The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 14, 2026
No. 25-5452
IN RE: DONALD J. TRUMP, ET AL.,
PETITIONERS
On Petition for Writ of Mandamus
(No. 1:25-cv-00766)
Brett A. Shumate, Assistant Attorney General, U.S.
Department of Justice, Yaakov M. Roth, Principal Deputy
Assistant Attorney General, and Tiberius T. Davis, Counsel to
the Assistant Attorney General, were on the petition for writ of
mandamus and the reply in support of the petition for writ of
mandamus.
Evelyn Danforth-Scott, My Khanh Ngo, Cody Wofsy, Lee
Gelernt, Daniel Galindo, Ashley Gorski, Patrick Toomey,
Omar Jadwat, Hina Shamsi, Arthur B. Spitzer, Scott
Michelman, Aditi Shah, and Kathryn Huddleston were on the
opposition to the petition for writ of mandamus. Michael Tan
entered an appearance.
Before: RAO, WALKER, and CHILDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
Concurring opinion filed by Circuit Judge WALKER.
Dissenting opinion filed by Circuit Judge CHILDS.
2
RAO, Circuit Judge: More than a year ago, the President
invoked the Alien Enemies Act against members of Tren de
Aragua, a Venezuelan criminal gang and foreign terrorist
organization, and ordered that they be detained and removed
from the United States. In a series of fast-moving events on
March 15, 2025, the government placed a group of alleged
gang members, including plaintiffs in this case, on planes to El
Salvador. After the planes took off and left the country, the
district court ordered the government not to remove the
plaintiffs from the United States.
The Supreme Court vacated the district court’s order
because it was premised on a legal error and the plaintiffs’ suit
was brought in the wrong court. Nonetheless, the district court
threatened to hold government officials in criminal contempt
unless they complied with the now-vacated order by, for
instance, taking back custody of the plaintiffs. We issued a writ
of mandamus vacating the court’s first contempt order.
Undeterred, the district court is proceeding with criminal
contempt for the government’s decision to transfer the
plaintiffs to the custody of El Salvador. To cooperate, the
government identified then-Secretary of Homeland Security
Kristi Noem as the official responsible for the transfer decision.
The district court previously said this was the only information
it required to make a referral for prosecution. But the district
court has now expanded its inquest and ordered hearings to
extract more information from government counsel about
exactly what happened last March. The government petitions
for mandamus.
The widening gyre of the district court’s investigation
again calls for the extraordinary remedy of mandamus to halt
the judicial “impairment of another branch in the performance
of its constitutional duties.” Cheney v. U.S. Dist. Ct. for D.C.,
3
542 U.S. 367, 390 (2004) (cleaned up). The district court
proposes to probe high-level Executive Branch deliberations
about matters of national security and diplomacy. These
proceedings are a clear abuse of discretion, as the district
court’s order said nothing about transferring custody of the
plaintiffs and therefore lacks the clarity to support criminal
contempt based on the transfer of custody. Moreover, the
government has already provided the name of the responsible
official, so further judicial investigation is unnecessary and
therefore improper. In these circumstances, mandamus is
appropriate to prevent the district court from assuming an
antagonistic jurisdiction that encroaches on the autonomy of
the Executive Branch.
I.
Our assessment of the government’s second petition for a
writ of mandamus must account for the remarkable procedural
posture of this case. We proceed by recounting the escalating
exchanges between the district court and the government that
have brought us to this stage.
A.
On March 14, 2025, the President invoked his authority
under the Alien Enemies Act (“AEA”) and proclaimed that the
foreign terrorist organization Tren de Aragua had perpetrated
an “invasion or predatory incursion.”1 Invocation of the Alien
1
In February 2025, the Secretary of State designated Tren de Aragua
as a foreign terrorist organization under the Antiterrorism and
Effective Death Penalty Act of 1996. Foreign Terrorist Organization
Designations, 90 Fed. Reg. 10030 (Feb. 20, 2025); see 8 U.S.C.
§ 1189(a)(1). This designation was based on a finding that Tren de
Aragua “threatens the security of United States nationals or the
national security of the United States.” 8 U.S.C. § 1189(a)(1)(C).
4
Enemies Act Regarding the Invasion of the United States by
Tren de Aragua, 90 Fed. Reg. 13033, 13034 (Mar. 20, 2025)
(“AEA Proclamation”); see 50 U.S.C. § 21. The President
determined that Tren de Aragua was operating “at the
direction” of Venezuelan authorities to “invade,” “conduct[]
irregular warfare,” and “undertak[e] hostile actions against the
United States.” AEA Proclamation, 90 Fed. Reg. at 13033–34.
The President directed the Attorney General and Secretary of
Homeland Security to, “consistent with applicable law,
apprehend, restrain, secure, and remove” Tren de Aragua
members who were not naturalized or lawful permanent
residents. Id. at 13034.
In the early hours of the next day, March 15, suspected
Tren de Aragua members detained in Raymondville, Texas,
were transported to a nearby airport in preparation for their
removal from the United States. Counsel for five of the
detainees had learned of the planned removals and filed suit
seeking emergency relief in the United States District Court for
the District of Columbia. The complaint named the President,
the Attorney General, the Secretary of Homeland Security, and
other Executive Branch officials and agencies as defendants.
The plaintiffs brought, inter alia, Administrative Procedure
Act (“APA”) and federal habeas corpus claims and sought to
represent a class of similarly situated detainees. They also
requested a temporary restraining order enjoining their removal
from the United States and, in the event they had been removed
but remained in United States custody, ordering the
government to return them to the United States.
The district court issued an ex parte order at 9:40 a.m. that
barred the government from “remov[ing] any of the individual
Plaintiffs from the United States for 14 days.” First Minute
5
Order (Mar. 15, 2025).2 The government returned the named
plaintiffs to the detention facility.
At 5:00 p.m. the same day, the district court held an
emergency hearing to determine whether to certify a class of
detainees and to extend interim relief to the broader class. The
district court asked government counsel whether any removals
under the AEA Proclamation were planned for the next 24 or
48 hours. Counsel responded that he did not know but would
try to find out. The district court adjourned the hearing until
6:00 p.m. so counsel could learn more and report back. While
the hearing was adjourned, two flights of detainees departed.
When the hearing resumed, plaintiffs’ counsel informed
the district court that two flights had already departed and
another flight was expected to follow. Observing that “flights
are actively departing and plan to depart,” the district court
provisionally certified a class of detainees. Mar. 15 Hr’g Tr. at
23–25, 43. Relying on the plaintiffs’ APA claims, the court
granted a class-wide temporary restraining order. The district
court directed 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
2
Record citations to the proceedings below are from J.G.G. v.
Trump, No. 25-cv-766 (D.D.C.), unless otherwise indicated.
6
that you need to make sure is complied with
immediately.
Id. at 43. The court also stated that it would “issue a minute
order memorializing” the oral directive “so you don’t have to
race to write it down.” Id. at 42.
Shortly after the hearing, the district court issued the
written temporary restraining order at issue in these contempt
proceedings. The court certified a class of aliens subject to the
AEA Proclamation and directed that the “Government is
ENJOINED from removing members of such class (not
otherwise subject to removal) pursuant to the Proclamation for
14 days or until further Order of the Court.” Second Minute
Order (Mar. 15, 2025) (“TRO”). Several hours later, the two
planes that had departed before the TRO issued arrived in El
Salvador, where Salvadoran authorities transferred most of the
detainees to the Center for Terrorism Confinement.3
After this court denied the government’s request for an
emergency stay, the Supreme Court vacated the TRO. The
Court determined that plaintiffs’ challenge to their detention
and removal could not be brought under the APA because they
“fall within the ‘core’ of the writ of habeas corpus” and
therefore must be brought in habeas. Trump v. J.G.G., 145
S. Ct. 1003, 1005–06 (2025) (per curiam) (cleaned up); see
also id. at 1007 (Kavanaugh, J., concurring) (explaining “that
habeas corpus, not the APA, is the proper vehicle” for the
plaintiffs’ claims). Because habeas petitions must be brought
in the district of confinement, the Court held the government
3
No flights departed pursuant to the AEA Proclamation after the
district court issued the TRO. See J.G.G. v. Trump, 778 F. Supp. 3d
24, 34 (D.D.C. 2025) (recognizing a third flight took off at 7:36 p.m.
but carried only individuals removable under non-AEA authorities).
7
was likely to succeed on the merits because the District of
Columbia was not the proper venue for detainees confined in
Texas. Id. at 1005–06.
Despite the Supreme Court’s vacatur of the TRO, the
district court forged ahead with criminal contempt proceedings
on the theory that the government had violated the TRO by
transferring the detainees to Salvadoran custody. Recognizing
the vacated TRO could not serve as the basis for civil contempt,
the district court nonetheless reasoned that “the fact that the
TRO was legally unsound is no obstacle to a [criminal]
contempt conviction.”4 J.G.G. v. Trump, 778 F. Supp. 3d 24,
39 (D.D.C. 2025). The court found probable cause that the
government committed criminal contempt. On the district
court’s view, the TRO was a “clear and unequivocal” command
“that anyone on a removal flight that had already landed abroad
should not be discharged from U.S. custody and turned over to
Salvadoran … authorities.” Id. at 46. And the government had
“willfully disobeyed” this directive. Id. at 54.
According to the district court, the only step left on the
path to criminal contempt was to “identify the individual(s)
responsible for the contumacious conduct” so the district court
could ask the government to prosecute that individual or, if the
government declined, “appoint another attorney to prosecute
the contempt.” Id. (quoting Fed. R. Crim. P. 42(a)(2)). The
district court offered to forgo referral for prosecution if the
government came into compliance with the district court’s
understanding of the vacated TRO, such as by asserting
4
The district court explained its probable cause finding in a
memorandum opinion, J.G.G. v. Trump, 778 F. Supp. 3d 24 (D.D.C.
2025), incorporated by reference in the accompanying Probable
Cause Order (April 16, 2025). For simplicity, we refer to both the
opinion and order as the “probable cause order.”
8
custody over the affected detainees so they could challenge
their removals.
The government petitioned for a writ of mandamus. We
granted the petition and vacated the probable cause order
because the district court had clearly exceeded its lawful
authority. J.G.G. v. Trump, 147 F.4th 1044, 1045 (D.C. Cir.
2025) (per curiam). Judge Katsas concluded that because the
TRO was insufficiently clear, there was no possibility for a
criminal contempt conviction. Id. at 1046 (Katsas, J.,
concurring). Judge Rao concluded that the specific legal error
consisted in leveraging the threat of criminal contempt to force
the government’s compliance with an order the Supreme Court
had vacated. Id. at 1065 (Rao, J., concurring). Although the two
judges in the majority identified different legal errors,5 they
agreed mandamus was appropriate and that criminal contempt
proceedings in this area of foreign affairs raised grave
separation of powers concerns. J.G.G., 147 F.4th at 1059–60,
1062–63 (Katsas, J., concurring); id. at 1065–70, 1073 (Rao,
J., concurring). Judge Rao also highlighted the “difficult
questions that would arise from initiating criminal contempt
against senior Executive Branch officials,” and explained that
“[i]f the district court chooses the problematic and uncertain
path of criminal contempt, the government may seek relief
5
Judge Katsas would have terminated the district court proceedings
because no criminal contempt prosecution could result in a
conviction. Id. at 1063 (Katsas, J., concurring). Judge Rao
determined the mandamus remedy should be limited to vacating the
probable cause order because mandamus must be tailored to
remedying the specific harm at hand and, at that stage, the harm was
the coercive effect of the probable cause order. Id. at 1072–73 (Rao,
J., concurring); see also U.S. ex rel. Greathouse v. Dern, 289 U.S.
352, 359 (1933) (emphasizing that the “allowance [of mandamus] is
controlled by equitable principles”).
9
from this court to remedy any specific harms arising from the
district court’s actions.” Id. at 1073 (Rao, J., concurring).
This court denied the plaintiffs’ petition for rehearing en
banc, and the writ of mandamus issued.
B.
After we issued the extraordinary writ of mandamus, the
district court concluded it could and should pursue criminal
contempt.6 First, picking up where it left off in the vacated
probable cause order, the district court ordered the parties to
propose next steps in the court’s criminal contempt inquiry,
suggesting the government could “start” by providing “names
of people [it] believe[s] had a role” in the decision to transfer
custody. Nov. 19 Hr’g Tr. at 7–8. While maintaining that
transferring custody of the detainees to El Salvador did not
violate the TRO, the government identified Secretary Noem as
the official responsible for the decision.
Unsatisfied, the district court next ordered the government
to “submit declarations from all individuals involved in the
decision not to halt the transfer of class members out of U.S.
physical custody on March 15 and 16, 2025.” Order Requiring
Declarations at 2 (Nov. 28, 2025). The government complied
by providing declarations from Secretary Noem and senior
counsel at the Department of Justice and Department of
Homeland Security. The declarations confirmed that the
6
The district court reasoned it could proceed because only one judge
found the probable cause order fatally ambiguous. Order Requiring
Declarations at 1 (Nov. 28, 2025); see Nov. 19 Hr’g Tr. at 3. The
court offered no explanation for why proceeding with criminal
contempt was appropriate in light of the serious separation of powers
concerns raised by both judges issuing mandamus and vacating the
probable cause order.
10
Secretary made the decision after receiving legal advice from
those attorneys. At that point, the government had provided
everything the district court had indicated was necessary for the
court to make a criminal contempt referral.
Rather than make a decision regarding referral, the district
court again moved the goalposts. In its latest order, the court
proposed further judicial investigation into whether the
Secretary’s “decision was a willful violation” of the TRO.
Order Scheduling Hearings at 1 (Dec. 8, 2025) (“Hearing
Order”). The district court sought live testimony to investigate
“the bases of the decision to transfer the deportees out of United
States custody.” Id. The order directed the appearance of two
witnesses who were counsel for the government at the time the
TRO issued. The first witness filed a whistleblower complaint
alleging misconduct by Justice Department officials involved
in the litigation, while the second witness continues to serve as
government counsel in the underlying litigation. The order
explicitly permitted plaintiffs’ counsel to participate in
questioning the witnesses.7
Having already identified the responsible official and
provided declarations, the government vigorously protested
any further investigation. The government argued that the
district court already had all the information it needed to make
a referral and that any further investigation would usurp the
Executive’s prosecutorial power. In denying the government’s
motion for reconsideration, the district court explained that
revisiting probable cause was warranted because this court had
vacated the probable cause order and, in the whistleblower
7
The district court vacated the scheduled hearings in response to this
panel’s administrative stay. The district court did not vacate the
Hearing Order, and nothing suggests the hearings will not proceed if
permitted by this court.
11
complaint, former counsel for the government had brought new
evidence to light that implicated the question of willfulness.
Order Denying Reconsideration at 2 (Dec. 12, 2025).
Moreover, the court found the plaintiffs were “uniquely
positioned to assist the Court” in its investigation, while
admitting they could “have no role were an actual contempt
prosecution initiated following a potential referral.” Id.
The government again petitions for a writ of mandamus
terminating the contempt proceedings.8
II.
A writ of mandamus is an “extraordinary remedy”
reserved for “exceptional circumstances amounting to a
judicial usurpation of power, or a clear abuse of discretion.”
Cheney, 542 U.S. at 380 (cleaned up). Mandamus may issue
only if three requirements are met: (1) the petitioner has “no
other adequate means” of relief; (2) there is a “clear and
8
Although the government has styled its petition as one for a writ of
mandamus, its request to halt the district court’s criminal contempt
inquiry is more precisely understood as a petition for a writ of
prohibition. Formally speaking, a “writ of mandamus compels action
not being taken, while a writ of prohibition, as its name suggests,
orders a halt to action.” In re United States, 143 F.4th 411, 423 n.1
(D.C. Cir. 2025); James L. High, A Treatise on Extraordinary Legal
Remedies § 763 (1896) (“[M]andamus is an affirmative remedy,
commanding certain things to be done, while prohibition is negative
in nature and forbids the doing of certain things which ought not to
be done.”). Over time, judicial practice has collapsed the two writs,
and, as a consequence, “[t]he grounds for issuing the two are
virtually identical, and a petitioner need not precisely distinguish
which writ he seeks.” In re United States, 143 F.4th at 423 n.1
(cleaned up). We accordingly follow the parties in describing the
relief the government seeks as a writ of mandamus.
12
indisputable” right to relief; and (3) the court is satisfied that
mandamus is “appropriate under the circumstances.” Id. at
380–81 (cleaned up).
