Yves here. This post contains informative details on the ongoing row between Judge James Boasberg and the Department of Justice, which defied his order in a deportation of Venezuelans for the planes containing the detainees en route to El Salvador return to the US. The lawlessness of this Administration is stunning. First, as Judge Napolitano, who was a judge, has pointed out, the notion that Boasberg’s order was no longer operative because (per the unverified assertion) the planes were in international air space, is laughable. The entire chain of command, along with the pilots and crew on the planes, were under US jurisdiction. Second, the idea that a verbal order somehow does not count is also a joke.
Trump being Trump, he has attempted to escalate by threatening Judge Boasberg with impeachment. An obliging stooge in the House, Brandon Gill, has filed articles of impeachment. That comes after Chief Justice John Roberts having cleared his throat (Reuters called it a rebuke) after Trump made that threat, to stress that the way to handle unfavorable decisions is not to seek removal of the judge but to appeal.
NBC News provided an update of the duel between the Boasberg and the DoJ after the time of the filings discussed below. Sadly it appears the judge has fallen for the DoJ position on jurisdiction, although it is possible he is casting his net wider than necessary (as in flight details) to catch acts of perjury:
In his ruling Monday, Boasberg said that if the Justice Department “takes the position that it will not provide” more details about the flights “under any circumstances, it must support such position, including with classified authorities if necessary,” and that it could file those arguments under seal, if necessary.
The Justice Department declined to do so, noting it has appealed Boasberg’s earlier ruling. “If, however, the Court nevertheless orders the Government to provide additional details, the Court should do so through an in camera and ex parte declaration, in order to protect sensitive information bearing on foreign relations,” the filing said.
Boasberg did just that a short time later, directing the government to provide him with “the following details regarding each of the two flights leaving U.S. airspace before 7:25 p.m. on March 15, 2025: 1) What time did the plane take off from U.S. soil and from where? 2) What time did it leave U.S. airspace? 3) What time did it land in which foreign country (including if it made more than one stop)? 4) What time were individuals subject solely to the Proclamation transferred out of U.S. custody? and 5) How many people were aboard solely on the basis of the Proclamation?”
Let us not forget that anyone on US soil has due process rights per Article 5 and 14 of the Constitution. These Venezuelans were merely charged. They have the right to respond to accusations and have the evidence on both sides weighed by a finder of fact, as in a judge or jury. But this Administration wants to make itself the decider of all rights in the US.
By Angry Bear. Originally published at Angry Bear
As Joyce Vance states, “that’s not how it works. If a judge is considering whether a party, especially the government, is in contempt of an order, the judge gets whatever information they need. Otherwise, it is contempt.”
Deportations: It’s not where it starts, it’s where it ends, Civil Discourse
Just ahead of the hearing scheduled for 5 p.m. Eastern in the case we discussed last night, the Justice Department asked Judge James Boasberg to vacate the order setting the hearing. The government didn’t want to have to show up. Their reason? They wrote they weren’t in violation of the two temporary restraining orders (TROs) he issued over the weekend, the first for the five named plaintiffs in the case and the second for the remainder of the group subject to deportation. DOJ also told the Judge that “the government is not prepared to disclose any further national security or operational security details.”
In my experience, that’s not how it works. If a judge is considering whether a party, especially the government, is in contempt of an order, the judge gets whatever information they need. Otherwise, contempt.
But that’s not how the government played it today. When Judge Boasberg indicated he would hold the hearing nonetheless, they appealed—sort of.
The government had already taken an appeal of the two temporary restraining orders the court entered. Today, they filed what’s known as a Rule 28(j) letter with the Court of Appeals in that case. This rule provides parties with a vehicle for letting the court know about new authority, for instance a new Supreme Court case that is handed down after they brief or argue their case. Instead, they used it to demand that the hearing be canceled and a new judge be assigned to their case.
It’s not really a motion, so there is nothing for the Court of Appeals to grant (or deny) here. Not exactly stellar lawyering. The government argued that “the district court may force the government to disclose sensitive national security and operational security concerns or face significant penalties from the court. The Government cannot—and will not—be forced to answer sensitive questions of national security and foreign relations.”
