On Wednesday, veteran trial attorney and legal scholar Alan M. Dershowitz publicly challenged U.S. District Judge James E. Boasberg’s recent initiative to appoint a special prosecutor tasked with pursuing criminal contempt charges against the Trump administration for allegedly disobeying a court directive. According to Judge Boasberg—an appointee of President Barack Obama—the Trump administration’s invocation of the Alien Enemies Act of 1798 to detain and deport violent gang members without recalling an already-en route deportation flight constituted noncompliance with his order. Although the Supreme Court ultimately thwarted the judge’s attempt to halt the deportation, Boasberg indicated he would move forward with contempt proceedings.
In a detailed interview with Newsmax, Dershowitz argued that the contempt effort is legally unsound on multiple grounds: the judge’s directive was impermissibly vague, an oral order cannot serve as the basis for criminal contempt, and there was no written directive mandating the recall of the flight. Dershowitz went further by suggesting that Judge Boasberg himself ought to face contempt charges for issuing an unenforceable order. This article provides a comprehensive professional analysis of the events, legal principles, and broader implications for the rule of law and separation of powers.
1. Historical and Legal Context: The Alien Enemies Act of 1798
The Alien Enemies Act (AEA), codified at 50 U.S.C. § 21–24, is one of four immigration-related statutes collectively known as the Alien and Sedition Acts of 1798. Originally conceived amid fears of foreign infiltration during the Quasi-War with France, the AEA confers broad authority on the federal executive to detain or deport nationals of designated hostile nations during times of declared war or invasion.
1.1 Key Provisions of the Act
- Detention Authority: The statute permits the detention of noncitizens from designated enemy nations if they are deemed dangerous or have harbored hostile intentions.
- Detention Period and Review: Initially, the statute allowed for indefinite detention, subject to executive determination. Modern interpretation has introduced periodic review requirements.
- Deportation Mechanism: The Attorney General is empowered to remove enemy aliens to their country of origin or a third country willing to accept them.
1.2 Modern Usage and Constraints
Over the centuries, the AEA has remained dormant except during World Wars I and II, when German, Austro-Hungarian, and later Japanese nationals were interned. Constitutional safeguards—namely due process and judicial oversight—limit the statute’s application today. Courts require a clear delineation of enemy status, appropriate procedures, and respect for basic constitutional rights.
2. Case Background: Judge Boasberg’s Emergency Order and the Deportation Flight
In late 2023, the Department of Homeland Security (DHS) invoked the AEA to target known members of MS‑13 and the Venezuelan criminal organization Tren de Aragua. The administration coordinated with El Salvador to house detained gang members in that nation’s supermax prison. Several individuals were then placed on a commercial flight bound for San Salvador.
2.1 Boasberg’s Temporary Injunction
On January 15, 2024, Judge Boasberg issued an emergency stay (preliminary injunction) preventing the enforcement of the deportation. He grounded the flight, issued an oral order suggesting the plane be recalled to domestic soil, and later issued a written order to that effect.
- Oral Directive: Delivered in open court, the judge admonished, “Recall the flight immediately,” citing humanitarian and statutory concerns.
- Written Memorandum Order: Formalized in writing two hours after the hearing, the order repeated the injunction language but did not explicitly reference recalling in-flight planes.
2.2 Supreme Court Reversal
The Supreme Court granted an emergency administrative stay pending appeal, allowing the flight to proceed. In a 5‑4 decision, the Court held that Judge Boasberg’s extraordinary remedy was procedurally defective and likely exceeded the district court’s authority under the AEA and administrative law principles. The majority emphasized the exigent nature of immigration enforcement and the absence of statutory language authorizing recall of airborne deportation flights.
3. The Contempt Allegations: Legal Standards and Procedural Requirements
Criminal contempt is a prosecutorial tool available to courts to vindicate their authority when a party willfully disobeys a lawful and specific court order. Federal Rule of Criminal Procedure 42 governs summary and standard contempt proceedings.
3.1 Elements of Criminal Contempt
A conviction for criminal contempt requires proof beyond a reasonable doubt of three elements:
- Existence of a Clear and Lawful Order: The order must be specific, unambiguous, and within the court’s jurisdiction.
- Knowledge by the Accused: The party must have actual knowledge of the order’s existence and terms.
- Willful Disobedience: The defendant must have intentionally refused to comply without a valid excuse.
3.2 Importance of Written Orders
Precedent uniformly holds that only written orders, served upon the party, satisfy the requirement for a clear and binding directive. Oral orders—particularly those not memorialized in a formal written instrument—cannot form the basis for criminal contempt, as they lack the notice and finality mandated by due process.