“[S]pecial considerations control” when a mandamus
petition implicates the “Executive Branch’s interests in
maintaining the autonomy of its office and safeguarding the
confidentiality of its communications.” Id. at 385. Moreover,
when evaluating the mandamus factors in a case implicating
the separation of powers, we “must also ask … whether the
District Court’s actions constituted an unwarranted impairment
of another branch in the performance of its constitutional
duties.” Id. at 390. When the “Executive Branch, at its highest
level, is seeking the aid of the courts to protect its constitutional
prerogatives,” separation of powers considerations must
inform our evaluation of entitlement to the writ. Id. at 385.
III.
Disregarding the reasons for the first writ of mandamus,
the district court has now squarely launched a criminal
contempt investigation against a senior Executive Branch
official. The district court previously found that the
government willfully violated the TRO and sought to identify
the responsible official in order to make a referral for criminal
contempt prosecution. The government has attested that
Secretary Noem was the responsible official. Rather than
decide whether to make a referral to the Department of Justice,
the district court has ordered further investigation into high-
level Executive Branch deliberations surrounding the events of
March 15, 2025.
Mandamus is appropriate again to forestall unwarranted
judicial intrusion into Executive Branch decisionmaking
regarding matters of national security. First, the government
has no other means to attain the relief it seeks because the
13
ordinary appellate process cannot adequately redress the harms
created by the district court’s unnecessary investigation.
Second, the government has a clear and indisputable right to
termination of this judicial investigation because it is premised
on an order that is insufficiently clear and specific to sustain a
charge of criminal contempt. Finally, mandamus is the
appropriate remedy to halt the “antagonistic jurisdiction”
assumed by the district court in pursuit of this improper inquest
against the Executive. See Ex parte Peru, 318 U.S. 578, 588
(1943) (cleaned up); Cheney, 542 U.S. at 380–85.
A.
For mandamus to issue, the government must have no
other adequate means to obtain the relief it seeks. The
government now requests an end to the district court’s ongoing
criminal contempt proceedings. The government suggests the
district court may refer Secretary Noem for prosecution if it
believes contempt occurred. Nonetheless, the government
maintains the district court’s ongoing investigation exceeds its
authority and trammels the separation of powers by intruding
on the autonomy and constitutional prerogatives of the
Executive Branch. Because immediate appeal is unavailable
and review at a later stage would come too late to prevent these
constitutional harms, we conclude that no adequate alternative
means are available for the government to obtain relief from
this improper inquest.9
9
We have jurisdiction to issue the writ because this court would have
jurisdiction over an appeal from a criminal contempt conviction.
“Once there has been a proceeding of some kind that might lead to
an appeal, we have jurisdiction to issue writs.” In re United States,
143 F.4th at 422 (cleaned up); see 28 U.S.C. § 1651(a) (providing
that federal courts “may issue all writs necessary or appropriate in
aid of their respective jurisdictions”). The dissent does not dispute
14
As an initial matter, there is no order from which the
government may immediately appeal to obtain review of the
investigation. The Hearing Order is not a final decision. See 28
U.S.C. § 1291 (allowing appeals from “all final decisions” of
federal district courts). Nor does it “finally determine” a
specific claim collateral to the merits of the underlying case as
required for interlocutory appeals under the collateral order
doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949). And it is not immediately appealable as an order
with the “practical effect” of granting or denying an injunction.
Carson v. Am. Brands, Inc., 450 U.S. 79, 83–84 (1981).
Furthermore, at this juncture, the harms of further judicial
investigation cannot be remedied by a later appeal. When the
Executive alleges judicial intrusion into its deliberations,
courts must recognize “the paramount necessity of protecting
the Executive Branch from vexatious litigation.” Cheney, 542
U.S. at 382; see also In re CFTC, 941 F.3d 869, 872 (7th Cir.
2019) (“Cheney holds that mandamus is the appropriate
remedy when a district court has authorized an inquest into the
internal deliberations of the Executive Branch’s senior
officials.”). In other circumstances, we have held that intrusion
into government decisionmaking warranted immediate relief
through mandamus. For instance, in Cobell v. Norton, we
issued the writ to prevent the reappointment of a monitor to
oversee an agency’s compliance with a court order, explaining
that “interference with the internal deliberations” of
government officials was a harm that could not “be remedied
by an appeal from the final judgment.” 334 F.3d 1128, 1139–
40 (D.C. Cir. 2003) (cleaned up). The Seventh Circuit similarly
ruled that mandamus was necessary to terminate a district
this well-established ground for mandamus jurisdiction, a point that
is analytically distinct from the question of whether the government
has an adequate alternative to mandamus. Cf. Dissenting Op. 33–37.
15
court’s investigation into the internal deliberations of a United
States Attorney’s office because a “swift end to this
contretemps” between the court and the Executive was
warranted. In re United States, 398 F.3d 615, 620 (7th Cir.
2005) (per curiam).
Review by mandamus may be particularly appropriate
when a court seeks to investigate Executive Branch
deliberations involving national security, foreign affairs, or
diplomacy, matters constitutionally committed to the political
branches, not the courts. See Cheney, 542 U.S. at 382. An
“embarrass[ment]” to “the executive arm of the Government in
conducting foreign relations” is precisely the kind of harm that
calls for mandamus or prohibition relief because it cannot be
remedied by an eventual appeal. Ex parte Peru, 318 U.S. at
588.
These separation of powers interests are front and center
in this case involving the President’s decisions under the Alien
Enemies Act. The district court proposes to conduct further
factfinding into high-level Executive Branch deliberations
about the implementation of the President’s directive to expel
members of a foreign terrorist organization from the United
States. The President found that members of Tren de Aragua
are “perpetrating … an invasion or predatory incursion,”
“undertaking hostile actions[,] and conducting irregular
warfare against the territory of the United States both directly
and at the direction … of the Maduro regime in Venezuela.”
AEA Proclamation, 90 Fed. Reg. at 13034. Reflecting the
sensitive nature of these determinations, the AEA “largely
precludes judicial review.” J.G.G., 145 S. Ct. at 1005 (citing
Ludecke v. Watkins, 335 U.S. 160, 163–64 (1948)) (cleaned
up).
16
The AEA Proclamation has since been followed by
broader diplomatic and military initiatives against the regime
of Nicolás Maduro, in which United States forces captured
Maduro and brought him to the United States to face
conspiracy charges for narco-terrorism, cocaine trafficking,
and possession of illegal weapons. Against this backdrop of
ongoing military and national security initiatives undertaken by
the Executive Branch, the district court proposes further
probing into the decisionmaking that occurred on March 15,
2025. Such questioning is an “interfer[ence] with a coequal
branch’s ability to discharge its constitutional responsibilities,”
an interference that cannot be remedied by a later appeal.
Cheney, 542 U.S. at 382.
Moreover, the district court continues to expand the scope
of its investigation because it “certainly intend[s] to find out
what happened on” March 15.10 Nov. 19 Hr’g Tr. at 8. Resting
nominally on the need to probe Secretary Noem’s willfulness,
the court’s hearings also would allow plaintiffs’ counsel to
10
The district court justified further hearings on the ground that this
court vacated the probable cause order and so inquiring about the
Secretary’s willfulness was appropriate before making a referral for
prosecution. See Order Denying Reconsideration at 2; Dissenting
Op. 30, 60 (emphasizing this justification). Such justification rings
hollow, however, when the district court has not meaningfully
addressed the arguments supporting the first writ of mandamus. The
district court glossed over whether the TRO had the requisite clarity
to support criminal contempt, see J.G.G., 147 F.4th at 1046 (Katsas,
J., concurring), and whether the pursuit of criminal contempt was
appropriate in these circumstances, see id. at 1071–73 (Rao, J.,
concurring). Despite this court’s admonition to respect the separation
of powers in this sensitive inquiry against senior Executive Branch
officials in the conduct of foreign affairs, the district court not only
chose to squarely pursue criminal contempt but also expanded the
scope of its investigation.
17
question government officials. Hearing Order at 2. Plaintiffs’
counsel are of course not disinterested and in fact are
continuing to seek the return of the expelled plaintiffs through
a habeas corpus class action. See, e.g., J.G.G. v. Trump, 2025
WL 3706685 (D.D.C. Dec. 22, 2025). Interested counsel are
barred from participating in the prosecution of criminal
contempt, as the district court recognized. This prohibition
reflects the risk that interested parties may use the prosecutorial
power for ends other than the “attainment of justice,” such as
“gather[ing] information of use” in other lawsuits. Young v.
U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 790, 806, 814
(1987).
The participation of opposing counsel in the investigation
of criminal contempt is similarly improper in these
circumstances. Enabling interested plaintiffs to wield the sword
of coercive investigation creates opportunities for “private
interest to influence the discharge of public duty.” Id. at 805.
Throughout this contentious litigation, plaintiffs’ counsel have
made clear their desire to probe the decisionmaking of
numerous senior officials at the Department of Justice and the
Department of Homeland Security. See Plaintiffs’ Resp. to
Nov. 24 Order at 1–2 (Nov. 25, 2025) (providing list of nine
“potential witnesses” that “is not intended to be exhaustive”).
The proposed hearings anticipate airing whistleblower
grievances and allowing plaintiffs’ counsel to participate.
These proceedings improperly threaten an open-ended,
freewheeling inquiry into Executive Branch decisionmaking
on matters of national security that implicate ongoing military
and diplomatic initiatives. This judicial intrusion into the
autonomy of a co-equal department cannot be remedied by a
later appeal from a contempt conviction.
18
The government’s imminent harms are amplified by the
fact that the burden imposed by these hearings is wholly
unnecessary for making a referral for criminal contempt. See In
re Clinton, 973 F.3d 106, 113 (D.C. Cir. 2020) (explaining the
“burden” and “complete irrelevance” of further depositions by
former Secretary of State Hillary Clinton demonstrated there
was no adequate alternative to mandamus). When first
initiating proceedings to hold the government in contempt, the
district court concluded there was probable cause that the
government willfully violated the TRO. The district court
explained that the only remaining step before making a referral
for prosecution was to “identify the individual(s) responsible
for the contumacious conduct.” J.G.G., 778 F. Supp. 3d at 54;
see also J.G.G., 147 F.4th at 1074, 1076, 1096 (Pillard, J.,
dissenting) (explaining the district court was seeking only to
identify the individuals responsible for the allegedly
contumacious conduct).
The government has identified Secretary Noem as the
responsible official and also provided further declarations from
other high-ranking officials. The district court now possesses
the information it identified as necessary to make a referral for
prosecution.11 Any further judicial investigation is irrelevant,
11
We do not dispute that a district court may, incidental to its referral
authority, undertake some limited factfinding before making a
referral for criminal contempt. Nevertheless, the district court has
only the power to refer a person for criminal contempt, not the power
to prosecute it. Ignoring this distinction, the dissent maintains further
“responsive factfinding” is proper because the government’s
declarations were inadequate and “contradictory.” Dissenting Op.
77. Yet the dissent provides no evidence for this assertion. The
declarations clearly state that Secretary Noem made the decision on
advice of attorneys other than government trial counsel, and the
representations made by trial counsel on March 15 are wholly
consistent with those declarations. Cf. id. at 31 n.14. Furthermore,
19
which only bolsters the government’s need for mandamus
relief.
The Supreme Court has admonished this court not to wait
for a confrontation between the Executive Branch and the
courts to issue mandamus because “occasions for constitutional
confrontation between the two branches should be avoided
whenever possible.” Cheney, 542 U.S. at 389–90 (cleaned up).
The district court’s improper and unnecessary investigation,
with its shifting scope and justification, intrudes upon the
Executive in a manner for which mandamus is the only
adequate remedy.
B.
We also conclude the government’s right to termination of
these proceedings is “clear and indisputable.” Cheney, 542 U.S.
at 381 (cleaned up). A petitioner satisfies this requirement “if
the challenged order constitutes a clear abuse of discretion.” In
re Clinton, 973 F.3d at 113 (cleaned up). The legal error at the
heart of these criminal contempt proceedings demonstrates
why further investigation by the district court is an abuse of
discretion. Criminal contempt is available only for the violation
of an order that is clear and specific. The TRO did not clearly
and specifically bar the government from transferring plaintiffs
into Salvadoran custody. The TRO therefore cannot support
criminal contempt, and the district court clearly abused its
the dissent characterizes the hearings as mere “inconveniences,” id.
at 38, but nowhere explains why further judicial investigation into
Executive Branch decisionmaking is necessary or appropriate in
these circumstances in which separation of powers concerns are at
their apex, see Cheney, 542 U.S. at 380–85.
20
discretion by launching this inquest into the decisionmaking of
senior Executive Branch officials.
1.
Criminal contempt premised on the violation of a court
order has three elements: “(1) the order must be clear and
reasonably specific; (2) the defendant must have violated the
order; and (3) the violation must have been willful.” United
States v. Rapone, 131 F.3d 188, 192 (D.C. Cir. 1997); see also
3A Wright & Miller, Federal Practice & Procedure § 708 n.6
(4th ed. Sept. 2025 update) (explaining that courts have largely
converged on these elements).
Although the district court has focused its investigation on
willfulness, the legal error in these proceedings centers on the
first element. A clear and specific order is an essential
prerequisite to criminal contempt. “[C]ontempt is a severe
remedy, and should not be resorted to where there is fair ground
of doubt as to the wrongfulness of the defendant’s conduct.”
Calif. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618
(1885). “[B]efore one may be punished for contempt for
violating a court order, the terms of such order should be clear
and specific, and leave no doubt or uncertainty in the minds of
those to whom it is addressed.” In re Brown, 454 F.2d 999,
1008 n.49 (D.C. Cir. 1971) (cleaned up). These limitations
reflect the “fundamental principle that no citizen should
be … subjected to punishment that is not clearly prescribed.”
United States v. Santos, 553 U.S. 507, 514 (2008) (Scalia, J.,
plurality opinion); cf. Taggart v. Lorenzen, 139 S. Ct. 1795,
1802 (2019) (“[B]asic fairness require[s] that those enjoined
receive explicit notice of what conduct is outlawed before
being held in … contempt.”) (cleaned up). For a judicial order
“[t]o serve as a valid basis for [criminal] contempt, the court’s
direction must be clear and unequivocal at the time it is
21
issued.”12 Traub v. United States, 232 F.2d 43, 47 (D.C. Cir.
1955).
In determining whether a judicial order has the requisite
clarity and specificity for criminal contempt, we review the
language de novo, objectively, and without deference to the
district court. See United States v. Young, 107 F.3d 903, 907
(D.C. Cir. 1997); cf. Int’l Ass’n of Machinists & Aerospace
Workers, AFL-CIO v. Eastern Airlines, Inc., 849 F.2d 1481,
1485 (D.C. Cir. 1988) (holding the scope of an injunction is “a
question of law to be determined by the independent judgment”
of the court) (cleaned up). Any ambiguities must be resolved in
the alleged contemnor’s favor. See Ford v. Kammerer, 450
F.2d 279, 280 (3d Cir. 1971) (per curiam) (“The longstanding,
salutary rule in contempt cases is that ambiguities and
omissions in orders redound to the benefit of the person
charged with contempt.”); Project B.A.S.I.C. v. Kemp, 947 F.2d
11, 16 (1st Cir. 1991) (same).
2.
The district court is investigating alleged criminal
contempt based on the government’s transfer of the plaintiffs
to Salvadoran custody. Because the TRO did not clearly or
12
The dissent agrees that “[c]ontempt will only lie ‘if the putative
contemnor has violated an order that is clear and unambiguous.’”
Dissenting Op. 66–67 (citing United States v. NYNEX Corp., 8 F.3d
52, 54–55 (D.C. Cir. 1993)). But the dissent provides no support for
its remarkable suggestion that an order must have greater clarity to
support civil contempt than criminal contempt. Id. at 65 n.22.
22
specifically prohibit the transfer of custody, it cannot support
the ongoing criminal contempt investigation.13
The TRO’s restriction provided in full: “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.” In its first contempt
order, the district court explained that “[t]he fair reading of the
TRO is that it only prevented class members’ transfer from
American into foreign custody.” J.G.G., 778 F. Supp. 3d at 50
(emphasis added). Following our first writ of mandamus, the
district court continues to interpret the TRO as prohibiting the
government from “relinquish[ing] physical custody of the
men.” J.G.G., 2025 WL 3706685, at *2. The alleged contempt
therefore turns entirely on whether transfer of custody was
barred by the TRO.
