Alan Dershowitz predicts judge’s threat to appoint prosecutor over MS-13 deportation flights ‘won’t stand’

Noted attorney Alan Dershowitz predicted on Wednesday that a federal judge’s threat to appoint a special prosecutor to press criminal contempt charges against Trump administration officials was not going to be upheld.

United States District Judge Boasberg of the District of Columbia, an Obama appointee, issued the threat in an opinion released Wednesday, accusing the Trump administration of defying his March 15 injunction ordering the Trump administration to turn two planes carrying members of the Venezuelan gang Tren de Aragua (TdA) to El Salvador around, Politico reported. Dershowitz noted that Boasberg lacked the authority to force the Department of Justice to prosecute a criminal case, nor could he appoint a prosecutor.

“He’s threatened, essentially criminal contempt,” Dershowitz said. “What he said was, ‘Look, I said you gotta turn those planes back and you didn’t turn those planes back, some of them in the air, sure, but you could turn them back, and the others, one of them at least, was on the ground and you shouldn’t let it take off.

“The administration comes back and says, wait a minute, you said that orally, but then you wrote an opinion and in the opinion you didn’t say they have to be a brought back and we were taught law school, that when a judge renders two decisions, one orally and the other in writing, the subsequent written opinion governs, not the earlier oral opinion,” Dershowitz added.

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The Supreme Court ruled on April 7 that the Trump administration could use the Alien Enemies Act to deport members of TdA in a 5-4 decision. President Donald Trump invoked the legislation dating from the John Adams administration to speed up the deportation of gang members.

After relating a joke about God having a mental breakdown and thinking he was a federal judge, Dershowitz delivered observations about federal district judges.

“Federal judges think they are above the law and above morality. They think that, because they’re wearing robes, not all of them, I know a lot of them and most of them are very decent people,” Dershowitz said, going on to recount an incident involving his father, an Orthodox Jew suffering from Alzheimer’s, and a federal judge, during which the judge demanded Dershowitz’s father remove his hat.

“We’re gonna see this conflict between the judicial branch and the executive branch carry forward for the next several years, so I’m gonna make some predictions again,” Dershowitz said. “Judge Boasberg will not hold the Trump administration in contempt, and the Trump administration’s not gonna back away. It will assert the government’s secrecy, it will assert the government’s privilege. Ultimately, he will back away or he will issue some order that is that short of contempt, and that will be appealable, and the appellate courts will not give him the power to hold the president of the United States or the administration in contempt.”

“I think we’re gonna see these cases appealed, we’re going to see them appealed vigorously by the current administration.”

Upon taking office on Jan. 20, Trump issued several executive orders to address illegal immigration, including designating Mexican drug cartels, TdA, and MS-13, an El Salvadoran prison gang, as foreign terrorist organizations. The Trump administration released details on the ties Kilmar Abrego Garcia had with MS-13, including immigration court findings that he was a member of the gang.

“They’re not backing away, and I know the attorney general of the United States quite well, and I know the number two and number three person in the Justice Department. They’re not going to be cowed by a judge’s threatening them with contempt, even if they’re held in contempt, they’re not gonna be imprisoned, nobody is,” Dershowitz said. “And by the way, the judge already announced, he said I will hold these people in contempt, and if the Justice Department refuses to prosecute them for contempt, I will appoint a lawyer to be a special prosecutor to prosecute these people. That won’t stand, either. No!”

“Under the system of separation of powers, it’s the United States government that decides who to prosecute, not the judiciary. The judiciary doesn’t have the power to prosecute,” Dershowitz continued.

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