The administration is materially weakening its litigating position in the standoff over Venezuelan nationals.
The administration is materially weakening its litigating position in the standoff over Venezuelan nationals.
L ast evening, I posted about the Trump Justice Department’s last-minute request that a federal judge cancel a hearing he’d scheduled to inquire into whether the administration had knowingly violated the order he had issued Saturday. That court order directed the administration to suspend its deportation of over 200 Venezuelan nationals and turn around any deportation flights that were already in the air. Despite this directive, the administration transferred the Venezuelans from Texas to El Salvador, whose government is being paid to detain them.
Chief Judge James Boasberg, an Obama appointee to the federal district court in Washington, D.C., declined to cancel yesterday’s 5 p.m. hearing. As it had foretold, the Justice Department refused to answer many of Judge Boasberg’s pointed questions about the apparent violation of his Saturday order. A prosecutor, Abhishek Kambli, instead repeated the administration’s incoherent party line that (a) it did not violate the judge’s order and (b) it will not, on purported “national security” grounds, reveal any information publicly about the timeline of when the flights took off and landed.
Outside the courtroom, in public statements — including by Attorney General Pamela Bondi — administration officials more brazenly pronounce that Judge Boasberg is trying to usurp the president’s authority to conduct foreign policy, is siding with terrorists over the American people, and had “no jurisdiction” to issue the order with which the administration implausibly insists it complied.
As a lower court judge, Judge Boasberg is bound to follow superior court rulings. These include the Supreme Court’s post–9/11 jurisprudence, which gave even alien enemy combatants detained outside the U.S. an opportunity to mount court challenges to the commander in chief’s determinations about their status (i.e., their eligibility to be treated as detainable and transferrable under the laws of war the president had invoked based on a congressional authorization). And note: Boasberg has not ruled against the president on the merits; the administration is trying to evade litigation of the merits.
The Justice Department appears to be taking positions that will be startling to DOJ veterans, in whom the duty of candor to the court was once paramount (not just for its own sake but because good prosecutors know that if they lose the trust of the judges, they lose everything).
At about 6:45 p.m., at the Saturday teleconference, Judge Boasberg unambiguously directed the Justice Department that it was not to transfer any Venezuelan detainees out of the country. He added that if any deportation flights had already taken off, the detainees were to be returned to the United States forthwith, “however that’s accomplished — whether turning around the plane or not. . . . This is something you need to make sure is complied with immediately.”
At that point, according to a New York Times analysis of flight data, two of the flights were already in the air, while the third had not yet taken off. In the end, no flights were turned around, and all three planes ferried detainees to El Salvador.
The administration, however, is now taking the position–– in conjunction with claiming that it did not violate the judge’s order — that the written memorialization of Boasberg’s order, docketed at 7:26 p.m. on Saturday, is the only one that was binding, and that it did not include the admonition to turn around any planes already aloft. The upshots of this claim, apparently, are that (a) the planes may have passed out of U.S. airspace in the 41 minutes between the oral order and the written summary; (b) the omission in the written summary order of Boasberg’s oral directive to reverse any flights absolves the administration of not turning any flights around; and (c) the alien detainees on the third flight, which had not yet taken off, are unconnected to the case involving Venezuelans that is before the court.
According to the reported data, the first flight was over Mexico when the judge issued his order, and the second was over the Gulf of America (the name by which the president has rebranded the Gulf of Mexico). The flights were not turned around even though they did not head directly to El Salvador — both making a stop in Honduras (at 11:39 p.m. and 11:43 p.m.) before taking off again and landing in El Salvador shortly after midnight Sunday. The third flight departed Texas at 7:36 p.m. — i.e., ten minutes after the written summary of the judge’s order was docketed.
It is a standard practice for written versions of judicial orders to be docketed after they are issued. Nevertheless, the oral order has the force of law at the time issued. Indeed, district court judges preside over trials and hearings, and thus give oral orders all the time; if there were not compliance with those orders at the time they are issued — i.e., if they were deemed inoperative until subsequently (if ever) memorialized in writing — there would be chaos.
There is a transcript made of court proceedings, so there will virtually always be a written version on the court record of the oral order, even if the court does not subsequently docket a separate written summary of the oral order. Moreover, if there is an omission from the written summary of an oral directive, and the government believes that omission may be significant, it is the prosecutor’s duty to clarify with the court whether the omission is inadvertent or meaningful. The court’s failure to include the terms of an unambiguous order in a later written summary does not authorize the government to ignore those terms.