“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.” Young, 107 F.3d at 907. The intentions and unstated
purposes of the district court cannot provide the basis for
criminal contempt.
Starting with the text of the order, it said nothing at all
about transferring the plaintiffs out of the custody of the United
States. There was no specific directive as to what the
government had to do with the plaintiffs who were already
outside of the territorial United States. The district court
maintains the TRO prohibited the government from
13
In reviewing the first contempt order, Judge Katsas analyzed the
lack of clarity in the TRO, and we draw on that analysis here. See
J.G.G., 147 F.4th at 1051–57 (Katsas, J., concurring).
23
relinquishing custody, but the TRO says nothing about custody.
Criminal contempt cannot lie for transferring custody when the
TRO was entirely “silent” as to that requirement. See Broderick
v. Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006).
Despite the absence of an explicit directive against
transferring custody, the district court insists that the order
barring “removing” the plaintiffs somehow also prohibited
transferring them out of United States custody, particularly
when understood in light of the emergency hearing. J.G.G., 778
F. Supp. 3d at 42–47. An objective interpretation of the TRO’s
text and surrounding circumstances, however, fails to provide
a clear directive not to transfer custody of the plaintiffs.
To begin with, the ordinary meaning of “remove” refers to
a change in territorial location, not custody. Both legal and lay
dictionaries confirm that “removing” an individual means to
move him from one place to another. See, e.g., Removal,
Black’s Law Dictionary (12th ed. 2024) (“The transfer or
moving of a person or thing from one location, position, or
residence to another.”); Remove, Merriam Webster’s
Collegiate Dictionary (12th ed. 2025) (“[T]o change the
location, position, station, or residence of.”); Remove, Oxford
English Dictionary (2d ed. 1989) (“To take away, withdraw,
from a place, person, etc.”); see also J.G.G., 147 F.4th at 1052
(Katsas, J., concurring).
The legal context of this case, involving the expulsion of
aliens pursuant to the President’s AEA Proclamation, similarly
confirms the understanding that “removing” refers to removal
from United States territory. When the President faces an
“invasion or predatory incursion … against the territory of the
United States” and “makes public proclamation of the event,”
the AEA authorizes him “to provide for the removal of” enemy
aliens. 50 U.S.C. § 21. Under certain circumstances, the AEA
24
also authorizes federal courts to order covered aliens “be
removed out of the territory of the United States.” Id. § 23.
Upon an order by the President or a court, marshals must
“cause[] a removal of such alien[s] out of the territory of the
United States.” Id. § 24. Removal under the AEA, which is
what these detainees were facing, means removal from United
States territory.
Moreover, the TRO also explicitly referenced other types
of removal under immigration law by enjoining the
government from “removing members of [the] class (not
otherwise subject to removal).” The phrase “not otherwise
subject to removal” refers to other statutory removal
authorities, which in turn use “removal” in the territorial sense.
For instance, the Immigration and Nationality Act (“INA”), the
statutory authority for most deportations, incorporates a
territorial conception of removal. See, e.g., 8 U.S.C. § 1101(g)
(“[A]ny alien ordered deported or removed ... who has left the
United States, shall be considered to have been deported or
removed in pursuance of law, irrespective of … the place to
which he departed.”). In the immigration context, to “remove”
an alien means to expel an alien from the physical territory of
the United States.
The TRO prohibited “removing” detainees “pursuant to
the [AEA] Proclamation,” a directive that government officials
would naturally understand as prohibiting the removal of
detainees from the territorial United States.14 Because the two
14
No one doubts the TRO provided a clear directive not to remove
the plaintiffs from United States territory, and in fact, after the TRO
issued, the government did not remove any additional detainees
pursuant to the AEA. J.G.G., 778 F. Supp. 3d at 34. The district
court’s criminal contempt inquiry does not (and cannot) rest on the
government’s removal of the detainees from the territorial United
States because that occurred before the TRO issued.
25
planes were outside United States airspace when the TRO
issued, no further “removal” was possible.15 And the TRO
provided no directives whatsoever with respect to the plaintiffs
outside the United States. Nothing in the TRO clearly and
specifically, much less unequivocally, prohibited the transfer
of detainees to the custody of El Salvador.
The “objective circumstances surrounding the issuance of
the order” largely confirm the plain meaning of the TRO. See
Young, 107 F.3d at 907. Both the district court’s first order, the
one entered in the morning as to the named plaintiffs, and the
relief the plaintiffs requested confirm that “removal” refers to
removal from the territorial United States, as distinct from a
transfer of custody. While some statements made at the hearing
cut the other way, nothing in the hearing indicated that the
district court’s prohibition on removal clearly and specifically
included a prohibition against transfer of custody.
Presented with a motion for emergency relief on March 15,
the district court’s first temporary restraining order expressly
linked removal to the territorial United States, stating the
government “shall not remove any of the individual Plaintiffs
from the United States for 14 days.” First Minute Order
(emphasis added). Later that day, the district court issued the
TRO underlying the current contempt dispute, which barred the
government “from removing” members of the provisionally
certified class. The most coherent understanding of the TRO in
context is that both orders barred removal of detainees from the
15
Our dissenting colleague does not dispute the ordinary meaning of
“removal” or the definition of “removal” in the “legal context” of
this case. Dissenting Op. 71. This concession is fatal to the dissent’s
attempts to redefine “removal” in light of the TRO’s broader
purposes because criminal contempt requires the violation of an
“order that is clear and unambiguous.” Id. at 66 (cleaned up).
26
territorial United States, even if the later TRO did not include
the explicit “from the United States” qualifier. As Judge Katsas
explained, an Executive Branch official reading the orders
would not understand “removing under the second TRO [to
mean] something different from remove under the first.”
J.G.G., 147 F.4th at 1054 (Katsas, J., concurring). And
certainly nothing in the TRO indicated that, by prohibiting
“removal,” the district court not only barred removal from the
territorial United States but also sub silentio prohibited the
transfer of custody.
Furthermore, the relief the plaintiffs requested reinforces
the natural reading that “removal” referred to expulsion from
United States territory. The plaintiffs sought two distinct
remedies. First, they proposed an order instructing the
government “not to remove Plaintiffs … from the United
States pursuant to the Alien Enemies Act.” Proposed TRO at 1
(Mar. 15, 2025). Second, the plaintiffs requested an order
providing that “insofar as any Plaintiffs … have already been
removed from the United States pursuant to the Alien Enemies
Act, but remain within the custody, control, and or/jurisdiction
of the United States, such individuals shall be returned to the
United States.” Id. at 2 (emphases added). The plaintiffs’
requested relief explicitly distinguished between “remov[al]”
from the United States under the AEA and “return[]” to the
United States. Importantly, the plaintiffs did not request an
order requiring the government to retain custody.
Faced with the plaintiffs’ specific requests, the district
court’s written TRO enjoined only removal and said nothing
with respect to “returning” detainees or preventing the transfer
of custody to El Salvador. Reading the TRO against the
backdrop of the plaintiffs’ requested remedies further confirms
that when the district court barred “removing” class members,
it referred to removal from the territorial United States and
27
refrained from ordering the government to do anything with
regard to detainees already removed.
To be sure, statements made at the March 15, 2025,
hearing provide some support for the idea that the district court
was contemplating that any detainees who were removed
would have to be returned to the United States. The district
court told government counsel 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.” Mar. 15 Hr’g Tr. at 43. It added,
“[h]owever 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.” Id. While these
oral statements were perhaps suggestive of some custodial
responsibility, they did not clearly and specifically require the
government to retain custody. Nor did the district court’s oral
statements clearly prohibit the transfer of custody or connect
“removing” the plaintiffs to maintaining custody over them.16
Moreover, these oral statements were of limited value in
light of the district court’s assurance that it would “issue a
minute order memorializing this so you don’t have to race to
write it down.” Mar. 15 Hr’g Tr. at 42; see id. at 46 (district
court repeating to counsel that it “will issue a minute order
memorializing all of this”). And other remarks in the same
hearing undercut the district court’s most suggestive
statements. For instance, the district court stated that “once [the
detainees] are out of the country, I’m not sure what I can do
16
Our dissenting colleague proposes a novel standard by which we
should defer to the district court’s interpretation of the TRO and
allow the district court to expand the order’s reach by invoking
broader unstated purposes. Dissenting Op. 73–76. Such a deferential
approach would be unprecedented in the context of criminal
contempt and at odds with basic principles underlying criminal
liability. See supra 20–21.
28
there.” Id. at 36. The court’s doubt as to this authority is
reflected in the TRO, which in fact did not order anything with
respect to detainees already out of the country.
When a district court makes oral statements that support
two plausible interpretations of its order, the order will often be
insufficiently clear to support criminal contempt. See Traub,
232 F.2d at 47 (holding order lacked requisite clarity for
criminal contempt when “[a]t the hearing in which the direction
was issued, the court made statements pointing both ways”). A
government official seeking to understand the obligations
imposed by the TRO would look to the written order as the
district court directed, especially when the hearing transcript
was not available until the next day. And that written order
prohibited only removal from the territorial United States.
In sum, the TRO did not clearly or specifically prohibit the
transfer of plaintiffs. Therefore, criminal contempt cannot lie
for their transfer into Salvadoran custody.17
***
The district court has launched an intrusive criminal
contempt investigation into whether the government acted
willfully when it transferred suspected Tren de Aragua
members to Salvadoran custody. But the end of this
investigation is a legal dead end. The TRO simply said nothing
about transferring custody, nor did the district court prohibit
the transfer of custody in oral statements. In our constitutional
system of government, criminal liability cannot turn on the
unstated intentions (or post hoc assertions) of a district court
judge. The pursuit of this improper investigation is a clear
17
Because this ground is sufficient for mandamus, we do not address
the government’s other arguments that its right to relief is clear and
indisputable. Cf. Dissenting Op. 42–63.
29
abuse of discretion that entitles the government to a writ of
mandamus.
C.
Finally, in exercising our discretion to issue mandamus,
we are “satisfied that the writ is appropriate under the
circumstances.” Cheney, 542 U.S. at 381. Although mandamus
must be reserved for extraordinary circumstances, it is an
important tool to “forestall future error” in lower courts.
Colonial Times, Inc. v. Gasch, 509 F.2d 517, 525 (D.C. Cir.
1975). The ordinary appellate process suffices to correct
ordinary errors, but mandamus is appropriate when courts
assume an “antagonistic jurisdiction.” Ex parte Peru, 318 U.S.
at 588 (cleaned up).
The writ has historically provided a mechanism for
accountability and supervision within the Judiciary. In cases
implicating the separation of powers, mandamus has been used
to prevent lower courts from intruding into the province of the
Executive through what amounts to a “judicial usurpation of
power.” Cheney, 542 U.S. at 390 (cleaned up); see id. at 389–
90 (recognizing interbranch confrontations “should be avoided
whenever possible”). By keeping lower courts within their
lawful sphere, mandamus may also serve to protect the
independence of the Judiciary.
The district court’s widening and unnecessary inquiry into
Executive Branch decisionmaking, conducted on the erroneous
premise that the TRO is sufficiently clear and specific, is at
least a clear abuse of discretion. Cf. Ex parte New York, 256
U.S. 490, 503 (1921) (“The want of authority in the District
Court to entertain these proceedings … is so clear … that
instead of permitting them to run their slow course to final
decree, with inevitably futile result, the writ of prohibition
should be issued.”). Mandamus is appropriate to “halt … the
30
inquest” and relieve the Executive Branch of this improper
intrusion into its constitutional prerogatives. In re United
States, 398 F.3d at 617.
The Supreme Court has long recognized mandamus may
be used to prevent judicial actions that would “threaten the
separation of powers by embarrassing the executive arm of the
Government” or that would interfere with the Executive
Branch’s conduct of its internal affairs. Cheney, 542 U.S. at
381 (cleaned up); see also Ex parte Peru, 318 U.S. at 587
(holding mandamus may be appropriate when “the delay and
inconvenience of a prolonged litigation” hinders “action of the
political arm of the Government taken within its appropriate
sphere”); Cobell, 334 F.3d at 1139–40 (finding mandamus
appropriate when a district court “interfer[ed] with the internal
deliberations” of an agency). More specifically, because the
power to punish contempt is uniquely “liable to abuse,” Ex
parte Terry, 128 U.S. 289, 313 (1888), courts have issued
mandamus to halt improper contempt proceedings directed
against Executive Branch officials, see In re Sealed Case No.
98-3077, 151 F.3d 1059, 1065–66 (D.C. Cir. 1998) (per
curiam); In re United States, 398 F.3d at 617.
At this stage of the proceedings, the district court has
received the information it sought from the government
regarding the official responsible for transferring the detainees
to Salvadoran custody. By continuing to selectively probe
whether Secretary Noem acted willfully, the district court is
encroaching on the prosecutorial role. This inquest pushes the
boundaries of what is permissible under Rule 42, which
requires that contempt committed outside the court’s presence
“be prosecuted by an attorney for the government.” Fed. R.
Crim. P. 42(a)(2). “[W]hen a prima facie case of criminal
contempt has been made out, and the contempt is not
committed in the judge’s presence[,] … the judge must turn the
31
matter over to a prosecutor.” In re United States, 398 F.3d at
618. This comports with the Constitution’s allocation of the
prosecution power to the politically accountable Executive. See
Trump v. United States, 144 S. Ct. 2312, 2335 (2024)
(“Investigative and prosecutorial decisionmaking is the special
province of the Executive Branch.”) (cleaned up); United
States v. Texas, 143 S. Ct. 1964, 1971 (2023) (“The Executive
Branch—not the Judiciary—makes arrests and prosecutes
offenses on behalf of the United States.”). The government has
acknowledged the district court could refer the alleged
contemnor for prosecution by the Department of Justice.
Instead, however, the district court has embarked on further
judicial factfinding and investigation, all in service of
vindicating a TRO that lacks the clarity and specificity to
support criminal contempt.
Indeed, this court has granted mandamus for far less. We
held mandamus was appropriate in a Freedom of Information
Act suit. In In re Clinton, we halted discovery seeking further
information from former Secretary of State Hillary Clinton
relating to the attack on the American Embassy in Benghazi.
973 F.3d at 109–11. We emphasized that “[t]he mere suspicion
of bad faith on the part of the government cannot be used as a
dragnet to authorize voluminous discovery that is irrelevant to
the remaining issues in a case.” Id. at 114. Because the “topics
[were] completely attenuated from any relevant issue,” further
discovery into Secretary Clinton’s motives had to be stopped.
Id. at 115–16. We concluded the demanding standards for
mandamus were satisfied even without taking account of the
potential separation of powers concerns raised by civil
discovery targeting a former Secretary of State. See id. at 113.
Mandamus is all the more appropriate here, when the
district court is expanding its investigation of criminal
contempt in a national security context squarely within the
32
purview of the Executive. At this stage of the proceedings, this
improper inquest is doubly irrelevant. First, the district court
already possesses all the information it had represented was
necessary, so further investigation is irrelevant to the only
decision before the district court, that is, whether to make a
referral for criminal contempt. Second, any referral for
prosecution faces a dead end because the TRO did not clearly
and specifically say anything about transferring custody of the
detainees and therefore cannot support a charge of criminal
contempt.
As these shifting and expanding proceedings demonstrate,
the district court has assumed an improper jurisdiction
antagonistic to the Executive Branch. Mandamus is appropriate
to halt the district court’s inquest.
***
For the foregoing reasons, we issue the writ of mandamus
to confine the district court to its lawful jurisdiction and
terminate these criminal contempt proceedings.
So ordered.
WALKER, Circuit Judge, concurring:
In an oral order, the district court limited what the
Government could do with certain aliens covered by a recent
presidential proclamation. Some of the covered individuals
were inside the United States, and others were on planes, in
flight, outside U.S. air space. Less than an hour after the oral
order, the district court issued a written order that prohibited
the removal of certain aliens currently in the United States.
But unlike the oral order, the written order did not protect
anyone already removed from U.S. territory. It prohibited
only future removals and said nothing about those already
removed.
After the written order, the Government took actions
that the oral order had arguably prohibited (and that the
written order did not prohibit). So if the effect of the
(broader) oral order survived the (narrower) written order,
the Government’s conduct would raise a host of difficult
questions. But before issuing its oral order, the district court
said, “I will issue a minute order memorializing this so
you don’t have to race to write it down.” 1
In my view, the district court’s “you don’t have to . . .
write it down” line simplifies this otherwise complicated
case because it made the written order supersede the oral
order. The Government did not violate the oral order while
it was in effect. And at no point did the Government violate
the written order that superseded it.