Let’s take that apart. For one thing, the government and its foreign ally, El Salvador’s president, have been bragging about these deportations all over social media, including with video of detainees being forced off the planes in stress positions. The flight information is public. So it’s difficult to discern what’s sensitive here. In any event, courts, as Judge Boasberg pointed out during the hearing, are capable of taking in sensitive information out of the public eye and even classified information in SCIFs, something that happens frequently, especially in Washington, D.C. The only real takeaway from the government’s arguments on paper and in the hearing was that they really didn’t want to be there.
Pro lawyering tip: Telling a judge the questions he wants answered are “flagrantly improper” when contempt allegations are on the table is a strategy that will make even an even-keeled judge like Judge Boasberg still more intent on getting to the truth.
This letter from DOJ to the court is a clear expression of the administration’s mistaken belief that the president is more powerful than the other branches of government rather than a co-equal sharer of power as envisioned by the Founding Fathers. This administration continues to say the quiet part out loud, and the quiet part is that Donald Trump wants total control—the government’s lawyer told the Judge today that Trump’s decisions, once the plane was outside of U.S. territory, could not be reviewed by a court. Trump wants to be a democratically elected president who owes obedience to the law and service to the people in name only.
When the Judge took the bench, he confirmed, in a deceptively mild manner, that the Court of Appeals hadn’t granted the request to suspend the hearing. Lee Gelernt, the head of the ACLU’s Immigrants’ Rights Project, argued for the plaintiffs. Abhishek Kambli, a DOJ lawyer and member of the Federalist Society who was previously a high-ranking official in the Kansas attorney general’s office, represented the government. The Judge clarified the reason for the hearing—it wasn’t about the merits of the TROs he’d entered over the weekend. It was “solely for fact-finding about the government’s adherence with orders,” in other words, whether the government had violated them and should be held in contempt.
The Judge began to ask questions. First, he wanted to know whether the five named plaintiffs in the case were still in the United States. Kambli responded, “Yes, that’s what I’ve been told.” Perhaps it was just an expression, but in context it was hard to read it as anything other than a lawyer being careful to make clear that anything he said in court was based on what the client, here the United States of America, told him. That’s unusual for a government lawyer. If I’d had any doubts about the client’s candor, I wouldn’t have gone into court. But we’re now in an era where Justice Department lawyers are either Trump loyalists or forbidden by AG Bondi’s new policy from declining to sign motions or appear in court when directed to. So, the court gets, “that’s what I’ve been told.”
The Judge also had questions about the timeline and numbers of people involved. But when he asked how many planes departed Saturday carrying Venezuelans being deported under Trump’s proclamation, the response was, “those are operational issues and I’m not authorized to provide” that information. Kambli told the Judge, “I am authorized to say” that no flights took off after the written order issued by the court and that the timing of two flights plaintiffs had said they were concerned about had “no material bearing” on the situation. And that, Kambli apparently hoped, would be that. “That’s the only information I can give,” he said, citing national security and diplomatic concerns.
There were a few upshots. One was that it became clear that the government’s position was that it was entitled to ignore everything the Judge said in court on Saturday—he expressly told them to turn any planes in flight around—and was only bound by the written order he issued after the fact. When the government insisted it couldn’t share the requested information with the Judge, he pressed them on the law, insisting that they could based on his experience as a judge on the FISA court (as we mentioned last night), and finally pointed out that even in the exceptional case where the government could withhold information from the court, they still had to make a strong showing as to why that was justified. The government didn’t offer anything along those lines here.
With the appearance of a careful judge making his record before he disciplines a recalcitrant party, the Judge then gave the government until noon tomorrow to file answers to a series of questions he specified or explain why they weren’t providing answers.
Then came an interesting moment, the only time during the hearing where Judge Boasberg actually used the word contempt, where he asked Kambli two additional questions about when Trump signed the proclamation that allegedly triggered his ability to deport members of the Tren de Aragua gang and how many people subject to deportation were in the U.S. His lead-in to the questions was to say that they didn’t relate to contempt, confirming, of course, that the earlier questions did and that the government was at risk.
By the time the hearing was over and the government had its marching orders from the court, the arguments they were making were also clarified:
- They didn’t have to obey the court’s oral ruling.