Signaling awareness that its position is untenable, the Trump DOJ is hedging its bets. The Times reports that it has submitted a letter to the D.C. Circuit appeals court asking it to remove the chief judge of the district court from the case because he has allegedly engaged in “highly unusual and improper procedures.”
The appeals court — which (as I noted yesterday) already has a toe in the water of these proceedings because the Trump DOJ filed an emergency appeal of Boasberg’s order suspending the deportations for 14 days — will surely give the administration’s latest submission the back of the hand. Boasberg is a widely respected judge, who was previously appointed by U.S. Chief Justice John Roberts as a judge of the Foreign Intelligence Surveillance Court (and later its chief judge) and as the chief judge of the U.S. Alien Terrorist Removal Court.
And to repeat, Boasberg has not, to this point, ruled against the administration on the central issue: Does the president, under the Alien Enemy Act of 1798, have the authority to unilaterally order the removal of a class of aliens from the United States, without judicial review, when the nation is not at war and the courts are open and functioning, on the rationale that the president has concluded — with no input from Congress — that the nation has been invaded and that the Venezuelans are members of a criminal gang (Tren de Aragua) that he has designated a foreign terrorist organization?
Boasberg is likely to find that the answer to that question is no (and I believe it’s the only answer he could give because he is bound by the aforementioned higher court precedents — which I’ll discuss in a separate post). But it is ridiculous to claim that he is trying to usurp the president’s power.
Again, the higher courts Boasberg must follow have held that even when Congress has authorized the use of military force against a foreign power (the functional equivalent of declaring war against an enemy), captives that the executive branch alleges are both (a) terrorists and (b) operatives of the alien enemy identified by Congress, have (c) a right to challenge the executive’s allegations in court.
Here, the Trump administration is in a far worse posture. Congress has not declared war or authorized military force against Venezuela or Tren de Aragua. Congress, further, has not authorized summary detention and removal of terrorist detainees without court proceedings, and even if it tried to do so it would run headlong into the Supreme Court’s post–9/11 cases.
Unlike al-Qaeda (the principal target of the post–9/11 Authorization for Use of Military Force — AUMF), Tren de Aragua has long been regarded as an international criminal enterprise that has never been prosecuted on terrorism charges in the U.S. The finding that it is a foreign terrorist organization was unilaterally made by the Trump administration. That doesn’t mean it isn’t true; it means that the president is relying solely on his own power in an area — detention and disposition of detainees held outside the civilian court system — that the courts have admonished should be addressed, when practicable, by a collaboration of the president and Congress.
Unlike the AUMF that authorized President Bush’s detentions and transfers of al-Qaeda detainees, President Trump is relying on the Alien Enemy Act (AEA) that principally deals with declared wars and has been invoked only three times since its 1798 enactment — the War of 1812, and the First and Second World Wars, all declared by Congress. To the extent the AEA calls for detention and deportation in the event of an enemy “invasion” or “predatory incursion,” the statute refers to nationals of a “hostile nation or government” — not a terrorist organization — and is obviously meant for exigent circumstances that are the functional equivalent of a declared war but arising before Congress has a chance to declare war. In this instance, not only are we not at war with Venezuela; tens of thousands of the Venezuelans Trump portrays as having “invaded” the U.S. were invited into the country by the Biden administration (which flew them in by the plane load). That this was lawless and reckless doesn’t alter the fact that Trump will have a difficult time proving an “invasion” based on an influx aided and abetted by the U.S. government.
I’d be very surprised if the judiciary rules that the president can take these actions without specific congressional authorization (as opposed to the administration’s extravagant interpretation of the AEA). I am quite confident, though, that even if Trump’s interpretation of the AEA is upheld, it will happen only after extensive litigation, at the end of which, in order to go the president’s way, the Supreme Court will have to distinguish or reverse some of its post–9/11 cases.
The Trump administration, led by the Justice Department, is materially weakening its litigating position by stonewalling a judge while taking the position that it need not respond to the courts, or consult with Congress, because the president says so.
Judge Boasberg has given the administration until noon today to file a submission, ex parte and under seal if necessary, providing a direct, truthful answer to the question of whether Venezuelan detainees were deported after he issued his order in court, including whether the administration allowed the flights to continue to El Salvador after it was aware of the judge’s order to turn the flights around and return the detainees to the United States.
Meantime, Boasberg intends to hold a hearing on the merits of the president’s AEA rationale for deportations on Friday; and in the D.C. Circuit, counsel for the detainees must respond today to the administration’s emergency appeal (filed over the weekend), with the Justice Department due to respond tomorrow. I do not believe there are any scheduled proceedings on the administration’s request that the Circuit remove Chief Judge Boasberg from the case.