I join Judge Rao’s opinion in full. However, I write
separately to emphasize just one point: the importance of the
district court’s “you don’t have to . . . write it down” line.
1
March 15 Hearing Transcript at 42:22-23, ECF No. 20. Record
citations refer to the district court proceedings, J.G.G. v. Trump,
No. 25-cv-766 (D.D.C. Mar. 15, 2025).
2
* * *
On February 20, 2025, the Secretary of State designated
Tren de Aragua as a Foreign Terrorist Organization. 2 Then,
on March 14, the President issued a Proclamation invoking
the Alien Enemies Act.3 It directed officials to “remove”
certain members of Tren de Aragua from the United States.4
The next day, Saturday March 15, five plaintiffs sued in
the U.S. District Court for the District of Columbia to
challenge the Proclamation.5
The district court needed to make a quick decision. The
facts on the ground were changing, jurisdiction was unclear,
and the merits depended on the meaning of a statute from the
1700s that hadn’t been invoked in the past 75 years. 6 I do
not envy the position of any judge facing such time pressure
to make hard and high-stakes legal decisions. Fortunately,
the trial judge assigned to this case had more than two
decades of judicial experience, with a widely respected
record of dispassionate decisionmaking.
2
Foreign Terrorist Organization Designations, 90 Fed. Reg.
10030 (Feb. 20, 2025).
3
Invocation of the Alien Enemies Act Regarding the Invasion of
the United States by Tren de Aragua, 90 Fed. Reg. 13033 (Mar.
20, 2025).
4
Id. at 13034.
5
Complaint, ECF No. 1.
6
See Hearing Transcript at 11:8-13:6 (discussing uncertain facts
and jurisdiction); W.M.M. v. Trump, 154 F.4th 207, 215 (5th Cir.)
(discussing prior invocations), reh’g en banc granted, opinion
vacated, 154 F.4th 319 (5th Cir. 2025).
3
The district court issued an ex parte temporary
restraining order the morning that the case was filed. The
order did not cover the proposed class but instead was
limited to the handful of individual Plaintiffs. It ordered the
Government not to “remove any of the individual Plaintiffs
from the United States for 14 days.”7
The district court also scheduled a hearing by
videoconference for later in the day.8 At that hearing, the
district court was informed that two planes carrying
members of the proposed class — but not the “individual
Plaintiffs”9 — had departed for El Salvador.10 Then, at 6:45
P.M., with the two departed planes already out of U.S.
territory, the court provisionally certified a class of
“noncitizens in U.S. custody who are subject to the [March
15] proclamation.”11 The court also announced that a
temporary restraining order was appropriate.12
7
Minute Order 1, Mar. 15, 2025.
8
Minute Order 2, Mar. 15, 2025.
9
Minute Order 1, Mar. 15, 2025.
10
Hearing Transcript at 17:22-25 (“MR. GELERNT: We
understand that two flights went to El Salvador this afternoon; one
very recently, and then another flight is scheduled for 6:23, we
believe, to Honduras, but we are not entirely sure.”).
In a later decision, the district court concluded that “all evidence
suggests” the two flights to El Salvador took off around 5:25 PM
and 5:45 P.M. J.G.G. v. Trump, 778 F. Supp. 3d 24, 33 (D.D.C.),
mandamus granted, order vacated, 147 F.4th 1044 (D.C. Cir.
2025).
11
Hearing Transcript at 23:3; 42:18-21; see J.G.G., 778 F. Supp.
3d at 34.
12
Hearing Transcript at 42:16-17.
4
Before describing the temporary restraining order, the
district court said, “I will issue a minute order
memorializing this so you don’t have to race to write it
down.”13 In other words — and for good reason on a
Saturday evening emergency Zoom hearing about
momentous and unprecedented legal questions — the
district court told the Government that a forthcoming written
minute order, rather than any extemporaneous remarks,
would tell everyone everything they needed to know about
what they were required to do.
The district court then spoke directly to the
Government’s attorney:
[T]he first point is that . . . you 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 [dis]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.14
After issuing that oral order, the district court again
assured the attorneys, “I will issue a minute order
memorializing all of this.”15 Then at 6:53 P.M., the hearing
concluded.16
13
Id. at 42:22-23.
14
Id. at 43:11-19.
15
Id. at 46:9-10.
16
Id. at 47:19.
5
At 7:25 P.M., the district court issued its written minute
order.17 The order read as follows:
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. 18
Unlike the oral order, the written order made no mention of
returning anyone to the United States or keeping custody
over anyone already removed from the country. 19 In fact, it
did not say anything about anyone already removed. It
enjoined the Government only “from removing” people who
had not already been removed.
* * *
To see why the Government did not violate the oral
order or the written order, start with the oral order. While
that order was in effect, the Government complied with it.
Then the written order superseded it. 20
17
See J.G.G., 778 F. Supp. 3d at 42.
18
Minute Order 3, Mar. 15, 2025 (emphasis added).
19
See Majority Op. at 26-28.
20
I agree with the dissent that the oral order required compliance
before the written order was issued. Cf. Dissenting Op. at 21-22
n.8 (the district court said that “you shall inform your clients of
this immediately” and that this “is something that you need to
make sure is complied with immediately,” and the Government
counsel said that “the Government is now under a TRO”) (cleaned
up). But the dissent does not believe that the district court
“notified the parties that a later written order would supersede its
present oral order.” Id. at 69 n.24. On that narrow, case-specific,
factual question, we disagree.
6
Some accounts would suggest the Government violated
the oral order the moment it failed to “turn the planes
around.”21 After all, during the period the oral order was in
effect, the planes were not “returned to the United States”
before reaching El Salvador. Does that mean the
Government violated the district court’s oral order? No.
Contrary to the predictably inaccurate commentary that
plagues our better-first-than-accurate media era, the district
court did not order the Government to turn the planes
around, and today’s dissent does not argue otherwise.
Rather, the district court said one option was to turn a plane
around immediately and another equally acceptable option
was simply “not [dis]embarking anyone on the plane” when
it reached El Salvador.
From 6:45 P.M. to 7:25 P.M. — from the time of the
oral order to the time of the written order — the Government
did “not [dis]embark[] anyone on [a] plane.” So for that
period, the Government did not violate the oral order. That
much is undisputed.
* * *
Now consider the written order. At 7:25 P.M., it
superseded the oral order. That is so because of the unique
21
See, e.g., Katherine Faulders, Trump administration ignores
judge’s order to turn deportation planes around: Sources, ABC
News (March 16, 2025, at 18:54 ET), https://perma.cc/393Y-
HUJC (“The verbal order . . . explicitly told the government to
turn around any aircraft that had already departed the country if it
was still in the air.”); A Judge Ordered Deportation Planes to
Turn Around. The White House Didn’t Listen., N.Y. Times
(March 17, 2025), https://perma.cc/GC7T-9P4B (“If any planes
were in the air, the judge said, they should turn back.”).
7
facts of this case. The district court told the lawyers they had
no need to “write [the oral order] down,” and that
instruction makes sense only if the written minute order
could be expected to say everything necessary.
Since the Government complied with the oral order at
least until the court issued the written order — no one has
said otherwise — and since the written order superseded the
oral order, the important question is: What did the
Government do to people covered by the written order once
that order was issued?
The answer appears to be: Nothing. As the majority
opinion explains, the written order covered only people who
had not already been removed from the United States.22 It
prohibited the Government “from removing members of
[the] class . . . pursuant to the Proclamation,” 23 and you
cannot remove people who have already been removed.
There is no allegation in this case that the Government
used the Proclamation to remove anyone not already
removed when the written order was issued. So as far as we
know, the class members not already removed by then
started the day in Texas, ended the day in Texas, and (a year
later) still have not been “remov[ed] . . . pursuant to the
Proclamation” — even if the Government would very much
like to have long-ago removed them.24
22
Majority Op. at 26-28.
23
Minute Order 3.
24
See A.A.R.P. v. Trump, 145 S. Ct. 1364, 1366 (2025) (“The
detainees allege that . . . putative class members were served
8
That is enough to resolve this case. From the time
between the oral order and the written order, the Government
did not violate the oral order. Then, once the written order
superseded it, the Government did not violate the written
order. The upshot is that because the Government didn’t
violate an order, there are no witnesses to subpoena, no
reasons to prosecute, and no people to hold in contempt.
* * *
Much of the ink spilled over this case concerns a
question I have not yet addressed because the question is
completely irrelevant to whether the Government can be
prosecuted for contempt: What did the Government do to the
people who were on the planes when the district court issued
the oral and written orders?
At the time of the oral order — and later at the time of
the written order — they were on planes, beyond U.S.
airspace, in U.S. custody, and heading to Central America.25
When their planes reached El Salvador, after the written
notices of AEA removal and told that they would be removed
‘tonight or tomorrow.’”).
The district court referred to a “third flight” which “reportedly
took off” after the written order issued in a previous opinion. See
J.G.G., 778 F. Supp. 3d at 34. But it also noted in that opinion
that “the Government maintains that all aboard were removed
under authorities other than the Proclamation.” Id. And in the
orders under consideration in this case, the district court referred
only to decisions about planes that had already departed at the time
of the order. See Order (Nov. 28, 2025), ECF No. 196; Order
(Dec. 8, 2025), ECF No. 200.
25
See Majority Op. at 24-25.
9
order, the Government transferred them to Salvadoran
custody.26
Why do I say that is irrelevant? Because they had
already been removed when the written order was issued.
Which means the written order didn’t cover them. Which in
turn means their transfer to Salvadoran custody didn’t
violate the written order (which, again, had superseded the
oral order).
If the written order had been violated — or perhaps
even if the oral order had been violated before it was
superseded by the written order — the Government’s
conduct would raise a host of important questions. Those
questions and others have been ably discussed by the district
court, the Government, the plaintiffs, enough amici to field
a football team, everyone on last year’s panel, several judges
concurring or dissenting from the denial of en banc review,
the author of today’s majority opinion, and our dissenting
colleague.27
Many of those questions, however, are not properly
presented. That’s because the Government did “not
[dis]embark[] anyone on [a] plane”28 while the oral order
was in effect. Nor has it “remov[ed] members of [the] class
(not otherwise subject to removal) pursuant to the
Proclamation”29 since the written order was issued.
26
See id. at 6.
27
See J.G.G. v. Trump, 147 F.4th 1044 (D.C. Cir. 2025); J.G.G.
v. Trump, No. 25-5124, 2025 WL 3198891 (D.C. Cir. Nov. 14,
2025) (denying petition for en banc review).
28
Hearing Transcript at 43:17.
29
Minute Order 3; see also Majority Op. at 24 n.14 (Government
compliance).
10
Reaching that conclusion is hardly a “Hail Mary.”30
And at least for me, it does not depend on the (correct)
assumptions and (correctly applied) canons of interpretation
to which the dissent objects.31 Nor does it require us to
decide whether the oral version of the order or the written
version of the order would control absent the district court’s
instruction to the Government: “you don’t have to . . . write
it down.”32
Finally, a quick note about the consequences of today’s
decision for any future cases: There are none. Though the
dissent disagrees with the majority’s interpretation of the
district court’s order, that disagreement does not turn on
legal questions with enduring relevance for our
jurisprudence. It turns instead on facts unique to this case,
including the text of the written order and the district court’s
guarantee that the written order, once issued, would be the
only order the Government needed to obey (or even “to
write . . . down”).33
30
Cf. Dissenting Op. at 63 (“the majority chooses the
Government’s Hail Mary pass”).
31
Cf. id. at 70-71.
32
Cf. id. at 68-70, 68 n.23.
33
Hearing Transcript 42:23.
CHILDS, Circuit Judge, dissenting: Contempt of court is a
public offense, and the fate of our democratic republic will
depend on whether we treat it as such. In the many forms in
which it can be committed, contempt degrades the power that
the People, through their Constitution and Congress, gave the
federal courts. Without the contempt power, the rule of law is
an illusion, a theory that stands upon shifting sands. For
contempt offends not only the authority of whichever judge has
been subjected to such incursions, but it also offends our
system of governance. Addressing contempt is, therefore, a
responsibility that is part and parcel of the court’s duty to
interpret and apply the laws of the governed.
And yet, a court’s inquiry into contempt is a responsibility
that can be just as difficult as it is sacred. The complexity of
this task explains why, for some contempt proceedings,
factfinding is required for a trial court to fairly identify
contemnors, their contumacious acts, and then hold them
accountable. Thus, we cannot judge the early actions of a trial
court in such a proceeding heavy-handedly, for contempt of
court is not addressed for the district court’s vanity; it is done
to preserve and enforce our law. As a court of review, we
preserve the sanctity of these proceedings by reviewing
judgments of contempt with an eye towards vindicating the
dignity and authority of the courts while simultaneously
respecting the individual liberties and rights of contemnors.
Here, unfortunately, we have overstepped in adjudicating this
balance of interests.
Today, we are not reviewing a judgment of contempt made
by the trial court, nor are we even reviewing a referral for a
contempt prosecution. Instead, we examine an interlocutory
order from a district court that, irrespective of its rulings in the
underlying case, is just trying to understand the events of a
single weekend in March, including the actions which may
have led to the willful violation of one of its orders. This is
important because the district court’s earlier attempt to identify
2
potential contemnors, make findings of fact, and address
alleged contumacious behavior was rejected by an earlier panel
of this court. In obedience to that earlier panel’s writ of
mandamus—which vacated its probable cause order and
factual findings—the district court dutifully and carefully
started on a clean slate, calling a hearing for testimony about
the actions of the alleged contemnors. Unsurprisingly,
testimony is a hallmark of the factual inquiry that judges of this
court had identified as a proper step before initiating criminal
contempt proceedings.
Instead of properly rejecting the current petition to end the
district court’s factual inquiry, the majority has determined that
no further facts are needed because, as a matter of law, the
alleged contemnors just cannot have committed contempt. In
so doing, the majority has stymied the district court’s inherent
and statutory powers and done so in a way that will affect not
only these contempt proceedings but will also echo in future
proceedings against all litigants. Now, any litigant can argue,
based on their preferred interpretation of a court’s order, that
they did not commit contempt before contempt findings are
even made. And now, in any challenge where one may wave
the wand of separation of powers, the Government knows it can
petition this court for mandamus to relieve it from such
proceedings. I cannot agree with an approach that sets such
precedent.
Issuing the writ of mandamus against a lower court judge
is a drastic and extraordinary remedy. Ex parte Fahey, 332
U.S. 258, 259 (1947). It has “the unfortunate consequence of
making the judge a litigant, obliged to obtain personal counsel
or to leave his defense to one of the litigants before him.” Id.
at 260. For this reason, in scenarios like this one we must be
“unwilling to utilize [the writ] as a substitute for appeal.” Id.
Consequently, the Government owes this court a strong basis
3
to justify the slash of the writ’s sword. Instead, it has given us
a pittance, so much so that the majority largely declines to rely
on the Government’s arguments for this relief.
I find nothing in the petition before us to warrant the use
of mandamus, especially at this interlocutory stage. The
Government has failed to show that it has no other form of
relief available to it. The Government has not shown that it has
a clear and indisputable right to relief under controlling law,
despite advancing several theories. Nor has the Government
shown that mandamus is the appropriate relief for this court to
provide under the circumstances before us. As a result, we
should not grant a petition for a writ of mandamus here. And
yet, the majority has done so.
There is no question that there could be much to fear in a
factual inquiry about the actions of potential contemnors who
may have defied a court order. However, that does not mean
that this court must intervene to end a criminal case before it
begins, even for the Executive Branch. Accordingly, I must
respectfully dissent.
I.
A.
1.
The singularity of the powers contained in our common
law writs cannot be overstated. The discussion the writs
produce about the propriety and bounds of a superior court’s
power to command the actions of a person, agency, or lower
court, is more than just an element of our constitutional order:
it is the basis of our understanding of judicial power and
judicial review. Thus, when the writ power is exercised, it is
critical to reflect on its extreme nature, its history, and the
4
evolution of its usage in the United States. This is especially
true in this case where this court has now not once, but twice,
used the writ to demand that the district court comply with this
court’s judgment about the district court’s inherent authority. 1
Only when placed in a historical context may we properly
determine whether it is necessary and appropriate to employ
the mandamus power here.
What history shows us is that the United States departed
from the previous English tradition of using mandamus as a
prerogative power. The federal judiciary’s use of the writ is
instead narrow and tailored to fit extreme circumstances.
