Facing a criminal contempt probe, President Donald Trump’s administration has been seeking legal shelter. Trump-appointed appellate judges have been providing it.

The latest example came Tuesday, when a divided three-judge panel granted what it admitted was the government’s “extraordinary” request for relief, to terminate contempt proceedings stemming from last year’s deportation flights to a Salvadoran terror prison.

According to D.C. Circuit Judge Neomi Rao’s majority opinion, it’s not Trump officials who might be faulted for possibly ignoring U.S. District Judge James Boasberg’s orders in their quest to hurry migrants to El Salvador under the president’s legally dubious invocation of the 18th-century Alien Enemies Act. Rather, per Rao and fellow Trump appointee Justin Walker, it’s Boasberg’s attempt to understand what happened that risks upending the constitutional order.

Rao’s ruling bemoaned the “widening gyre” of the Obama-appointed Boasberg’s “inquest,” as she put it, calling his fact-finding effort “a clear abuse of discretion.” She said the administration already cooperated enough with the judge, by naming now-former Homeland Security Secretary Kristi Noem as the official responsible for the transfer of migrants to the notorious terror prison known as CECOT.

Thus, Rao wrote, “further judicial investigation is unnecessary and therefore improper.” What is proper, she wrote, is preventing Washington’s chief federal trial judge “from assuming an antagonistic jurisdiction that encroaches on the autonomy of the Executive Branch.”

Rao reasoned that Boasberg’s “intrusive” inquiry was a “legal dead end,” anyway, because, in her view, officials did not clearly violate his orders.

Yet, it’s the two Trump-appointed judges who overstepped, according to the dissenting panel judge, Michelle Childs. The Biden appointee observed that Boasberg was “just trying to understand” the facts, which may have included the government violating his orders. Doing so, she wrote, does not “suggest that the court wishes to intrude in the decisionmaking of the Executive Branch.”

Childs explained that fact-finding is needed to make a referral for a contempt prosecution.

“So, at this juncture, the Government’s separation of powers objection to the district court performing its obligations under the law is not an appropriate basis for the mandamus relief the Government seeks,” she wrote, referring to the extraordinary relief that the majority nonetheless granted on Tuesday.

Or, as Childs put it, the majority’s intervention “chooses the Government’s Hail Mary pass.” She questioned the majority’s foregone conclusion that there was no contempt here, writing that the panel was “cutting factfinding at the knees.” She said she refused “to be pulled into the lagoon with them.”

For all its sharp debate over the separation of powers and judicial integrity, spanning more than 100 pages, Tuesday’s panel ruling might not be the last word. The full D.C. circuit can weigh in, as can the Supreme Court. It remains to be seen what happens on any further review.

Zooming out, even if Boasberg were to refer the matter for a contempt prosecution, this Justice Department won’t be charging any Trump officials, and the president can pardon anyone who would be at risk of prosecution during a future administration.

Notably, under the federal criminal procedure rules, the judge would appoint another attorney to prosecute the matter if the government declines to do so. But it’s worth keeping in mind that Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh have questioned that appointment authority in an unrelated case. They may have more company if the issue comes to the high court in a contempt prosecution against Trump officials. That’s a hypothetical scenario at this point, but expect this administration to keep challenging any attempts to pursue contempt consequences, or even the possibility of such consequences.

On that note, it may be that Boasberg’s factual inquiry is as far as the matter goes, at least in terms of potential prosecution. But Tuesday’s ruling is the latest reminder that judges sympathetic to the administration don’t want it to come close to that point.

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