The federal judge who blocked Donald Trump’s deportation flights under the Alien Enemies Act appeared taken aback by arguments from Department of Justice lawyers claiming that his order from the bench could be ignored because it wasn’t written down.
“You’re telling me you felt you could disregard it because it wasn’t in the written order?” an incredulous U.S. District Judge James Boasberg asked during a hearing in Washington, D.C. Monday.
Justice Department lawyers suggested that was the position of the Trump administration. He called the government’s argument a “heckuva stretch.”
White House press secretary Karoline Leavitt also appeared to make a similar argument to reporters during a briefing earlier Monday.
“There are actually questions about whether a verbal order carries the same weight as a written order,” she claimed.
The judge called a hearing to determine what exactly happened after three flights allegedly containing members of Venezuela’s Tren de Agua gang left the United States for El Salvador on Friday night despite his verbal — and written — orders that expressly blocked them from taking off.
A timeline is crucial to determine whether the administration is openly defying the judicial branch as critics fear the president is consolidating power in the executive branch and shredding checks and balances.
After Boasberg refused the Trump administration’s request to cancel Monday’s hearing, the Justice Department asked a federal appeals court to “immediately” remove the case from Boasberg’s courtroom.
“The administration really jumped the shark with this,” Katherine Yon Ebright of the Brennan Center for Justice at the New York University Law School said Monday of the Justice Department’s attempt to take the case away from Boasberg.
“Judge Boasberg is no bleeding-heart liberal or national security law skeptic; he’s the former presiding judge of the Foreign Intelligence Surveillance Court,” she wrote.
The immigrants on those flights are now jailed in a notorious El Salvadoran prison. The White House claims officials can prove they are gang members based on “intelligence and men and women on the ground,” Leavitt told reporters Monday.
“Their hands were tied under the previous administration … they should be trusted and respected by the American public with this operation,” she said.
Judge Boasberg ordered attorneys to answer a series of questions about the flights, including, critically, what time they left the United States. But Justice Department lawyers repeatedly refused to answer the the queries.
The judge also wants to know how many people were deported solely on the basis of Trump’s invocation of the Alien Enemies Act, the centuries-old wartime law that Trump has applied for the fourth time in U.S. history.
Lawyers have until noon Tuesday to reply.
Trump is applying the Alien Enemies Act of 1798 to deport Venezuelans “who are members” of Tren de Agua and “are not actually naturalized or lawful permanent residents of the United States,” according to his order, which he invoked last Friday.
The next day, the American Civil Liberties Union and Democracy Forward filed a lawsuit seeking a temporary restraining order to block removals under the act. Boasberg scheduled a brief hearing at 5 p.m., then adjourned 20 minutes later to allow the administration to determine whether flights carrying anyone under the act were underway. The parties were due back in court at 6 p.m.
Then, at 5:26 p.m., one of two flights chartered by Immigration and Customs Enforcement departed Texas for Honduras, according to flight records reviewed by The Washington Post. Another flight followed at 5:45 p.m. bound for El Salvador.
Roughly one hour later, the judge agreed to temporarily block the application of the Alien Enemies Act. His written order appeared on the docket at 7:26 p.m.
A third flight left Texas for El Salvador 10 minutes later.
On Sunday morning, at 7:47 a.m. — more than 12 hours after the judge’s order from the bench and his written ruling — El Salvador’s President Nayib Bukele responded to news of the judge’s ruling with a post on social media: “Oopsie, too late.”
That message was shared by Secretary of State Marco Rubio.
Trump’s border czar Tom Homan suggested on Fox News that the administration isn’t “stopping” its operations because of a court order.
“We’re not stopping,” he told Fox News on Monday. “I don’t care what the judges think, I don’t care what the left thinks. We’re coming.”
In court documents and in the courtroom, Justice Department officials claimed that answers to the judge’s questions involve sensitive national security issues.
“If what you’re saying is ‘it’s classified’ and you can’t tell me, then you’re going to need to make a good showing,” the judge said. “Why are you showing up today and not having answers as to why you can’t disclose it?”
Justice Department lawyer Abishek Kambli also argued that Judge Boasberg “lost jurisdiction the moment” that those planes were no longer in U.S. airspace.
“Once they are in international waters, the president has authority outside of the Alien Enemies Act that would not have been subject to the order,” he said.
The judge was skeptical.
“You’re saying that the president somehow has extra powers over a plane once it enters international airspace once it leaves U.S. airspace?” he said.
The parties will be back in court Friday to argue the merits of Trump’s executive order itself.
Critics have expressed alarm over both the administration’s underlying decisions surrounding the deportation flights and its attempts to remove Judge Boasberg from the case for questioning them.
“Trump is defying court orders and abusing wartime powers to deport people with no due process,” Senator Elizabeth Warren wrote on X. “Donald Trump is not a king. He is not above the law.”
Aaron Reichlin-Melnick of the American Immigration Council called the Justice Department’s position “completely incoherent.”
“They say that even if they broke the order, Trump had inherent power as commander in chief to direct military assets,” he wrote on X. “But these were charter plane flights run by a private prison company subsidiary on a contract with ICE.”