Moreover, the tradition of the writ of mandamus in the federal
reports reflects other ways this power notably diverged from its
common-law roots. It would behoove us to not use the writ
hastily and thus return to what was the tradition of antiquity.
In thirteenth century England, the writ of mandamus began
as essentially an executive action, meaning that the courts
relied on the authority of the King to command the recipient of
the writ to act in a certain way. Chester J. Antieau, 1 The
1
The Government again requests a writ of mandamus rather than a
more appropriate writ for the relief it seeks. A writ of mandamus is
a plea for a command, asking a court to require a governmental body,
in this case a lower court, to do something as justice requires.
Comm’r of Pats. v. Whiteley, 71 U.S. 522, 526 (1866). Whereas a
writ of prohibition, of course, prohibits a court from undertaking a
certain action. Smith v. Whitney, 116 U.S. 167, 176 (1886). We have
described these two writs as “counterpart[s]” to one another in that
they are “used together by a higher court to bring a lower court back
within its jurisdiction.” Morrow v. District of Columbia, 417 F.2d
728, 733 (D.C. Cir. 1969). However, I will not amend the
Government’s petition, as the majority does, by converting this
petition for mandamus into a petition for a writ of prohibition, even
if there are similarities between the standards for granting these
writs.
5
Practice of Extraordinary Remedies: Habeas Corpus and the
Other Common Law Writs vol. 1, bk. 2, pt. 1, § 2.00, at 291
(1987); see also id. (“The King’s prerogative was a part of the
common law of England, and mandamus was a high
prerogative writ.”). In those times, the writ of mandamus was
issued in the name of the King from the Court of King’s Bench,
a common-law court. Id. (explaining this process and how it
was used in replacement of personal commands made by the
King). Later, the writ of mandamus encompassed a broader
spectrum of commands in the public good. See James Bagg’s
Case (1615) 77 Eng. Rep. 1271, 1277–78 (KB) (Lord Chief
Justice Edward Coke using mandamus to direct a mayor and
council to restore James Bagg to his municipal office). The
English mandamus jurisprudence was then imposed and
maintained in the thirteen colonies and was then replicated in
both state and federal law.
However, crossing the midnight blue of the Atlantic and
then shrugging off the yokes of the King changed both the
source and the scope of the judicial power to issue the writ.
These changes involved more than converting the prerogative
writs into injunctive orders provided by statute or implied by
the same. Kendall v. United States ex rel. Stokes, 37 U.S. 524,
620–22 (1838) (marking this evolution); id. at 622 (Mandamus
“is not exercised, as in England, by the king’s bench, as having
a general supervising power over inferior courts.”).
In the United States, mandamus is the embodiment of the
court’s authority to command or correct action after it has been
shown that such a command is required by law. Antieau, supra
at § 2.02, at 293. Its power flows from the law written and
ratified in Article III of the Constitution and developed by
statute in the Judiciary Act of 1789. U.S. Const. art. III, §§ 1,
2, cl. 1; Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81–82
(providing the courts the power to issue writs “necessary for
6
the exercise of their respective jurisdictions, and agreeable to
the principles and usages of law”). Thus, mandamus is a tool
to enforce the expectations of the governed against the
government to whom they consented to be ruled by. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803)
(holding that the judicial power is to determine if one possesses
a vested legal right, and if so, one may come to the courts for
remedy).
Thus, the federal judiciary may not issue writs to control
or direct conduct that it, or the parties, feels is simply
indecorous or unwise. The Federalist No. 78, at 523
(Alexander Hamilton) (J. Cooke ed., 1961) (The federal
judiciary has “neither Force nor Will;” it exercises
“judgment.”); Marbury, 5 U.S. at 170 (The courts “decide on
the rights of individuals.”). Instead, the federal courts issue
mandamus to control the exertions and abdications of power
that contravene the law of the land: the Constitution, and the
laws enacted thereunder. See Marbury, 5 U.S. at 176–78, 180.
With this historical context, I now turn to the modern
iteration of the power to issue writs, which is found where it is
codified, 28 U.S.C. § 1651. The statute provides that “[t]he
Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.” Id. § 1651(a). A feature of the modern writ,
as the Supreme Court and this court have repeatedly noted, is
that, even in alleged clashes between the branches of
government, mandamus “is a ‘drastic and extraordinary’
remedy ‘reserved for really extraordinary causes.’” Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (quoting
Fahey, 332 U.S. at 259–60); see also, e.g., In re Flynn, 973
F.3d 74, 78 (D.C. Cir. 2020) (en banc) (reiterating height of
standard and denying writ); In re Cheney, 544 F.3d 311, 312–
7
13, 314 (D.C. Cir. 2008) (same); In re Clinton, 973 F.3d 106,
111 (D.C. Cir. 2020) (reiterating height of standard and
denying writ as to one petitioner), reh’g denied, 973 F.3d 106
(D.C. Cir. 2020). Indeed, even in those scenarios we must be
reluctant to use the writ because it “is one of ‘the most potent
weapons in the judicial arsenal.’” Cheney, 542 U.S. at 380
(quoting Will v. United States, 389 U.S. 90, 107 (1967)).
At minimum, the Supreme Court has indicated that “three
conditions must be satisfied” to issue mandamus relief. Id.
(citing Kerr v. U.S. Dist. Ct. For N. Dist. Of Cal., 426 U.S. 394,
403 (1976)). First, the party seeking “the writ [must] have no
other adequate means to attain the relief [they] desire[].” Id.
(alteration in original) (quoting Kerr, 426 U.S. at 403).
Second, “the petitioner must satisfy the burden of showing that
[their] right to issuance of the writ is clear and indisputable.”
Id. at 381 (citation modified) (quoting Kerr, 426 U.S. at 403).
And third, “even if the first two prerequisites have been met,
the issuing court, in the exercise of its discretion, must be
satisfied that the writ is appropriate under the circumstances.”
Id. (emphasis added) (citing Kerr, 426 U.S. at 403 (citing
Schlagenhauf v. Holder, 379 U.S. 104, 112 n.8 (1964))).
“These hurdles, however demanding, are not insuperable,” id.,
but no petitioner can be pole vaulted over them, not even the
federal government.
Thus defined, the writ is first and foremost not a gift to the
persuasive, it must be used for the purpose of vindicating an
irrefutable right. In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir.
2020) (“[E]ven if a petitioner’s argument . . . pack[s]
substantial force,” we will deny mandamus if it “is not clearly
mandated by statutory authority or case law.” (citation
modified)). This is because mandamus may not be used “to
actually control the decision of the trial court.” Flynn, 973 F.3d
at 78 (quoting Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240,
8
245 (1964)). We must, therefore, be especially cautious to
avoid using mandamus to correct what we perceive as an error
on the merits. I.C.C. v. U.S. ex rel. Campbell, 289 U.S. 385,
394 (1933) (It is “elementary” that “to compel an adjudication
in a particular way . . . is not the function of the writ.”); id. at
393 (Mandamus cannot be used to correct “[e]rrors of law” in
exercise of “essentially judicial” functions just like “errors of
fact” may not be thus corrected.).
Given this history and tradition of our law, our
responsibility here is to determine whether the district court has
done a thing so extreme as to warrant the writ’s command.
Thus, we must examine the nature of the district court’s
contempt power, what little facts we know from the underlying
record, and the serpentine procedural history of this case. Only
then will we be able to determine if the district court has well
and truly earned being controlled through mandamus.
2.
Contempt is a chimeric creature that often eludes clean
description, but we must try to identify it before casting
judgment on the district court’s attempt to do the same.
Contempt has been generally described as an action that affects
“the due and orderly administration of justice” and the ability
to “maintain[] the authority and dignity of the court.” Cooke v.
United States, 267 U.S. 517, 539 (1925); see also 3A Wright &
Miller’s Federal Practice & Procedure § 702 (4th ed. Sep.
2025 Update) (“Contempt of court is a willful disregard of the
authority of the court.” (citations omitted)).
Because of the clear dangers contempt poses to the court’s
authority to apply and interpret the law, the courts, ex vi
termini, have the power to correct contempt. Ex parte
Robinson, 86 U.S. 505, 510 (1873) (“The moment the courts of
the United States were called into existence and invested with
9
jurisdiction over any subject, they became possessed” of the
power to address contempt.). Yet, at common-law, the
contempt power was ripe for abuse. See Sir John Charles Fox,
The History of Contempt of Court 5 (1927) (referencing the
unpublished decision in Almon’s Case as the progenitor of this
abuse); id. at 8–9 (Almon’s Case describing the contempt
power as derivative of the King’s divine rights and station).
Distinct from the common-law tradition from which it
originated, the federal courts’ modern contempt power has
been defined and limited by statute and case law. Robinson, 86
U.S. at 510; see also Int’l Union, United Mine Workers of Am.
v. Bagwell, 512 U.S. 821, 826–27, 831–34 (1994) (collecting
cases that afford protections for contempt proceedings); 18
U.S.C. §§ 401–402; Fed. R. Crim. P. 42; An Act Declaratory
of the Law Concerning Contempts of Court, ch. 99, §§ 1–2, 4
Stat. 487, 487–88 (1831); Judiciary Act of 1789, ch. 20, § 17,
1 Stat. 73, 83 (1789). Accordingly, from the Founding, the law
has been used to stave off the contempt power’s potential for
abuse.
Moreover, because contumacious behavior appears in
many forms, it requires correction uniquely suited to the
circumstances in which it arises. See, e.g., Chambers v.
NASCO, Inc., 501 U.S. 32, 38 (1991) (violation of a
preliminary injunction); Potter v. District of Columbia, 126
F.4th 720, 722, 726 (D.C. Cir. 2025) (violation of a permanent
injunction); United States v. Gewin, 759 F.3d 72, 74–75 (D.C.
Cir. 2014) (failure to comply with order for criminal restitution
and fine); FG Hemisphere Assocs., LLC v. Democratic
Republic of Congo, 637 F.3d 373, 376 (D.C. Cir. 2011)
(sovereign’s failure to comply with discovery); In re Grand
Jury Subpoena, Judith Miller, 438 F.3d 1141, 1143–44 (D.C.
Cir. 2006) (refusal to comply with a subpoena after motion to
quash was denied).
10
As evidenced by the examples herein, contumacious
behavior is unique and can appear at many stages of myriad
litigation. As a result, proceedings to address contempt
seemingly refuse intelligible categorization. The Supreme
Court has said that while contempt proceedings appear
“criminal in [their] nature, in that the party is charged with
doing something forbidden, and, if found guilty, is punished;”
at the same time, they are “resorted to in civil as well as
criminal actions, and also independently of any civil or
criminal action.” Bessette v. W. B. Conkey Co., 194 U.S. 324,
326 (1904). To put it mildly, contempt proceedings are “sui
generis.” Id.
Because contempt proceedings must be responsive to the
underlying contumacious behavior and circumstances of the
case, the law restricting the contempt power is, in turn,
similarly responsive to prevent judicial abuse of it. Here, we
consider the appeal of a factfinding order, which the district
court has only indicated may help it determine whether to make
a criminal contempt referral. Nevertheless, my colleagues have
resolved this petition as if it were reviewing a conviction for
indirect criminal contempt. These terms—“indirect” and
“criminal”— refer to the mode of the contumacious acts and
the corrective action the court may take to address the same. In
addition, these terms inform us of the constraints,
requirements, and expectations our law imposes on contempt
proceedings. Bagwell, 512 U.S. at 830–34.
The term “indirect” contempt describes the site of the
contumacious acts being addressed. Indirect contempt occurs
outside of the immediate sphere of the court or its personal
knowledge. Id. at 833 (noting that “further procedural
protections are afforded for contempts occurring out of court”
(emphasis added)); see also Indirect Contempt, Contempt,
Black’s Law Dictionary (12th ed. 2024) (“Contempt that is
11
committed outside court, as when a party disobeys a court
order.”). Whereas its obverse, “direct” contempt, occurs
essentially in the presence of the court. Bagwell, 512 U.S. at
832 (describing “petty, direct contempts in the presence of the
court” (citations omitted)).
The term “criminal” contempt refers to what the penalties
imposed on the contemnor are meant to vindicate. Criminal
contempt proceedings vindicate the authority and dignity of the
court. Doyle v. London Guarantee & Accident Co., 204 U.S.
599, 604–05 (1907) (describing some contempt proceedings as
“criminal and punitive in . . . nature” where “the government
and the public are interested”). By contrast, the term “civil”
contempt describes sanctions that are remedial, meant to
address and benefit the underlying proceeding or its parties. Id.
at 605 (defining civil contempt as “remedial [and] . . . coercive
in its character[;] . . . chiefly concerned are individuals whose
private rights and remedies are undertaken to be protected and
enforced” by the court).
This court’s review of criminal contempt proceedings,
both direct and indirect, takes a deferential form. For a
conviction of criminal contempt under 18 U.S.C. § 401, the
prosecuting authority must have proven beyond a reasonable
doubt that the defendant contemnor “willfully violated a ‘clear
and reasonably specific’ order of the court.” United States v.
Rapone, 131 F.3d 188, 192 (D.C. Cir. 1997) (quoting United
States v. NYNEX Corp., 8 F.3d 52, 54 (D.C. Cir. 1993)); accord
United States v. Young, 107 F.3d 903, 907 (D.C. Cir. 1997)
(first citing NYNEX, 8 F.3d at 54; then citing In re Holloway,
995 F.2d 1080, 1082 (D.C. Cir. 1993)). This court reviews the
sufficiency of the evidence de novo, viewing the facts in the
light most favorable to the prosecutor and “asking whether a
fair-minded and reasonable trier of fact [could] accept the
evidence as probative of a defendant’s guilt beyond a
12
reasonable doubt.” Young, 107 F.3d at 907 (alteration in
original) (citations omitted). A sentence from a criminal
contempt conviction is reviewed for an abuse of discretion. 2
Holloway, 995 F.2d at 1087 (citation omitted). We have never
reviewed an interlocutory order in an indirect criminal
contempt proceeding like the one before us, where no referral
has been made and no contempt trial has even begun.
B.
Previously, my colleagues—in granting the first
mandamus petition in this case, vacated the district court’s
previous contempt order, along with its factual findings. 3
2
Our review of civil contempt has taken a more variable form. See,
e.g., Cobell v. Norton, 334 F.3d 1128, 1135–36, 1146–47 (D.C. Cir.
2003) (review following a 29-day trial and opinion finding civil
contempt of court); In re Sealed Case No. 98-3077, 151 F.3d 1059,
1065 (D.C. Cir. 1998) (recognizing that civil contempt orders are
final and reviewable under 28 U.S.C. § 1291). But see id. at 1064–
65 (allowing mandamus review before a final order was issued); In
re Clinton, 970 F.3d 357, 363 (D.C. Cir. 2020) (same), reh’g denied,
973 F.3d 106 (D.C. Cir. 2020).
3
There seems to be persistent confusion about vacatur, and what it
means for the district court’s order in J.G.G. v. Trump, 778 F. Supp.
3d 24 (D.D.C. 2025), mandamus granted, vacated, 147 F.4th 1044
(D.C. Cir. 2025) [hereinafter Probable Cause Order]. The answer is
clear. The order does not exist; it is “void ab initio and thus lack[s]
any prospective legal effect.” Hewitt v. United States, 606 U.S. 419,
431 (2025) (citing United States v. Ayers, 76 U.S. (9 Wall.) 608, 610
(1869) (explaining that a vacated order is “null and void, and the
parties are left in the same situation as if no trial had ever taken
place”)). We have certainly expressed our frustration before to
district courts that have not heeded our vacatur and declined to start
their contempt proceedings from scratch. Cobell v. Norton, 428 F.3d
1070, 1073 (D.C. Cir. 2005) (“In spite of our decision reversing the
district court’s contempt citations, the court made clear that it
13
Today, the majority opinion and my concurring colleague
doubly wish to tell a precise tale of the events that led to the
petition we now consider. Indeed, in considering today’s
petition, one of the benefits of this court’s earlier vacatur is that
no court has preceded us to deliver factual findings and
conclusions of law. And both the majority and concurrence
take great care with their factual recitations to assure us that no
additional facts could support a criminal contempt conviction
of contempt of any kind. I, for one, cannot be so sure.
Consequently, in response to the statements of facts made by
my colleagues and following our court’s earlier vacatur, I
believe a more detailed discussion of what occurred before this
petition is warranted.
