Justice Department lawyers representing the Trump administration were defiant in a federal court hearing Monday, declining to answer several of the judge’s questions and otherwise defending the administration’s conduct after immigration authorities appear to have violated the judge’s order.
The hearing concerned U.S. District Judge James Boasberg’s verbal order Saturday that planes being used to deport people under the Alien Enemies Act, a rarely used wartime power, be immediately returned to the United States.
The administration attorneys asserted they did not refuse to comply — even as they acknowledged ignoring a verbal order from the court.
On Saturday, the administration allowed multiple planes to land in El Salvador — the president of which has promised to throw deportees into a notoriously brutal supermax prison — hours after Boasberg issued an order pausing the deportations. In court on Saturday, the judge said, “This is something that you need to make sure is complied with immediately.”
At Monday’s hearing, administration lawyers said they didn’t consider the judge’s verbal order to be operative — and argued that a written, paragraph-long “minute order” later entered in the court docket superseded it. The minute order didn’t mention turning planes around.
“That’s a heck of a stretch,” replied Boasberg, the chief judge in the federal district court in D.C., after a Justice Department lawyer confirmed that the administration believed it could disregard his verbal order. (Verbal orders are, in fact, judicial orders.)
The Justice Department lawyers, Abhishek Kambli and August Flentje, also argued that Trump’s “inherent authority” regarding foreign policy and military decisions trumped the judge’s authority once the planes left the United States, even though Boasberg’s verbal order had addressed planes that were “in the air.”
Boasberg countered that his own authority did not end “at the airspace’s edge.”
Lee Gelernt, an ACLU attorney who addressed the court, said the question of the extent of Trump’s powers was a question for the appeals process, and that the administration’s claims about Trump’s power “gives them no basis for simply not complying with the order” from the district court judge.
Kambli and Flentje refused to answer some of the judge’s questions, saying they were “not at liberty” to discuss “operational issues” such as how many planes departed the United States Saturday carrying deportees who were subject to the president’s Alien Enemies Act invocation.
Trump invoked the Alien Enemies Act Saturday for only the fourth time in all of American history. The law gives the president power to imprison and deport non-citizens without due process during wartime. Trump claims the Venezuelan gang Tren de Aragua, which he’d previously designated a terrorist group, is actually “conducting irregular warfare” and working with the Venezuelan government to destabilize the United States through migration. The DOJ attorneys said Monday that some of Saturday’s deportees were removed from the U.S. under other authorities rather than the Alien Enemies Act.
Pressed by Boasberg about whether they couldn’t discuss the details because they were classified — he offered to turn off courtroom microphones and huddle privately with the attorneys — the Justice Department lawyers sought to avoid the question.
“All I can say is that I’m authorized to say what we said in the public filing and to the extent that there’s anything more, that’s not relevant, because we do believe that we complied with the court order, which is that no flights took off from U.S. territories after the written order,” one of the Justice Department attorneys said. (Poor audio quality on the court’s phone line made it difficult to differentiate the two DOJ attorneys.)
“That does not comply with my order,” Boasberg shot back, adding that his order was “broader than that. It’s not a question of ‘taking off’ from U.S. territory, as anyone who reads a transcript of the hearing knows.” He said the administration would have to provide a specific reason why it wanted to exclude information from court.
Boasberg didn’t issue any rulings, but set a noon Tuesday deadline for the administration to lay out its position in writing, as well as provide various facts the Justice Department lawyers said Monday that they couldn’t.
“I will memorialize this in a written order, since apparently my oral orders don’t seem to carry much weight,” Boasberg said.
The hearing punctuated the Trump administration’s increasingly aggressive position toward courts, which has raised fears that the administration will begin regularly ignoring court orders.
Gelernt said at one point that “I think we’re getting very close” to a constitutional crisis.
On Sunday, Salvadoran President Nayib Bukele, a Trump ally, mockingly wrote “Oopsie… Too late 😂” in reference to Boasberg’s order. Secretary of State Marco Rubio then reposted Bukele, and Elon Musk called for the impeachment of the judge.
Bukele also released a video showing the deportees being manhandled and sent to the notorious prison, known as the Terrorism Confinement Center, or CECOT.
Without due process, there’s no way to know whether the deportees were Venezuelan gang members or simply asylum-seekers or migrants who were not gang members at all, condemned by the Trump administration to be deported to another country’s prison for no discernable reason.
“Our [Immigrant Defenders Law Center] client fled Venezuela last year & came to [the] US to seek asylum,” Lindsay Toczylowski, the center’s co-founder, president and CEO wrote. “He has a strong claim. He was detained upon entry because ICE alleged his tattoos are gang related. They are absolutely not.”
Toczylowski added that the unnamed client “has been forcibly transferred, we believe, to El Salvador.”
“No court, or judge, or jury ever heard their case,” Dan McFadden, managing attorney at ACLU of Massachusetts, observed separately, referring to a picture of deportees in El Salvador. (The ACLU is among the groups fighting Trump’s Alien Enemies Act order.) “There was no appeal. Just a plane to a forced labor prison in El Salvador for whoever Trump said should go.”
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Even in the run-up to Monday’s hearing, the federal government was defiant, urging Boasberg to cancel the hearing “and de-escalate the grave incursions on Executive Branch authority that have already arisen.” (The judge declined.) The administration also asked an appellate court to reassign the case to another district court judge.
In his second term, Trump is pursuing an unprecedented power grab, asserting near-unlimited authority to fire federal workers, eliminate agencies created by Congress, and cut off (and even claw back) money already designated for spending under law. In turn, courts have checked the administration, ordering them to undo many efforts.