The Trump administration continues to insist it didn’t defy a federal judge’s order when it failed to turn around planes carrying Venezuelan migrants to El Salvador.
U.S. District Judge James Boasberg is weighing whether the government defied his order blocking the deportations of alleged gang members who hadn’t been afforded due process. It’s a case that’s become a flashpoint in the rising tension between the administration and federal courts.
In a 14-page document filed late Tuesday night, the Justice Department spelled out before Boasberg why it didn’t turn around the two flights carrying alleged Tren de Aragua gang members despite his verbal order to do so.
“These removals both complied with the law and safeguarded Americans against members of a foreign terrorist organization. The Government will continue to defend the removals before this Court and, if necessary, on appeal challenging this Court’s two injunctions issued on March 15,” the filing reads. It’s signed by Attorney General Pam Bondi and other senior DOJ officials.
The government attempts to thread the needle regarding Boasberg’s directive, arguing that it didn’t “remove” any of the migrants after he entered his order and that it “complied with the Court’s injunction with respect to the two flights at issue” because it didn’t formally remove anyone after 7:25 p.m. Saturday, though acknowledging it “did not order any removal flights to return to the United States.”
Boasberg asked Drew Ensign, the attorney for the Justice Department, if he understood the verbal orders to turn the plane around and if Ensign understood if the order was immediate. Ensign said he did. But in its appellate court filing, the DOJ continued to argue that Boasberg’s order was unclear and insufficient to be binding, asserting it “failed to satisfy the requirements for issuing a binding injunction “because Boasberg and the court didn’t state “the reasons why it issued” the injunction.
“It is well-settled (in law) that an oral directive is not enforceable as an injunction,” the filing alleges.
The DOJ later in the filing argues that once the flights were out of U.S. airspace, they were “military matters” and President Trump has the power to order military flights wherever he wants.
“DOJ cites state secrets privilege”
On Monday, the administration invoked a state secrets privilege and refused to give Boasberg any additional information about the deportations.
Boasberg, the chief judge of the federal district court in Washington, has asked for details about when the planes landed and who was on board, information the administration asserts would harm “diplomatic and national security concerns.”
Government attorneys also asked an appeals court on Monday to lift Boasberg’s order and allow deportations to continue, a push that appeared to divide the three-judge panel.
Circuit Court Judge Patricia Millett said, “Nazis got better treatment under the Alien Enemies Act than has happened here,” referring to the way Nazis detained in the U.S. during World World II were processed compared to the Venezuelan immigrants deported to El Salvador this month under the same statute.
“We certainly dispute the Nazi analogy,” government attorney Drew Ensign responded during a hearing of the U.S. Court of Appeals for the District of Columbia Circuit.
Millett noted that during World War II, Nazis were put before hearing boards under Franklin D. Roosevelt’s administration, and the Trump administration has conceded the alleged Tren de Aragua gang members deported to El Salvador and detained in a maximum security prison didn’t have the chance to appear in court.
Millett is one of the three appellate judges who will decide whether to lift a March 15 order temporarily prohibiting deportations under the Alien Enemies Act of 1798. They didn’t rule from the bench Monday.
Judge Justin Walker, who also sits on the appeals court, appeared open to the administration’s argument that the migrants should be challenging their detention in Texas rather than the nation’s capital. The third judge on the panel didn’t ask any questions.
The administration has transferred hundreds of Venezuelan immigrants to El Salvador, invoking the Alien Enemies Act for the first time since World War II. The law has only been invoked three times throughout American history: during the War of 1812, World War I and World War II.
Also on Monday, attorneys representing the Venezuelan government filed a legal action in El Salvador to free 238 Venezuelans who are being held in a Salvadoran maximum-security prison after the U.S. deported them.
The Alien Enemies Act allows noncitizens to be deported without the opportunity to go before an immigration or federal court judge. Mr. Trump issued a proclamation calling the Tren de Aragua gang an invading force.
Ensign argued that Boasberg’s ruling was an “unprecedented and enormous intrusion upon the powers of the executive branch.”
“The president has to comply with the Constitution and the laws like anyone else,” said Millett, who was nominated by Democratic President Barack Obama in 2013.
Judge Justin Walker, whom Mr. Trump nominated in 2020, seemed to be more receptive to the administration’s arguments based on his line of questioning. Walker pointed to the government’s assertions that the plaintiffs should have filed their lawsuit in Texas, where the immigrants were detained.
“You could have filed the exact same complaint you filed here in Texas district court,” Walker told American Civil Liberties Union attorney Lee Gelernt.
“We have no idea if everyone is in Texas,” Gelernt said.
Walker also pressed the plaintiffs’ lawyer to cite any prior case in which a judicial order blocking “a national security operation with foreign implications” survived appellate review.
Gelernt accused the administration of trying to use the law to “short circuit” immigration proceedings. Plaintiffs’ attorneys had no way to individually challenge all the deportations before planeloads of Venezuelans took off on March 15, he added.
“This has all been done in secret,” Gelernt said.
Judge Karen LeCraft Henderson, who was nominated by Republican President George H.W. Bush in 1990, was the third judge on the panel. She’s the one who didn’t ask any questions during a hearing that lasted roughly two hours.
Boasberg, also an Obama nominee, ruled that immigrants facing deportation must get an opportunity to challenge their designations as alleged gang members. He said there is “a strong public interest in preventing the mistaken deportation of people based on categories they have no right to challenge.”
“The public also has a significant stake in the Government’s compliance with the law,” the judge wrote.
Mr. Trump and his allies have called for impeaching Boasberg.
In a rare statement, Supreme Court Chief Justice John Roberts said “impeachment is not an appropriate response to disagreement concerning a judicial decision.”
Just after midnight Monday, Mr. Trump posted a social media message questioning Boasberg’s impartiality and calling for him to be disbarred.
contributed to this report.