On March 14th, 2025, unbeknownst to all but a select few,
a historic presidential proclamation was signed. Proclamation
10903, 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) [hereinafter the Proclamation]. For just
the third time in the history of this republic, a president invoked
the Alien Enemies Act, 50 U.S.C. §§ 21–24 [hereinafter the
Act]. And for the first time in our history, the Act was invoked
in secret and without the United States’ involvement in an
armed conflict. 4
While most of the United States was unaware of this
historic moment, in the labyrinthine world of immigration
custody, it was clear that something was underway. Before the
considered its findings of facts undisturbed.”). Accordingly, it is
improper to reference the Probable Cause Order for its findings, and
no one can in good faith suggest that the district court is relying on
the Probable Cause Order following vacatur.
4
As the majority notes, on February 20th, 2025, Secretary of State,
Marco Rubio, designated Tren de Aragua as a foreign terrorist
organization. Majority Op. at 2 n.1.
14
Proclamation was even signed, several individuals, including
the five Lead Plaintiffs in this case, J.G.G., G.F.F., J.L.G.O.,
W.G.H., and J.A.V., were being prepared for removal under the
Proclamation’s authority. In the first two weeks of March,
Plaintiffs awaiting their immigration relief hearings were
moved from detention centers as far west as Adelanto,
California, and as far east as Goshen, New York, to South
Texas. During this shuffle, many received the surprise that
they were now considered members of Tren de Aragua (TdA).
Others, not so lucky, were only interrogated about TdA by
Immigration and Customs Enforcement without explanation.
By March 14th, 2025, the Lead Plaintiffs were detained at
El Valle Detention Facility (El Valle) in Raymondville, Texas,
which is about twenty-three miles from an airfield that is, in
turn, less than fifteen nautical miles from the U.S.-Mexico
border. Through whispers, they were informed that they would
have no further review of their applications for immigration
relief. Instead, they were told that they were to be deported to
an undisclosed country of removal, potentially as soon as
March 14th. Somehow, Plaintiffs informed counsel of their
movements and the rumors of their imminent removal.
Plaintiffs’ counsel then discovered that these removals would
be pursuant to a presidential proclamation invoking the Act.
At 1:12 A.M. on Saturday, March 15th, 2025, counsel for
Plaintiffs filed a class action suit in the district court, seeking
injunctive and habeas relief, as well as a temporary restraining
order. 5 Around 8:00 A.M. that morning, the district court was
assigned the case. The district court then promptly contacted
counsel for the Federal Defendants. By 9:00 A.M., Plaintiffs’
5
Unless otherwise indicated, all times mentioned are in Eastern
Daylight Time.
15
counsel informed the district court that at least one Plaintiff was
moved from El Valle.
By 9:30 A.M., all five Lead Plaintiffs in Texas had been
awoken, changed, and shackled. Lead Plaintiffs were then
placed on buses; none were informed of their destination, but
all were driven to a nearby airfield. No Lead Plaintiff was able
to speak to their counsel before being moved from El Valle to
the airfield. What became clear in the Texas dawn was that the
rumored removal of dozens of Venezuelan migrants had begun.
Though removal efforts were ongoing in Texas, this
picture was not yet clear in Washington. At this time, the
district court was attempting to reach the Government to no
avail. At 9:40 A.M., the district court entered its first ex parte
temporary restraining order, prohibiting the removal of the
Lead Plaintiffs for fourteen days. Min. Order 2, Mar. 15,
2025. 6 The Government acknowledged and immediately
appealed this minute order. From then on, the Government
participated in the proceedings.
Fearing the fates of the members of the proposed class, at
10:15 A.M., Plaintiffs’ counsel asked the district court for an
emergency hearing to be held that day on their pending motion
for class certification. Plaintiffs’ counsel also requested that
the district court issue a second temporary restraining order to
cover the entire proposed class. The Government objected and
instead asked for a hearing on Monday, March 17th, 2025.
After considering the parties’ requests, at 10:30 A.M., the
district court scheduled an emergency hearing for that
afternoon at 5:00 P.M.
6
Unless otherwise indicated, all record citations reference the district
court docket, J.G.G. v. Trump, No. 25-CV-766 (D.D.C. Mar. 15,
2025).
16
Meanwhile, Plaintiffs were being boarded on planes in
Texas. After some time on the tarmac, an officer called the
names of the Lead Plaintiffs and told them to deplane.
Plaintiffs remained shackled and were then moved to a bus,
where they stayed for several more hours. No one else
deplaned and joined them on that bus and they were not
permitted to have food or water. Lead Plaintiffs also could not
speak with counsel or otherwise communicate that they were
no longer on the planes.
Hours later, at 3:53 P.M., the White House produced the
first publicly available copy of the Proclamation, the
publication required by the Act. 50 U.S.C. § 21. At
approximately 4:15 P.M., the district court was informed by
Plaintiffs’ counsel that they believed two flights were
scheduled to depart that afternoon from South Texas. The
Government offered no response to this communication.
At 5:00 P.M., the parties and the district court convened
over Zoom for an emergency hearing. Min. Order 3, Mar. 15,
2025. Drew Ensign appeared for the Government. When
asked, Mr. Ensign represented that the five Lead Plaintiffs
would not be removed in the next fourteen days but would not
confirm if there were other “removal flights” taking off that day
with prospective class members. Hr’g Tr. at 4:23–5:5, 5:10–
12, Mar. 15, 2025. The district court then directly asked Mr.
Ensign whether there were “imminent deportations and
removals under this proclamation planned,” clarifying that
when it said imminent, it meant “in the next 24 or 48 hours.”
Id. at 11:12–14. Mr. Ensign replied:
Your Honor, I don’t know the answer to that
question. We can certainly investigate that and
report that back to you. But I don’t know that -
- the answer to that. I know what plaintiffs have
17
said to the clerk’s office. I don’t yet know --
have an ability to confirm that or, you know,
contest that.
Id. at 11:15–20.
Taking the Government at its word, the district court asked
Mr. Ensign when he could get the requested information about
any imminent plane departures. Mr. Ensign replied that he
would speak “ASAP” to his clients, the Federal Defendants,
and that he would try to “find out that information.” Id. at
11:23–25. The hearing thus adjourned for a recess until 6:00
P.M. to allow Mr. Ensign to speak with his clients. The time
was 5:22 P.M.
Just minutes later, two planes were wheels up. At about
5:25 P.M., a flight of El Valle detainees left South Texas.
Shortly thereafter, at 5:45 P.M., another flight departed. These
planes were embarking on what would be a two-hour flight
towards Honduras, with el Centro de Confinamiento del
Terrorismo (CECOT), a prison in Tecoluca, El Salvador,
another two hours away.
The hearing resumed at about 6:00 P.M. When asked to
report on any flight details he gleaned from his clients, the
Federal Defendants, Mr. Ensign stated the following:
Your Honor, unfortunately I don’t have many
details to share. I have talked to the clients who
let me know the sort of operational details as to
what is going on with raised potential national
security issues, particularly ones if discussed
with a public line. So I do not have additional
details I can provide at this time.
Id. at 15:8–13.
18
Mr. Ensign then suggested the propriety of an in camera
hearing, which the district court allowed. However, in camera,
Mr. Ensign repeated that there was nothing he could share at
that time. When asked by the district court when the Federal
Defendants would determine what information he could share
in camera, Mr. Ensign said: “I don’t know. I have been trying
to get those details, and I don’t presently know when I would
be able to get that. I’m certainly trying to get that information,
but that is not something, the details, that I know.” Id. at 16:17–
21.
At this point, Plaintiffs’ counsel interjected, representing
that it was their understanding that two flights had departed that
afternoon and an additional flight would be departing at 6:23
P.M., which, at this point in the hearing, was minutes away.
The Government did not contest this representation. It was
then that the district court provisionally certified the class.
After finding that Plaintiffs had met the standard for a class-
wide temporary restraining order “on the expedited time
frame,” id. at 41:1–6, the district court ordered the following
from the bench:
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. And I will issue a minute order
memorializing this so you don’t have to race to
write it down.
So we need to talk about where we go from here
because I want to revisit this after some more
briefing. And again, these are hard questions,
19
and I may end up coming out the other way on
some of them after I have had more time to think
about them and hear from both sides. But what
I am tasked to do today is to make the best
ruling I can under the law and the
circumstances. And particularly given the
plaintiffs’ information unrebutted by the
government that flights are actively departing
and plan to depart, I do not believe that I am able
to wait any longer and that I am required to act
immediately, which I have done so.
So, Mr. Ensign, the first point is that I -- that you
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 42:16–43:19. The temporary restraining order of the
court was thus issued.
The district court, then, within seconds, repeated its order
and its understanding of its subject-matter jurisdiction:
“[a]gain, just so we are clear, if planes have already landed and
discharged their occupants, aside from the five plaintiffs I
enjoined earlier, then this order -- I don’t have jurisdiction to
20
require their return.” 7 Id. at 44:6–9 (emphasis added). The
district court then checked Mr. Ensign’s understanding to
ensure that he knew that the temporary restraining order
enjoined the Federal Defendants:
The Court: Okay. So, Mr. Ensign, I want to hear
from you since you are now the party being
restrained what you would like to do in terms
of briefing and hearing.
Mr. Ensign: Your Honor, offhand, I think we
would be prepared to file a brief Monday night.
We could potentially do so earlier, but in
particular, many of the people subject to this
order, many, most, or all of them are incredibly
dangerous individuals, and so we would like to
be able to develop that as appropriate to --
The Court: No, given -- let me just say, as I said,
you are the one being restrained, so I will give
7
My colleague, in his concurrence, insists that the district court gave
the Government and Federal Defendants options for compliance with
the injunction, and the Government chose the option for compliance
that did not involve the class members’ mid-flight return. Putting to
one side whether that is the proper way for a party to consider its
compliance with an injunction, my colleague points to precisely the
moment when the court minced no words about how the Government
and Federal Defendants were to be bound. The court did not give
options for compliance; rather it enumerated the ways to comply with
its order. It needed to do so because there were facts only the
Government knew and was refusing to disclose, including if there
were removal flights and where those flights were. See Hr’g Tr. at
44:6–9, Mar. 15, 2025 (“Again, just so we are clear, if planes have
already landed and discharged their occupants, aside from the five
plaintiffs I enjoined earlier, then this order -- I don’t have jurisdiction
to require their return.”).
21
you as much time as you want because you are
the one now who’s being disadvantaged, so it’s
your motive to expedite.
Id. at 44:18–45:7 (emphasis added).
Tellingly, Mr. Ensign made the following reply in
response to the court’s clarifications:
Thank you, Your Honor. Could we tentatively
set, you know, Monday night, and then we will
inform the Court if we think we need additional
time, and then we would ask that the plaintiffs’
response be on a similarly expedited basis given
that the government is now under a TRO.
Id. at 45:8–13 (emphasis added).
The district court stated that it would issue a minute order
to memorialize the proceedings. 8 The hearing thus concluded
8
My concurring colleague writes to “separately emphasize,”
Concurring Op. at 1, the district court’s use of the words “I will issue
a minute order memorializing this so you don’t have to race to write
it down,” id. at 42:22–23, shortening it sometimes to “you don’t have
to . . . write it down,” see, e.g., Concurring Op. at 1 (citing id.). The
concurrence concludes that this sentence indicated that a
“forthcoming written order” would bind the Federal Defendants, id.
at 4, rather than anything else, including the district court saying
seconds earlier, “you shall inform your clients of this immediately,”
Hr’g Tr. at 43:11–12, Mar. 15, 2025, or saying to the Government
that the injunction “is something that you need to make sure is
complied with immediately,” id. at 43:18–19. Nor does my
colleague seem persuaded by Government counsel stating on the
record that “the [G]overnment is now under a TRO,” id. at 45:12–
13, and asking for expedited briefing on that basis. In my view, my
colleague’s focus on this language only separately emphasizes the
22
at 6:53 P.M. At 7:25 P.M., the court released the following
minute order:
As discussed in today’s hearing, the Court
ORDERS that: 1) Plaintiffs’ Motion for Class
Certification is GRANTED insofar as a class
consisting of “All noncitizens in U.S. custody
who are subject to the March 15, 2025,
Presidential Proclamation entitled ‘Invocation
of the Alien Enemies Act Regarding the
Invasion of The United States by Tren De
Aragua’ and its implementation” is
provisionally certified; 2) The Government is
ENJOINED from removing members of such
class (not otherwise subject to removal)
pursuant to the Proclamation for 14 days or until
further Order of the Court; 3) The Government
shall file any Motion to Vacate this TRO by
March 17, 2025, with Plaintiffs’ Opposition due
by March 19, 2025 . . . So ORDERED.
Min. Order 4, Mar. 15, 2025 (emphasis added).
It was about ten minutes later that another plane took to
the sky. 9 While it is still not clear from the current record just
importance of not parsing the words of a hearing without context.
The Government and Federal Defendants knew they were
immediately bound, regardless of whether they pressed pen to paper
for their own commemoration.
9
In his concurrence, my colleague assures us that there is no
allegation that the third flight violated the court’s order. However,
that is not for us to say before factfinding, especially given the
Federal Defendants’ recent difficulties with, and related
inconsistencies about, the tracking of persons it left in El Salvador,
including even the number of those left there and those sent on the
23
how many flights took off that day, it appears this was at least
the third plane with Venezuelan migrants aboard. 10 About an
hour after takeoff, at 8:37 P.M., the last event on the docket for
the night occurred: the Government’s appeal of the district
court’s fourth minute order, the second temporary restraining
order, to this court. Notice of Appeal 2, Mar. 15, 2025.
By the early hours of March 16th, 2025, at least three
planes were touchdown in El Salvador.
C.
The rest of the story of this petition begins a little later on
March 16th, and it starts with an unsworn notice from the
Government. It stated that the “Federal Defendants were
promptly notified of the Court’s temporary restraining order
issued in the morning and the 7:26 [P.M.] EDT minute order.”
Gov’t’s Notice to the Ct. at 1, Mar. 16, 2025. The notice also
stated the following: “Federal Defendants further report, based
on information from the Department of Homeland Security,
that some gang members subject to removal under the
Proclamation had already been removed from United States
territory under the Proclamation before the issuance of this
third plane. Contrast Notice in Resp. to Ct. Order at 1, Mar. 18,
2025, and Cerna Decl. ¶ 6, with Rubio Decl. ¶ 2.
10
To this day the Government will not affirmatively state how many
planes departed, instead relying on others’ representations of the
facts. For instance, in their petition for mandamus, the Government
cites an opinion of a judge of this court and the district court’s
vacated probable cause order. Gov’t Pet. 6 (“Two AEA flights had
departed from the United States before the TRO, and even before the
court’s oral directives.”) (first citing J.G.G. v. Trump, 147 F.4th
1044, 1051 (D.C. Cir. 2025) (Katsas, J., concurring in the judgment)
[hereinafter J.G.G.]; then citing Probable Cause Order at 34).
24
Court’s second order.” Id. The following day, Plaintiffs
responded to this notice, providing evidence to suggest that the
Federal Defendants violated the court’s second order.
The district court scheduled a hearing for the evening of
March 17th, directing the Government to be prepared to answer
questions about the Federal Defendants’ alleged violation of
the court’s order. Min. Order 1, Mar. 17, 2025; Min. Order 2,
Mar. 17, 2025. The Government then made an unsolicited
response, stylized as a reply and motion to vacate the hearing.
The Government argued that its first notice was sufficient to
assure the court of the Federal Defendants’ compliance. Yet
the Government again claimed it was not bound by the court’s
order issued during the March 15th hearing. Additionally, the
Government argued that any class member in flight at the time
of the court’s order was removed within the meaning of the
Act, and, therefore, excluded from the injunction.
The district court denied the Government’s motion to
vacate the hearing. Min. Order 3, Mar. 17, 2025. At the
hearing, the district court stated that its purpose was “solely to
perform fact finding about the government’s compliance with
[its] orders.” Hr’g Tr. at 4:21–22, Mar. 17, 2025. First, the
district court asked the Government to confirm on the record
that the five Lead Plaintiffs were in the United States, which
the Government did. The court then asked if the Government
still wished to represent that the flight that took off after the
court’s order contained persons removable on grounds other
than the Proclamation’s authority. The Government confirmed
this and later swore it in a declaration made under court order.