- Even if they did, they had obeyed it because the planes were beyond U.S. airspace before the court ruled, so the Judge didn’t have jurisdiction over the planes.
The Judge made the same point we discussed last night: that if the government disagreed with the court’s order, it should have returned the detainees to the United States and appealed it. The government’s response was that because the president is the commander-in-chief and he can direct military forces, he has Article II powers under the Constitution that are not subject to judicial review. That meant, Kambli said, that they were free to ignore the court’s order and continue the flights.
That was where the hearing ended up. The Judge got in a parting shot, saying he would hear from the government tomorrow, Tuesday, by noon and that “I will memorialize this in a written order, since my oral orders apparently don’t carry much weight.”
All of this flies in the face the way government lawyers conduct themselves in court. The government complies with court orders, even ones it disagrees with, in both the letter and the spirit. Any challenges to them are made in court. It’s hard to overstate how much of a change this administration’s approach is, specifically when it comes to the level of (dis)respect shown for a judge’s order.
What shouldn’t get lost here is that this case also involves horrific human rights abuse. The Trump administration’s argument is that these are bad people. Some of them may be. But they have been put in custody in one of the worst prisons in the world at the expense of American taxpayers instead of simply being deported to their home country. They received no process; they have little recourse.
So, for instance, if a U.S. citizen were swept up in the arrests, they would have had no opportunity to establish they’d been wrongfully detained. The result would be not just deportation but imprisonment in a foreign country in harsh conditions if this is permitted to stand. No court has confirmed the government’s assertion that these detainees are all dangerous gang members. The process of using tattoos to determine gang membership, which the government used for at least some people, is far from precise, and people caught up in this have no chance to challenge the assessment. Trump asked for gang members, and ICE delivered.
This is where the Trump administration has started, but it’s likely not where they hope it will end. For many Americans, deporting violent gang members will sound like a good idea, constitutional niceties be damned. They are the perfect group of people for a government test case. As lawyers like to say, good facts make good law, and what better justification for questionable deportation than getting dangerous people out of the country.
But it’s important to understand that we protect everyone’s rights in this country, not just people we like. And it couldn’t be clearer why. It’s a steep slippery slope from the alleged gang members (no court has confirmed that designation) to a noted surgeon (the Boston case) and then onto others. If the law doesn’t apply, then the government is free to violate people’s rights at will. And when this case gets to the Supreme Court, as it will, if the administration wins, then it’s pretty much open season. Anything goes.
It is a bleak moment in history.
I think that statement is an illusion.
I lost the history tracks, and I am not a lawfare expert, but the way I recall several Gitmo cases under Obama, is that the US Constitution only applies to US Citizens on US soil (with the border not being considered as US soil).
Craig Murray makes a similar assessment, and says Julian Assange got a plea deal because US Justice couldn’t/wouldn’t guarantee his First Amendment rights.
Gitmo is off point. The US has the right to operate Gitmo but Cuba retains sovereignity. That is why the US hearts Gitmo. It is not the US from the perspective of our laws. See for instance:
https://en.wikipedia.org/wiki/Guantanamo_Bay_detention_camp.
Regarding due process rights at the border, a ton of links below from sources with more US legal expertise than Craig Murray beg to differ: https://www.google.com/search?client=firefox-b-e&channel=entpr&q=due+process+rights+at+the+border
The routine abuse of those rights in no way means the actions are legally permissible. This is raw “might makes right” against people with no power.
I’m curious why you think Gitmo is off-point. The chain of command down to the airplane(s) Saturday was entirely under US jurisdiction even if outside US territory. Is that not also true of the chain of command into Gitmo?
This is shifting the grounds of argument by a country mile. That is bad faith and a violation of our written site Policies. Please read them before commenting again. They state that commenting after having been instructed to read the Policies and evidencing you have not done so or have chosen to run afoul of them again will lead to blacklisting.
The point made by marcel above was to question the extent of 5th and 14th Amendment rights, since they confer them on a territorial basis.
That has absolutely nothing to do with the reach of judicial orders with respect to members of the US government who are parties to litigation or under the supervision and control of those parties.
Better trolls, please.
Apologies for the misunderstanding.
My point was only that the “anyone” from your statement is restricted to “any US citizen”, so foreigners don’t have such due process rights.
