D.C. Circuit’s Argument Over Criminal Contempt Inquiry

The district court in this case has decided to press forward with a criminal contempt investigation, even though three judges on this court have already concluded that the TRO did not clearly and specifically prohibit the government's conduct.

But even setting that aside, there is no basis for any further investigation in this case, because the district court has already found probable cause that the government willfully violated the TRO, and it already has all the information that the district court previously said that it needed in order to make a referral.

Despite all of this, including the Supreme Court's vacatur of the TRO, the district court is now investigating the mental state of senior government officials.

It has demanded that the government's litigation counsel testify in a quasi-grand jury, and it has even invited the ACLU to participate in the court's criminal investigation of the government.

Under these extraordinary circumstances, mandamus is warranted because the district court's investigation is unlawful, unnecessary, and futile.

This court-

Mr. Shumate

Yes.

Um, this case has been before the en banc court before.

Last November, we considered an en banc petition regarding another mandamus petition regarding these same contempt proceedings.

And when we resolved that prior petition, a majority of the active judges of this court opined that the district court could proceed with its contempt inquiry, and it had done nothing improper.

After our mandate issued, this case was back before the district court for just three weeks before the government filed the instant mandamus petition.

So it seems to me that for you to prevail in this case, you would have to identify something that happened in those three weeks that was clear error by the district court that was new and different from the claims that you previously made and that we implicitly rejected.

And if your problem is with the procedure that he conducted, it seems that that would have to be something clearly erroneous and different from what we anticipated when a majority of the judges here said that the inquiry could proceed.

So I guess my question is, what is it that happened during those three weeks that justified the government coming back so quickly with another mandamus petition?

Well, thanks for the question, Your Honor.

What's different is that the government identified the decision-maker.

That was what was at issue in the prior mandamus proceeding.

A number of judges on this court said it was acceptable for the district court to ask for that information.

The government then provided that information, identified Secretary Noem as the decision-maker.

And that was-

But do we have to just accept what you say? That you just say that there's a particular decision-maker who, um, put forward that they were responsible for an activity, and the gov- the district court judge is supposed to just accept that at face value?

Well, the district court has not suggested that that Secretary Noem was not the decision-maker.

The whole basis of the further investigation-

But maybe there's other facts that the district court needs to find out about in terms of, um, being inquisitive about whether the, uh, order was actually violated.