However, when asked, the Government declined to
confirm how many planes departed from the United States
pursuant to the Proclamation, declaring it was not at liberty to
disclose that information to anyone, including the court. The
25
Government did not invoke a privilege to justify its
nondisclosure, even when the court suggested the Government
may be referring to the state secrets privilege. 11
The next day, the Government offered to provide
additional details about flights that took off before the written
order through in camera and ex parte declaration. Shortly after
the Government’s March 18th notice, the district court ordered
the Federal Defendants to make their offered declaration and to
also provide the number of individuals transferred out of U.S.
custody solely under the Proclamation’s authority. Min. Order,
Mar. 18, 2025. Hours before the filing deadline for the
declaration the Government offered to make, it filed an
emergency motion to stay or delay the court’s previous order.
The Government argued that it need not comply because this
court would likely stay the district court’s temporary
restraining orders. Also, the Government stated—for the first
time—that the Federal Defendants might invoke the state
secrets privilege to prevent further disclosure of flight or
migrant information.
The district court granted the Federal Defendants
additional time to either provide the requested information or
move to invoke the state secrets privilege. Order at 4, Mar. 19,
2025. The Government missed this deadline without warning
or explanation. Order at 1, Mar. 20, 2025. Then, in an ex parte
11
The state secrets privilege, a common-law doctrine, “permits the
Government to prevent disclosure of information when that
disclosure would harm national security interests.” United States v.
Zubaydah, 595 U.S. 195, 204 (2022) (citing United States v.
Reynolds, 345 U.S. 1, 10–11 (1953) (military secrets)); In re Sealed
Case, 494 F.3d 139, 144 (D.C. Cir. 2007) (intelligence information,
operatives, and organizational structure) (additional citation
omitted)). Courts are permitted a very limited inquiry into
information protected by this privilege. Reynolds, 345 U.S. at 8–10.
26
declaration, the Government represented that the Federal
Defendants were not yet invoking the state secrets privilege but
also still would not provide additional flight information. Id.
at 1–2. Only then did the court order the Federal Defendants
to submit sworn declarations invoking the state secrets
privilege and a brief showing cause that they did not violate the
temporary restraining orders. Id. at 3.
On March 24th, 2025, the Government invoked the state
secrets privilege, refusing to release any further information to
the court about March 15th. The next day, the Government
filed a response to the court’s order to show cause, brazenly
claiming that while, “[it] had already removed” class members
before the injunction, a court could never have required the
return of class members in flight to CECOT anyway. Resp. to
Order to Show Cause at 2, Mar. 25, 2025.
****
Meanwhile, this court considered the Government’s
March 15th motion to stay the district court’s temporary
restraining orders. On March 26th, a panel of this court denied
the Government’s motion over a dissent. J.G.G. v. Trump, No.
25-5067, 2025 WL 914682, at *1 (D.C. Cir. Mar. 26, 2025).
The Government then appealed to the Supreme Court.
On April 7th, the Supreme Court issued its order, Trump
v. J.G.G., 604 U.S. 670 (2025) (per curiam). The Court granted
the Government’s application and vacated the district court’s
temporary restraining orders. Id. at 671. The Court held that
Plaintiffs sought “equitable relief against the implementation
of the Proclamation and against their removal” under the Act.
Id. (emphasis added). The Court also held that challenges to
removal procedures under the Act should be filed in the venue
corresponding with the district of confinement. Id. at 672–73.
Briefly discussing the merits, the entire Court agreed that those
27
detained and subject to removal under the Act were entitled to
notice and an opportunity to challenge their removal and
judicial review. Id. at 673.
****
On April 16th, the district court issued a written order and
memorandum opinion regarding the Government’s alleged
contempt. J.G.G. v. Trump, 778 F. Supp. 3d 24 (D.D.C. 2025),
mandamus granted, vacated, 147 F.4th 1044 (D.C. Cir. 2025)
[hereinafter Probable Cause Order]. In the Probable Cause
Order, the district court first considered whether, following the
Supreme Court’s vacatur of the temporary restraining orders, it
maintained the authority to make contempt findings. Id. at 39–
42. The district court remarked that “it is a foundational legal
precept that every judicial order ‘must be obeyed’ — no matter
how ‘erroneous’ it ‘may be’— until a court reverses it.” Id. at
30 (quoting Walker v. City of Birmingham, 383 U.S. 307, 314
(1967)). To that end, the district court found that while the
temporary restraining orders “suffered from a legal defect,” it
did not “excuse the Government’s violation” of the same. Id.
at 30.
Having assured itself of its authority to make contempt
findings, the district court proceeded. The district court
analyzed its orders and how they were to restrain the Federal
Defendants. After carefully analyzing the facts, standards, and
relevant arguments, the district court found the Federal
Defendants acted in willful disregard of its orders by
transporting members of the court-certified class to foreign
custody. Id. at 54. The district court then offered the
Government two paths forward. 12 Id. The Federal Defendants
12
Though a judge of this court has reprimanded the district court for
taking this approach, J.G.G., 147 F.4th at 1066, 1068 (Rao, J.,
concurring in the judgment), our law suggests that this is not
28
could “purge its contempt,” by exercising custody over persons
transported in violation of the court’s order or the court could
proceed to prepare a criminal contempt referral. Id.
The Government immediately appealed the Probable
Cause Order to this court, asking for an emergency stay
pending appeal, or, alternatively, a writ of mandamus to end
the contempt proceedings. Plaintiffs also filed a motion to
dismiss the appeal for lack of appellate jurisdiction. On April
18th, this court granted an administrative stay to consider these
motions.
On August 8th, 2025, the emergency panel issued its
decision. J.G.G. v. Trump, 147 F.4th 1044, 1044–45 (D.C. Cir.
2025) (per curiam) [hereinafter J.G.G.]. The panel granted the
Government’s petition for the writ over a dissent but was
largely split on the issues presented to it. Id. at 1045. The panel
all agreed, however, that it lacked appellate jurisdiction over
the Probable Cause Order. Id. Though two panelists concurred
in the judgment that the Government was entitled to
mandamus, they sharply disagreed on why. 13 Contrast id. at
unprecedented, but perhaps appropriate under certain circumstances
to avoid clashes between the court and litigants. See, e.g., Young v.
United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987)
(“We have suggested . . . that, when confronted with a witness who
refuses to testify, a trial judge should first consider the feasibility of
prompting testimony through the imposition of civil contempt,
utilizing criminal sanctions only if the civil remedy is deemed
inadequate.” (citation omitted)).
13
Vacatur cannot be granted as a remedy without a declaration of
law upon which to base such relief. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177 (1803); see also Benjamin B. Johnson, A History
of Vacatur, 135 Yale L.J. 761, 771 (2026). There was no declaration
of law that accompanied vacatur in J.G.G. v. Trump because the
majority granting vacatur did not agree on why the Government was
entitled to mandamus. 147 F.4th at 1044. While some may suggest
29
1046 (Katsas, J., concurring in the judgment), with id. at 1064–
65 (Rao, J., concurring in the judgment). These panelists also
did not align on the scope of relief to be granted, agreeing only
to vacate the Probable Cause Order. Id. at 1063 (Katsas, J.,
concurring in the judgment); id. at 1072 (Rao, J., concurring in
the judgment).
One judge granted the writ after resolving what he
believed was an interpretive dispute about the language and
restrictions of the March 15th temporary restraining orders in
the Government’s favor. Id. at 1051–57 (Katsas, J., concurring
in the judgment). The other judge viewed the case differently.
Examining the nature of the Probable Cause Order, she found
that the district court abused its discretion by providing
alternative contempt paths for the Government to choose from,
purge (civil) or prosecution (criminal). Id. at 1066–68 (Rao, J.,
concurring in the judgment). However, this judge expressly
permitted the district court to continue its criminal contempt
proceedings. Id. at 1073 (Rao, J., concurring in the judgment)
(“Whether to proceed with criminal contempt is a choice left to
the district court.”).
Plaintiffs petitioned for rehearing en banc. On November
14th, this court denied rehearing with three judges dissenting
from the denial. J.G.G. v. Trump, No. 25-5124, 2025 WL
3198891, at *1, *4 (D.C. Cir. Nov. 14, 2025) (per curiam).
Three statements accompanied the denial. Three judges
dissented, one concluding that the panel’s grant of mandamus
relief departed from settled precedent, and the others
concluding that the decision carried serious practical and
structural consequences for the rule of law. Id. at *4 (Millett,
this disagreement between the panel indicated J.G.G.’s lack of
precedential value, I would posit that we did something dangerous:
allowing vacatur to be granted as a remedy without providing
controlling law to justify it. Marbury, 5 U.S. at 177.
30
J., dissenting); Id. at *7–9 (Pan, J., dissenting). Three judges,
concurring in the denial of en banc review, wrote a statement
that questioned whether J.G.G. warranted the en banc court’s
review. Id. at *3–4 (Pillard, Wilkins & Garcia, JJ., statement).
However, the common thread across the three statements, and
their six judges, was that the contempt proceedings could go
forward. Id. at *4 (Millett, J., dissenting); id. at *7 (Pan, J.,
dissenting); id. at *3 (Pillard, Wilkins & Garcia, JJ., statement).
****
On November 17th, the district court posted a notice of a
hearing during which the parties would discuss future contempt
proceedings. Min. Order, Nov. 17, 2025. At the hearing, the
district court began by elucidating why it was permitted to
proceed with a contempt inquiry. The court clarified that this
inquiry was “not to determine whether to hold the
[G]overnment in contempt,” but instead, it was to determine
“whether there is sufficient information to make a contempt
referral.” Hr’g Tr. at 2:24–3:1, Nov. 19, 2025 (emphasis
added).
The court stated it would determine whether to initiate an
indirect criminal contempt proceeding, which it concluded
started with factfinding. Id. at 5:9–11; see also id. at 3:9–12
(citing J.G.G. v. Trump, 2025 WL 3198891, at *2 (Pillard,
Wilkins & Garcia, JJ., statement)). The district court also
determined that it needed to begin with factfinding because this
court vacated its Probable Cause Order. Id. at 5:9–11. As part
of its factfinding, the court noted it was permitted to “require
the [G]overnment to identify the decisionmakers who directed
the potentially contemptuous actions and to carefully consider
next steps.” Id. at 3:19–22 (quoting J.G.G. v. Trump, No. 25-
5124, 2025 WL 3198891, at *3 (Pillard, Wilkins & Garcia, JJ.,
statement))
31
The district court offered the parties the option to either
produce witnesses for testimony or declarations from relevant
persons to account for their actions on March 15th. The
Government first produced declarations, all of which pointed
to former Secretary of the Department of Homeland Security,
Kristi Noem, as the decision maker who, after receiving advice
of government counsel, ordered the planes to continue their
flight path to CECOT. 14 See, e.g., Noem Decl. ¶¶ 1–2. The
information in the declarations was limited and contradicted
earlier representations made by the Government. Contrast id.,
and supra n.11, with supra Sections I.B–C. So, “to better
understand the bases of the decision to transfer the deportees
out of United States custody” on March 15th, the court ordered
testimony from attorneys who had either represented the
Federal Defendants during the March 15th hearings, or those
who had already spoken publicly about the events. Order at 1–
2, Dec. 8, 2025 [hereinafter Testimony Order]. This order is
14
Former Principal Associate Deputy Attorney General Emil Bove
stated that he was aware of the district court’s March 15th statements
and orders and provided privileged legal advice to former Secretary
Noem on “the transfer of custody” of persons detained under the
Proclamation’s authority. Bove Decl. ¶¶ 3–5. Acting General
Counsel of the Department of Homeland Security Joseph Mazzara,
made similar statements, also remarking that he gave former
Secretary Noem “legal advice—prior to her decision—about the
legality of continuing with the transfer of custody.” Mazzara Decl.
¶ 1. Then Deputy Attorney General of the Department of Justice,
Todd Blanche, stated that, along with former General Bove, he
provided privileged legal advice to former Secretary Noem, through
Mr. Mazzara, regarding the transfer of persons designated as
removable under the Proclamation. Blanche Decl. ¶ 1. These
declarations contradict the Government’s earlier representations that
it could not reach the Federal Defendants, did not know their present
plans, and as a result could not share their movements.
32
the basis for the petition for a writ of mandamus that we now
consider.
II.
We begin, as we must, with the presumption that this cause
is “outside [of our] limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citing
Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11 (1799)). To
dispel that presumption, the party invoking our jurisdiction
bears “the burden of establishing” that we have it. Id. (citing
McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
182–83 (1936)). And yet, the Government did not devote a
word to this burden, likely forfeiting that we even have
jurisdiction. Scenic Am., Inc. v. U.S. Dep’t of Transp., 836 F.3d
42, 53 n.4 (D.C. Cir. 2016) (“Although a party cannot forfeit a
claim that we lack jurisdiction, it can forfeit a claim that we
possess jurisdiction.” (citation omitted)). Still, it is worth
explaining why we lack the power to consider this petition.
The difficulty that the Government faces in establishing
appellate jurisdiction stems from the order that it wishes us to
review, the Testimony Order. While the Government may
have felt entitled to come to us at this stage because of J.G.G.—
where the panel delivered a judgment whilst agreeing that our
court was without appellate jurisdiction, 147 F.4th at 1045, our
review of the Testimony Order is distinctly problematic. 15 The
Testimony Order has notable differences in its character and
scope from the Probable Cause Order, including that the former
15
I maintain that the emergency panel in J.G.G. did not have
appellate jurisdiction and could not otherwise review the petition by
way of the All Writs Act. Cf. United States v. L.A. Tucker Truck
Lines, Inc., 344 U.S. 33, 38 (1952) (“[T]his Court is not bound by a
prior exercise of jurisdiction in a case where it was not questioned
and it was passed sub silentio.”(citations omitted)).
33
is an even more egregiously premature basis for a mandamus
petition. Still, an additional problem has been posed by the
majority’s approach today. Dangerously, the majority seems
to blend our traditional jurisdictional inquiry with the first
condition of the mandamus standard. This is not only improper
because it betrays our precedent, but because it contravenes the
purpose of the standard: when review upon appeal of a final
judgment is available for an error, the petitioner must pursue
that route to vindication, rather than mandamus.
Thus, as our law requires, I begin with the traditional
routes to interlocutory appellate jurisdiction. Then, I explain
why we still may not consider the Government’s petition.
A.
As established by the Judiciary Act of 1789, in general,
“only final decisions of the federal district courts” are
reviewable upon appeal. Carson v. Am. Brands, Inc., 450 U.S.
79, 83 (1981); 28 U.S.C. § 1291. As the Government and
majority seem to agree, an order requiring witness testimony is
not a final order. In re Sealed Case, 737 F.2d 94, 97 (D.C. Cir.
1984) (describing “the main rule” that an order compelling
testimony is not immediately appealable (collecting cases)).
Nor is the Testimony Order a kind of final order arising out of
a contempt proceeding. Bray v. United States, 423 U.S. 73, 76
(1975) (recognizing that criminal contempt judgments are
final); see also Salazar ex rel. Salazar v. D.C., 602 F.3d 431,
436 (D.C. Cir. 2010) (reviewing an order assessing monetary
sanctions as a final judgment).
Of course, “Congress created certain exceptions” to the
rigid application of Section 1291, the reviewable orders under
Section 1292. Carson, 450 U.S. at 83; 28 U.S.C. § 1292. Yet
this route to appellate review is also likely foreclosed. See
34
United States v. Ryan, 402 U.S. 530, 532, 534 (1971) (holding
that a subpoena is not appealable under Section 1292(a)(1)).
The Government also declined to invoke the collateral
order doctrine, which allows our review of certain orders not
covered by Section 1291. 16 See Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106 (2009) (citing Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545–46 (1949)).
Regardless, because we apply the collateral order doctrine most
narrowly in criminal cases, United States v. Cisneros, 169 F.3d
763, 767 (D.C. Cir. 1999) (citations omitted), this avenue also
appears closed to the Government, id. (describing the doctrine
as applying to orders where a defendant asserts “a right not to
be tried”). See also Mohawk, 558 U.S. at 107–08 (denying
collateral review of orders requiring waiver of attorney-client
privilege); Ryan, 402 U.S. at 534 (denying collateral review of
pre-trial discovery orders).
With interlocutory appellate jurisdiction shuttered by
precedent, I now consider whether we may otherwise review
this petition.
B.
The plain language of the All Writs Act gives us leave to
issue the writ “in aid of” our appellate jurisdiction, 17 28 U.S.C.
16
The collateral order doctrine allows for appellate review of orders
that are (1) conclusive (2) resolve important questions of law on the
merits, and (3) “effectively unreviewable” upon appeal of a final
judgment of the underlying case. O’Connell v. U.S. Conf. of Cath.