But I agree that has nothing to do with the grist of the article about the power fight between judicial order and the US government
Bill of Rights makes no restriction of its applicability other than “the people”, so due process requirement covers aliens. Territorial restriction is more complex, legal US territory covers American ships, planes, embassies, and the status of Guantano is interesting, as I do not think the inmates there could appeal to Cuban courts, perhaps details of Cuban-American lease contract could be used to decide properly. But there is indeed a precedent making SCOTUS decision, which properly should give legal authority there either to US courts or to Cuban ones.
But now we have a concept of law-free zones. Like take persons out of the country on a plane and toss them down, so once outside the plane they enjoy no legal protection whatsoever.
It looks like a clear contempt case. The argument that when the plane leaves the border, it is no longer under federal jurisdiction is specious at best. According to the Tokyo convention, the law of the nation in which the plane is registered apply over international waters. This would mean that it does not matter when the plane crossed the border – the judge’s order applies over international waters, therefore the government had ample time to comply with the order and turn the planes around. The argument that the oral order is not valid is absurd.
I suspect that the government will lose the case.
However, the people who got deported to Hell are unlikely to be returned to the US – and there is very high probability that there are at least a few of them that have 0 affiliation with any Venezuelan gang. Imagine, one day you are buying a sandwich at Subway, the next your head is being shaved in a high security prison in El Salvador. If the judiciary fails to hold the line, this could happen to any of us in the US.
I’m willing to bet that the majority if not all of the deportees have zero affiliation with the mentioned Venezuelan gang. I’ll bet the majority if not all do have tattoos. There was no due process afforded the men herded onto and off of that plane – they are simply labeled ‘gang member’ so that no one sympathizes with them – similar to calling someone/anyone ‘terrorist’ – both words mean ‘very bad’ so, you observers, curb your sympathy. Quite a brutal display – one black clad black masked guard per detained, bent over, shackled non-human person. Remember that the US a few years ago separated children from their migrant parents, and were not able to ever find all of them. Who are these deported men? How can their relatives find them – and if found, get them out? The AP description of the prison reported that it does not release prisoners, ever. Truly a dystopian hell.
“Chief Justice John Roberts having cleared his throat (Reuters called it a rebuke) after Trump made that threat, to stress that the way to handle unfavorable decisions is not to seek removal of the judge but to appeal.” Wasn’t Roberts on the Court when it in affect decided it would not get involved in a President’s pink misting of innocent Americans? If so one might ask super hypocrite Roberts how those dead innocent Americans are to file an appeal? And if Roberts wasn’t part of that dark day of Supremes, Trump might still respond the Supreme Court allows him to pink mist not only the judge opposing Trump but also Roberts as well! And if Roberts doesn’t like the fact he got pink misted, well, I suppose he can always file an appeal.
Of course your comment also makes the point that Presidential resentment and defiance of the judiciary didn’t start with Trump. “Justice Marshall has made his decision, now let him enforce it.”
https://ncph.org/history-at-work/now-let-him-enforce-it-the-long-history-of-the-imperial-presidency/
Dick Cheney’s creative interpretations of the law were a major issue during the Dubya regime and as you say Obama did it too.
The Dems want to make this all about immigration but the much bigger issue is Trump’s zeal to weaponize government against opposing speech, something a lot of Dems actually favor. Here’s a story about Miriam Adelson giving 600 million to Trump and other politicians to bend our government’s actions in favor of a foreign power.
https://responsiblestatecraft.org/miriam-adelson-trump/
And the Dem party is heavily financed by still other billionaires with the same aim. What was that old Watergate phrase, “Follow the money”?
‘That comes after Chief Justice John Roberts having cleared his throat after Trump made that threat, to stress that the way to handle unfavorable decisions is not to seek removal of the judge but to appeal.’
Listening to him talk, I had the impression that he was dropping a ton of bricks on this idea of impeaching a judge because you disagree with them. Those Supreme Court judges are not stupid. They know that if they did not back up Judge James Boasberg, then it is only a matter of time until Trump comes after them on equally dubious grounds to make them do something that they do not want to do. They may be a mostly Republican-selected court of judges but that does not mean that Trump is their friend. I fully expect some sort of blow-up between Trump and the Supreme Court in the next four years. Blind Freddy can see it coming.