“It is axiomatic that contempt cannot lie for disobedience of an oral statement which, without more, merely indicates the judge’s thinking at a particular stage of a proceeding,” wrote the Third Circuit in United States v. Wilson, 421 F.2d 165 (3d Cir. 1970).
4. Alan Dershowitz’s Critique: Vagueness, Enforceability, and Judicial Overreach
4.1 Vagueness of Boasberg’s Directive
Dershowitz’s central contention is that Judge Boasberg’s order lacked the precision required for contempt:
“There was no written order requiring bringing back these folks,” Dershowitz told Newsmax. “What I was always taught is you follow the judge’s written order.”
Because the written memorandum did not expressly command the recall of the in-flight deportation—a logistical and safety decision reserved for the executive branch—it cannot support criminal contempt charges.
4.2 Enforceability and Practical Impossibility
Dershowitz highlighted the practical impossibility of recalling a commercial aircraft mid-flight:
- Air Traffic Control Constraints: Coordinating a mid-journey rerouting involves multiple agencies (FAA, TSA, foreign aviation authorities) and raises safety concerns.
- Executive Prerogative: Decisions related to aircraft movement and foreign policy fall within the executive purview, not judicial command.
A requirement that is impossible to perform, or unauthorized by statute, cannot be the basis for contempt.
4.3 Judicial Overreach and Separation of Powers
By attempting to micromanage the executive’s immigration enforcement, Judge Boasberg arguably blurred the constitutional separation of powers. Dershowitz warned:
“He’s flexing his muscle. He will be reversed on appeal. The Supreme Court is not going to allow criminal contempt against an administration for violating as vague an order as was allegedly violated in this case.”
This clash underscores the tension between judicial oversight and executive authority, particularly in areas of national security and foreign affairs.
5. Political Ramifications: Impeachment Effort and Partisan Reactions
On the same day Dershowitz spoke out, Representative Brandon Gill (R‑TX) introduced articles of impeachment against Judge Boasberg, labeling him a “rogue judge” unfit for office. Gill’s resolution accused the judge of creating a constitutional crisis by thwarting the president’s “lawful efforts to deport violent illegal alien gangsters.”
5.1 Congressional Oversight of the Federal Judiciary
While impeachment is a Constitutionally prescribed mechanism for removing federal judges, it is exceedingly rare. Since 1789, only eight judges have been impeached by the House, and just four removed by the Senate. Grounds typically involve high crimes, corruption, or inability to perform judicial duties—not mere legal disagreement.
5.2 Partisan Implications
Democratic lawmakers and legal experts have condemned Rep. Gill’s resolution as a politically motivated response to an adverse judicial ruling. Critics argue that using impeachment to retaliate against judicial discretion undermines judicial independence and sets a dangerous precedent for executive and legislative interference in court proceedings.
6. Broader Legal and Constitutional Implications
6.1 Contempt Powers as a Check on Judicial Authority
Contempt powers serve to safeguard the court’s dignity and the rule of law. However, improper use can transform a remedy into a weapon, chilling legitimate executive action. By challenging the enforceability of Boasberg’s order, Dershowitz highlighted the need for clear boundaries:
- Precision in Judicial Commands: Courts must draft orders with the clarity necessary for compliance, particularly when national security or foreign relations are at stake.
- Respect for Executive Functions: Immigration enforcement and aircraft operations reside primarily within executive expertise.
6.2 Separation of Powers and International Relations
This dispute speaks to the delicate balance between branches:
- Judicial Review vs. Executive Discretion: While courts have the authority to review executive actions for legality, they cannot supplant executive judgment on operational matters.
- Diplomatic Considerations: A sudden recall of a deportation flight can strain international agreements, highlighting the imprudence of mid-air judicial mandates.
Conclusion
Alan Dershowitz’s bold forecast that Judge Boasberg’s contempt effort will falter rests on solid legal foundations: the requirement of a specific written order for contempt, the impracticality of recalling airborne planes, and the constitutional separation of powers. As appeals progress, this case will test the limits of judicial authority and underscore the enduring tension between branches of government in immigration and national security matters. Whether through appellate reversal or legislative intervention, the rule of law demands precision in judicial directives and restraint against overreach.
Adrian Hawthorne is a celebrated author and dedicated archivist who finds inspiration in the hidden stories of the past. Educated at Oxford, he now works at the National Archives, where preserving history fuels his evocative writing. Balancing archival precision with creative storytelling, Adrian founded the Hawthorne Institute of Literary Arts to mentor emerging writers and honor the timeless art of narrative.