to justify a contempt conviction, we apply an objective

standard that takes into account both the language of the order

and the objective circumstances surrounding the issuance of the

order.” United States v. Young, 107 F.3d 903, 907 (D.C. Cir.

1997).

The court’s language was plain. It restrain

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