Trump to Evangelicals “This will be the last time you ever have to vote”…
Perhaps of interest, analysis from a law professor:
https://reason.com/volokh/2025/03/17/trump-administration-likely-violated-court-order-in-alien-enemies-act-case/
What confuses me is that there are two sets of plaintiffs. The first five weren’t on the planes sent to El Salvador, at least if you believe the Trump administration. So it is hard for me to understand how the Judge got from a narrow ruling to enjoin the administration from deporting them, to a broad one covering virtually any deported in the US. But I am not sure that is the case, either. The missing link is who are the second set, and were any of them on the planes?
An injunction is an equitable remedy, and equity extends beyond the soil of the US according to past court rulings. So in my mind the issue is, did the Judge abuse his discretion by extending the injunction beyond the actual parties in the case, or did he only enjoin deportations of those who actually sued?
No lawyer here, but I believe that Judge Boasberg certified as a class everyone who would be subject to the deportation order. That class may have many members.
You’re correct … i just read the Government’s Motion to Vacate:
https://storage.courtlistener.com/recap/gov.uscourts.dcd.278436/gov.uscourts.dcd.278436.26.0_1.pdf
Read down to page 24, section IV.
The key here is that the initial suit was raised on behalf of five plaintiffs. Somehow, the judge, rather than sticking to the issue of due process for those five, certified a broad class of anyone subject to the deportation orders if the AEA was the basis. Note that it also appears that he may have violated Federal rules of civil procedure. I am basing that on the government’s claim that the class was certified before the government could file a brief in opposition.
Just my opinion, but this looks like the best argument on the government’s side. In the US system, judges are not inquisitors with a broad fact-finding role. The parties to a lawsuit are supposed to drive the fact-finding. Judges are supposed to stick to rulings on the law.
Why in the world this Judge took it upon himself to turn a complaint from five defendants into a broad class action I have no idea. I assume he had some law on his side, but this looks to my amateur eyes as abuse of discretion. It really does to appear to be usurping the role of the executive to make immigration decisions.
The 137 who were actually deported may have had their due process rights violated, of course. However, under our system they should have appealed to a court for equitable relief separately from the five who did so. Blanket injunctions that exceed the scope of the parties actually asking for relief strike me as abuse of discretion.
Did the ACLU even ask for a blanket injunction, I wonder? Or did the Judge do that unilaterally?
Trump will likely win this on appeal, IMO.
Of course, the proper thing for the Trump administration to have done would to have been to not violate the order, maybe park the planes on the tarmac and turn them around to Gitmo or some other secure facility for the duration of the appeal process.
So two wrongs don’t make a right.
Not (currently) a lawyer here, and I haven’t read the pleadings, but this looks like a permitted Federal class action under FRCP 23. The request for certification of the class would be done by the plaintiffs. Paragraph (a) of the Rule provides the prerequisites, all of which look like they can be met in this case. The certification of the class would be under Rule 23(b)(2), which provides for injunctive relief on behalf of a class where “appropriate respecting the class as a whole”. Certification is to be done “at an early practicable time after a person sues or is sued as a class representative” (23(c)(1)(a)), and I can find no provision requiring the opponent (in this case the government) opportunity to file a brief in opposition. The certification order can be appealed (23(f)) but the appeals court can decline to hear the appeal.
So it looks like Rule 23 contemplates this type of action – the rapid certification of a class where injunctive relief is sought. And, where the sole remedy sought is injunctive relief, the judge does indeed act as the sole fact finder.
I foresee the government to essentially start ignoring the courts. Congress isn’t going to impeach anyone.
No lawyer here, but I believe that Judge Boasberg certified as a class everyone who would be subject to the deportation order. That class may have many members.
Of course this will be dismissed as crude hyperbole, but it looks to me that:
SCOTUS has made a mockery of democracy (Citizens United etc.) Congress is legally bribed, and the exec. is being run by kakistocrat-cronies and oligarchs who think that the “Constitution is just a goddamned piece of paper”. The law be damned!
As usual, I see DT apologists making sorry excuses for corruption.