Bishops, 134 F.4th 1243, 1249 (D.C. Cir. 2025) (citation omitted).
17
For mandamus issued under 28 U.S.C. § 1361, not the All Writs
Act, 28 U.S.C. § 1651, we have held that the requirements for
mandamus relief themselves are jurisdictional, meaning that if they
are not met, the court is duty-bound to dismiss the petition for lack
35
§ 1651(a); and we may use all such writs as long as it “is
calculated in its sound judgment to achieve the ends of justice
entrusted” to us. United States v. N.Y. Tel. Co., 434 U.S. 159,
172–73 (1977) (citation omitted). However, mandamus is not
necessarily limited “by an unduly narrow and technical
understanding” of jurisdiction. Mallard v. U.S. Dist. Ct. for the
S. Dist. of Iowa, 490 U.S. 296, 309 (1989) (quoting Kerr, 426
U.S. at 402) (additional citation omitted). Indeed, the Supreme
Court has allowed the jurisdictional thresholds of the All Writs
Act to be applied “flexibly” at times. N.Y. Tel. Co., 434 U.S.
at 173; see also Cheney, 542 U.S. at 380 (citation omitted).
Still, the All Writs Act does not provide an independent
grant of jurisdiction. 18 Clinton v. Goldsmith, 526 U.S. 529,
534–35 (1999) (citations omitted); accord In re Nat’l Nurses
United, 47 F.4th 746, 752 (D.C. Cir. 2022). The All Writs Act
only allows process in aid of our “existing statutory
jurisdiction” and it cannot “enlarge it.” In re United States, 143
of jurisdiction. Citizens for Responsibility and Ethics in Washington
v. Trump, 924 F.3d 602, 606 (D.C. Cir. 2019).
18
The Government’s petition, maybe unintentionally, invokes
another way to jurisdiction: its wish for future proceedings to be
reassigned to a different judge because of alleged animus. See 28
U.S.C. §§ 455(a), 455(b)(1), 2106. However, the Government has
not properly made this challenge or met its burdens to earn this relief.
In re al-Nashiri, 791 F.3d 71, 79 (D.C. Cir. 2015) (noting that we
grant such relief “when a judicial officer declines to recuse himself.”
(emphasis added)); In re Flynn, 973 F.3d 74, 83 (D.C. Cir. 2020) (en
banc) (concluding that reassignment is only appropriate “in the
exceedingly rare circumstance that a district judge’s conduct is so
extreme as to display clear inability to render fair judgment.”
(citation modified)). In its petition, the Government mimes animus.
It provided no examples of retaliation, harassment, bias, or partiality,
which is fatal to its request. Though the majority declines to address
this argument, I would deny the Government’s reassignment request
and exercising review of the rest of the petition on the same grounds.
36
F.4th 411, 422 (D.C. Cir. 2025) (citation modified). As a
result, “whatever may be done without the writ may not be
done with it.” Bankers Life & Cas. Co. v. Holland, 346 U.S.
379, 383 (1953) (citing Ex parte Rowland, 104 U.S. (14 Otto)
604, 617 (1881)).
In this landscape, there is seemingly only one way that we
may consider this mandamus petition. 19 This avenue stems
from the notion that the authority to issue writs attaches the
moment “there has been a proceeding of some kind that might
lead to an appeal.” In re United States, 143 F.4th at 422 (citing
In re al-Nashiri, 791 F.3d 71, 76 (D.C. Cir. 2015)).
“Accordingly, we can issue a writ of mandamus now to protect
the exercise of our appellate jurisdiction later.” al-Nashiri, 791
F.3d at 76 (In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004)).
Hence, when this court is vested with appellate jurisdiction
over the underlying proceeding, we similarly have jurisdiction
to issue writs of mandamus. In re United States, 143 F.4th at
423 (citing id.). Our court has even described this authority to
issue mandamus as attaching “[o]nce there has been a
proceeding of some kind instituted before an agency or court
that might lead to an appeal.” Tennant, 359 F.3d at 529.
Interestingly, the majority invokes this avenue now, Majority
Op. at 12 n.8, though it was never discussed in J.G.G.
19
The only other possible avenue arises when this court has
exclusive jurisdiction to review final judgments from the underlying
proceedings. See, e.g., al-Nashiri 791 F.3d at 76 (reviewing a
mandamus petition from a proceeding arising under the Military
Commissions Act of 2009, which gives this court “exclusive
jurisdiction to determine the validity of a final judgment rendered by
a military commission.” (quoting 10 U.S.C. § 950g(a)). The
Government does not contend, nor could it, that we have exclusive
jurisdiction to review final judgments from all contempt
proceedings.
37
Regardless, I take issue with using this avenue to exercise
mandamus review. This court’s review of a petition arising
based on the Testimony Order is to allow mandamus review
because of the specter of future appellate jurisdiction. For
relying on this logic would require us to pile assumption on
assumption about the results of this proceeding. We would
have to assume that the Testimony Order will result in factual
findings that will result in a probable cause finding, which then
will result in a prosecutor accepting the referral, and then that
such a hypothetical prosecution will result in a judgment.
Surely, this path to eventual appellate jurisdiction is too
attenuated to allow us to consider, much less exercise, the writ
of mandamus at this preliminary juncture. As a result, I
disagree with any suggestion that we may review this
mandamus petition on the basis of our prospective appellate
jurisdiction.
III.
Even assuming we have jurisdiction to review this petition,
I disagree that mandamus relief is warranted. Given that the
writ of mandamus is a “potent weapon[],” the Supreme Court
requires that “three conditions must be satisfied” before a court
can issue this rare award. Cheney, 542 U.S. at 380 (citation
omitted). First, the petitioner must “have no other adequate
means to attain” their relief. Id. (citation omitted). Second, the
petitioner must demonstrate a “clear and indisputable” right to
that relief. Id. at 381 (citation omitted). Third, even if the
petitioner succeeds on these first two conditions, this court
must analyze the relevant equitable principles and the context
of the underlying proceedings to determine whether relief is
“appropriate under the circumstances.” Id. (citation omitted).
The Supreme Court made these conditions intentionally
“demanding,” id. at 381, so that the “drastic and extraordinary
remedy” of mandamus is deployed only for “really
38
extraordinary causes,” id. at 380 (quoting Fahey, 332 U.S. at
259–60).
A.
Even if the Government later shows a clear and
indisputable right, it must first show that there is “no other
adequate means to attain the relief” it desires. Id. (citation
omitted). This is a condition “designed to ensure that the writ
will not be used as a substitute for the regular appeals process.”
Id. at 380–81 (citing Fahey, 332 U.S. at 260). As the Supreme
Court has noted, the importance of this condition is that it
prevents the writ from being used as a pathway to circumvent
the rote inconveniences of appeal, “even though hardship may
result from delay and perhaps unnecessary trial.”
Schlagenhauf, 379 U.S. at 110 (citations omitted).
Given that interlocutory appellate jurisdiction is
unavailable and the ordinary appellate process is readily
available, see supra Section II.A., the Government must show
that pursuing an ordinary appeal would be more than
inconvenient, rather it would provide wholly inadequate or
nugatory relief. See United States v. Fokker Servs. B.V., 818
F.3d 733, 747–49 (D.C. Cir. 2016) (first concluding that
interlocutory appeal was unavailable); see also id. at 749 (then
concluding that because the government would potentially be
left with “no remedy” it suffered an “irreparable injury” that,
without mandamus, would “go unredressed” (emphasis added)
(first citing Cheney, 542 U.S. at 380; then quoting al-Nashiri,
791 F.3d at 79)). I only see a showing from the Government
that it wishes to avoid the inconveniences of litigation, and this
is not enough.
Indeed, the Government points to no authority contrary to
what I have said above, but it argues that it has no other
adequate means of relief because the contempt inquiry’s
39
“incursions on Article II functions will occur before any final
contempt conviction and cannot be remedied after the fact.”
Gov’t Pet. 26. To support this notion, the Government points
to United States v. Fokker Services B.V., suggesting that
mandamus is appropriate when the “Executive’s primacy” as a
prosecutor is at stake. 818 F.3d at 741. I am unpersuaded.
In Fokker, this court granted a writ to consider a challenge
to the district court’s rejection of a deferred prosecution
agreement because, in the court’s view, it was too lenient for
the defendant. Id. at 737–38, 740–41. There, we held that
mandamus review and relief was warranted because the district
court exceeded its authority under the Speedy Trial Act and
usurped the role of the prosecutor in plea negotiations. Id. at
740–41. Thus, the mandamus rebuke in Fokker was to restore
authority to the prosecutor and confine the court to its proper
role. Id. at 741. Here, by contrast, the district court is soliciting
testimony in order to determine whether it will exercise its
inherent and statutory authority. See Robinson, 86 U.S. at 510;
18 U.S.C. §§ 401–402. Accordingly, to exercise mandamus in
this scenario would create the opposite result of Fokker: it
would take inherent and statutory authority from the court
instead of confining a court to its jurisdiction.
Importantly, the prosecutorial referral, which has not even
been made, is a decision that the district court gets to make in
the first instance—not the prosecutor and not us. There is also
no danger to the Executive’s prosecutorial authority posed by
the district court seeking limited live testimony from two
people. One of these witnesses has already testified publicly
on the events in question and the other was representing the
Government in the hearings at issue. For reasons explained in
greater detail in later portions of this opinion, see infra Sections
III.B.2.–3., it is natural for the court to inquire about the alleged
40
contumacious behavior from those who may have direct
knowledge of it.
The majority appears to go even further than the
Government goes, concluding that the district court is not a
usurper but an interloper into the Executive’s private
deliberations into national security, foreign affairs, and
diplomacy. The majority insists that the Supreme Court has
demanded that if there is such a danger of a constitutional
confrontation between the branches, we may not wait a second
before acting. The majority intervenes prematurely.
In the majority’s view, the dangers posed by contempt
factfinding to our separation of powers scheme are so great that
it requires this court’s review, in spite of the availability of
review after final judgment. To the majority, mandamus is the
only way to expeditiously address the Government’s concerns.
This is backwards. This condition of the mandamus standard
exists in our precedent to ensure that mandamus is not
substituted for normal appellate review. Cheney, 542 U.S. at
380–81 (citing Fahey, 332 U.S. at 260). Our precedent
distinguishing this condition of mandamus from appellate
jurisdiction also aligns with our statutory scheme of judicial
review. Surely, given the storied history of the judiciary acts,
Congress “contemplated” the availability of mandamus when
“providing that only final judgments” are within our
jurisdiction to review,” Holland, 346 U.S. at 383, and then
providing that the writ may only be issued in aid of this court’s
existing jurisdiction, 28 U.S.C. § 1651(a).
I cannot ignore the fact of the matter, which is that an
adequate alternative means for relief plainly exists, the appeal
of a contempt judgment. Even in a previous contempt
proceeding conducted by a district court over Executive Branch
employees and officials, this court reviewed the district court’s
41
contempt findings at the appropriate time, upon appeal of a
final judgment. See Cobell v. Norton, 334 F.3d 1128, 1140
(D.C. Cir. 2003). So it cannot be said that contempt actions
against members of the Executive Branch, in and of
themselves, require mandamus to avoid a judgment being
entered against them. See id.
Additionally, the district court is, and has always been,
interested in non-privileged communications related to the
events of March 15th. These events, of course, include the
decisions about whether to obey the court’s order, which
themselves may be unprotected criminal communications. In
addition, as I discussed at length above, see supra Section I.A.,
there is more than one way to commit contempt, and assurances
from alleged contemnors that only one person deserves the
court’s scrutiny is cold comfort. For instance, testimony may
reveal potential misrepresentations of the facts that were made
before the court on the record during the March 15th hearing.
Moreover, as discussed in more detail below, see infra
Sections III.B.2.–3., allowing examination in a non-adversarial
show-cause hearing or other pre-referral evidentiary hearing, is
permissible and part of the district court’s factfinding before
making findings of probable cause. Thus, the factfinding the
majority lambasts is not done to examine the innerworkings of
the Executive Branch, but instead to determine whether
contempt may lie at all against those before the court.
In sum, the Government’s showing here is inadequate
because it merely reflects an interest in being free from the
normal procedures of litigation. In this case, it wishes to be
free from factfinding about allegations that it committed
criminal activity. The majority also does not do any more to
convince me that our separation of powers scheme is so
endangered that urgent mandamus intervention is required.
42
Hence, I am not convinced mandamus must issue at this time
and in this posture; there are adequate alternative means
available here for review.
B.
To be granted the extraordinary relief of the writ, “the
petitioner must satisfy the burden of showing that [their] right
to issuance of the writ is clear and indisputable.” Cheney, 542
U.S. at 381 (citation modified). Petitioner may not point to “an
erroneous lower court ruling” alone and then cry mandamus;
the asserted “error has to be clear.” Al Baluchi, 952 F.3d at 369
(quoting In re Kellogg Brown & Root, Inc., 756 F.3d 754, 762
(D.C. Cir. 2014)) (citation modified). To meet this arduous
standard, we require petitioners to “point to ‘cases in which a
federal court has held that’ relief is warranted ‘in a matter
involving like issues and comparable circumstances.’” Id.
(quoting Doe v. Exxon Mobil Corp., 473 F.3d 345, 355 (D.C.
Cir. 2007)).
The Government presented us with a smörgåsbord of bases
to determine it has a clear and indisputable right to relief. For
instance, the Government argues it cannot be held in contempt
for violating an order the Supreme Court vacated for legal
error. It also asserts a blanket privilege from testimony about
the events of March 15th because that would risk breaching the
attorney-client privilege between itself and the Federal
Defendants. Additionally, the Government contends we must
foreclose further factfinding and any future criminal contempt
trial because it threatens the separation of powers. The
majority takes up none of these arguments.
Instead, the majority takes a different approach, affixing
itself to a position mentioned in a handful of sentences in the
petition: the Government has a clear and indisputable right to
mandamus because, on the merits, contempt cannot be found
43
for the disobedience of an order that is not clear and specific.
My own response to this position follows in Section III.B.4.
However, below, I begin with the merits of the Government’s
other arguments, for the erroneous logic of each seems to leach
into other aspects of the majority’s mandamus analysis.
1.
The Government argues that the district court lacked
jurisdiction to restart criminal contempt proceedings because
“contempt cannot exist for the violation of an order that lacked
jurisdiction in the first place.” Gov’t Pet. 19 (citing Ex parte
Fisk, 113 U.S. 713, 714 (1885)). From that premise, the
Government seeks to carve out what it describes as an
exception to the collateral bar rule. The district court saw
matters differently. In the district court’s view, the Supreme
Court did not identify a jurisdictional defect, but a defect of
venue. The Government responds that the “analogy is inapt,”
Gov’t Pet. 19, insisting that filing a habeas petition outside of
Plaintiffs’ district of confinement sounds in personal
jurisdiction, not venue. Precedent does not carry the
Government’s argument.
Begin with the collateral bar rule. At bottom, it reflects a
straightforward proposition that “persons subject to an
injunctive order issued by a court with jurisdiction are expected
to obey that decree until it is modified or reversed, even if they
have proper grounds to object to the order.” GTE Sylvania, Inc.
v. Consumers Union of U.S., Inc., 445 U.S. 375, 386 (1980)
(collecting cases). Embedded in that principle is another,
equally settled proposition: “a federal court always has
jurisdiction to determine its own jurisdiction.” United States v.
Ruiz, 536 U.S. 622, 628 (2002) (citing United States v. United
Mine Workers of Am., 330 U.S. 258, 291 (1947)). The All
Writs Act, as mentioned above, codifies this understanding by
44
authorizing the 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); see
also SEC v. Vision Commc’ns, Inc., 74 F.3d 287, 291 (D.C. Cir.
1996) (explaining that the All Writs Act “empowers a district
court to issue injunctions to protect its jurisdiction”).
That understanding of the All Writs Act fits comfortably
within the broader law of provisional relief. For instance, a
temporary restraining order, like a preliminary injunction,
exists to “preserve the status quo pending the outcome of
litigation.” Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C.
Cir. 2006) (citation modified); see Univ. of Tex. v. Camenisch,
451 U.S. 390, 395 (1981); 11A Wright & Miller’s Federal
Practice & Procedure Civil § 2951 (3d ed. Sep. 2025 update)
(observing that temporary restraining orders are “designed to
preserve the status quo until there is an opportunity to hold a
hearing on the application for a preliminary injunction”).
United States v. Shipp makes the logic explicit—until a district
court’s jurisdictional determination is overturne
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