During a high-stakes hearing over Donald Trump’s use of a centuries-old wartime law to swiftly deport suspected Venezuelan gang members, a federal judge rebuked lawyers for the Department of Justice for their “intemperate and disrespectful language” in their responses to court orders.
Trump and his allies have threatened to impeach Judge James Boasberg after he temporarily blocked the administration from deporting immigrants under the Alien Enemies Act and questioned whether the government intentionally defied his court orders to turn planes around before they emptied out dozens of people into a prison in El Salvador last week.
A standoff between the judge, who has ordered the administration to respond to several questions about the flights, has reached a boiling point, and legal scholars and critics of the administration have warned that Trump’s apparent defiance has reached a dangerous constitutional crossroads.
“Did you not understand my statements in that hearing?” Boasberg asked Justice Department lawyers during Friday’s hearing in Washington, D.C. “You did tell them that it was an order from me to turn the planes around … to bring back people to the United states. You understood that?”
Justice Department lawyer Drew Ensign suggested that he believed that conversation is covered under attorney-client privilege. Boasberg cut him off.
“I’m asking what you understood,” Boasberg said. “Did you think it was hypothetical, not serious, was going to be modified?”
Boasberg stressed that his orders did not stop the government from deporting anyone under normal immigration enforcement proceedings, and didn’t order anyone to be released into the United States. The orders only applied to deportations under the Alien Enemies Act, which Trump has invoked for the fourth time in history as he turns his anti-immigration agenda into a wartime effort against suspected members of Venezuela’s Tren de Aragua gang.
“I think it’s important to the public to make sure those facts are clear,” Boasberg said.
Trump’s order, which was covertly invoked last week, states that “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
But the government has admitted in court filings that “many” of the nearly 300 Venezuelans on those flights don’t have a criminal record. In a court filing, ICE official Robert Cerna claimed that a lack of a criminal record “actually highlights the risk they pose” and “demonstrates that they are terrorists with regard to whom we lack a complete profile.”
Affidavits from family members and attorneys for some of the men deported to El Salvador show that they were waiting for asylum hearings in the United States, had no orders for their removal from the country, and had no criminal record or indication that they would abruptly be thrown on a flight to the notorious jail, where they cannot speak to an attorney.
Boasberg repeatedly questioned what would happen if the United States deports someone who is not a member of Tren de Aragua under the Alien Enemies Act.
The Justice Department argues that those immigrants can raise detention challenges through a normal habeas corpus petition process.
“Are you going to tell each person that’s going to be deported” that they have rights to challenge their detention, Boasberg asked.
He also reminded the government that there is a court — the Alien Terrorist Removal Court — set up explicitly for this reason, and it’s never been used before. Until this year, Boasberg was the chief judge.
American Civil Liberties Union attorney Lee Gerlent said the idea that immigrants who are removed through Trump’s use of the Alien Enemies Act have the option to challenge their deportation is “illusory.”
“It can’t just be you’re put on a plane in two hours,” otherwise “anyone could be taken off the street,” he said. “This is a very dangerous road we’re going down where the Alien Enemies Act can be invoked against a gang.”
Boasberg appeared to agree.
“The policy ramifications of this are incredibly troublesome and problematic and concerning,” he said. “It’s an unprecedented and expanded use of an act that has been used … in the War of 1812, World War I and World War II, when there was no question there was a declaration of war and who the enemy was.”
He suggested that, under the government’s arguments, if a Chinese fisherman comes into U.S. waters, and the president calls that an invasion and orders the detention of all Chinese fishermen, “that’s fair game, nothing we can do, right?”
“Even you … would agree that’s alarming,” he told government lawyers.
At the White House on Friday, Trump said he was “told” that Venezuelans deported to El Salvador “went through a very strong vetting process.”
“We don’t want to make that kind of mistake,” he said.
Asked whether he believes his administration has the authority to detain immigrants and deport them without presenting any evidence against them, Trump said: “Well, that’s what the law says and that’s what our country needs.”
Several people on the flights — including women and people who were not from Venezuela — were returned to the United States because the Salvadoran government wouldn’t take them, according to Gerlent.
Boasberg, meanwhile, is still seeking answers from administration officials about the flights themselves — including who was on them, and when the planes left U.S. airspace — to decide whether the administration avoided his court orders to turn the planes around. Government lawyers in court documents have argued that “there is no justification to order the provision of additional information, and that doing so would be inappropriate.”
Those answers would “disclose sensitive information bearing on national security and foreign relations,” they argued.
Deputy U.S. Attorney General Todd Blanche — who is also Trump’s personal criminal defense lawyer — wrote in a court filing Friday that there are “cabinet-level” discussions underway to decide whether to avoid answering Boasberg’s questions about the flights under a “state secrets” privilege.
The judge is giving government lawyers until March 25 to decide whether they are invoking that privilege.
The Trump administration has also appealed Boasberg’s injunction that blocks deportations under the Alien Enemies Act. An appeals court will hear arguments in that case Monday.