To the DT supporters: don’t take it personal, the corruption is institutionalized. All three branches of govt are corrupt, there can be no real “checks and balances”. It is much too late for that.
What do we expect?
The only thing we can “hope” for is a full-blown “Constitutional crisis” will bring the issue to the fore and something positive can be done. (But of course, I don’t see any evidence to support that right now)
So, if it was a military plane carrying these people, judge’s order would have no standing (or whatever it’s called)? I’m not that sure on what happens if military starts detaining and deporting people by the direct order of supreme commander.
I 100% agree with Roberts (can’t believe I’m saying that, but strange times) – if Trump doesn’t like the court order, he needs to take it to a higher court. That being said, and with the caveat that I am no legal expert, and have a few problems with the article.
First is with the judge. I saw a little history on him from Kunstler yesterday, who is admittedly not the most reliable source and of course didn’t provide a link for the following bit of rather overheated rhetoric –
“The history of Judge Boasberg in particular presents a disturbing picture of a tool covering-up every act of the shadowy blob’s war against American citizens. Boasberg presided in the FISA court that fraudulently enabled the FBI’s Crossfire Hurricane operation to attempt ousting newly-elected Donald Trump in 2017, and the many RussiaGate pranks that followed. As chief judge of the DC District, he oversaw the Jack Smith Special Counsel op and all the cases associated with it, including the Mar-a-Lago raid and the J-6 case in Tanya Chutkan’s crooked court. Boasberg allowed the prosecution of J-6ers under the unlawful use of the corporate fraud obstruction statute, 18USC§1512c2, a.k.a. the Enron law. He presided over the trial of Ray Epps, the shady character recorded on video repeatedly urging J-6 protestors to “go into the Capitol.” Boasberg gave Epps a suspended sentence while grandmothers who merely “paraded” through the rotunda between velvet ropes that day got sent to jail.”
But I did find this from the AP which backs up what Kunstler said – https://apnews.com/article/trump-deportation-judge-boasberg-venezuela-supreme-court-ccc7e61ccf8e8062d7075b617c87cdb5
So Trump has a reason not to trust this particular judge, and it does make me wonder whether Boasberg might have deliberately tried to put Trump into a ‘gotcha’ situation. However, POTUS doesn’t get to decide unilaterally which orders to abide by and which to defy – that is for a court to decide on appeal.
Also, Trump has already said he’ll take it to the Supreme court and boasted that he’ll win (that may be a wee bit premature), and the article fails to mention that.
From the article at least, Boasberg seems to think the most important issue here is whether Trump is defying court orders. But the author of the article gets to the crux of it at the end – the important thing here isn’t whether you agree or disagree on Trump’s right to deport criminals, it’s that due process is being shredded, specifically habeus corpus. Greenwald had a great take on that a couple days ago – https://rumble.com/v6qso9y-system-update-show-424.html These alleged criminals are being sent straight to prison in El Salvador, where there is a rather murky arrangement to keep them there as long as the US is willing to pay for their confinement. Sure seems like a trial would be in order before throwing people into a cell indefinitely.
And lastly, the author also engages in some overheated rhetoric. It may be a bleak moment in history, but it is hardly unprecedented for presidents to attempt reshape the law according to their own whims, or flat out ignore it. Greenwald also discusses that at the same link above. I’m so old I remember W Bush getting in hot water for “torturing some folks”, as his successor put it so mundanely. This was clearly illegal and a gross breach of US and international law, but Bush trotted out John Yoo who had passed the bar and proclaimed it all AOK. Evidently all that’s needed is one lawyer to give a thumbs up in the face of decades of jurisprudence to the contrary. And of course as timbers noted above, Obama assassinated a teenage US citizen who wasn’t accused of any crime on his say-so alone. I don’t remember Barry even bothering to bring out some hack barrister to justify that one, and the establishment barely batted an eye.
So yeah, Trump is wrong to defy the courts like this, but I wonder where he got the idea that it was OK?
If I’m not mistaken, there’s no specific law against being a “gang member.” In order to be classified as criminals, they would need to be convicted of specific crimes by a court. I’ve also not been able to find any precedent in law for transporting them to a third party country for incarceration, even if they had actually been convicted of a crime, let alone to be incarcerated for an indeterminate period for something they haven’t been convicted of.