5 Points On How Judge Boasberg Broke Down The Admin’s Alien Enemies Contempt

In a withering 46-page opinion on Wednesday, D.C. Chief Judge James Boasberg laid out how he came to believe that the Trump administration was acting in bad faith during its Alien Enemies Act removals.

Boasberg set the stage for potential contempt prosecutions in the order. He also detailed what he came to see as the Trump administration’s scheme to shield its plan to use rarely invoked wartime powers to remove more than 100 Venezuelans to a Salvadoran detention facility, depriving them of due process and the courts of the ability to review what was taking place.

Below are five points on Boasberg’s opinion.

Hiding the ball

The Trump administration planned the Alien Enemies Act removals to minimize the chances that a judge might intervene.

It was partly baked into the idea from the start: the Venezuelans on whom the law was invoked would not receive due process before being sent to El Salvador. But the Trump administration, Boasberg found, structured the entire process so as to avoid the possibility of judicial scrutiny, staging people near the airport from which flights would depart and launching planes after a hearing into the removals began.

“From the opening hours of Saturday, the Government’s conduct betrayed a desire to
outrun the equitable reach of the Judiciary,” Boasberg wrote, adding later: “Such conduct suggests an attempt to evade an injunction and deny those aboard the planes the chance to avail themselves of the judicial review that the Government itself later told the Supreme Court is ‘obviously’ available to them.”

Social media

Part of what drew Boasberg’s ire came down to the administration’s decision to flaunt its noncompliance on social media. The judge singled out Secretary of State Marco Rubio for something he reposted the day after the removals: he retweeted El Salvador strongman Nayyib Bukele mocking the court.

Boasberg described this as “deliberately and gleefully” intimating defiance.

Separately, he found that some social media posts by the administration undermined its efforts to claim that information he sought about the removals was a state secret, and thereby off-limits to the court.

In fact, Boasberg said, the Trump administration shared in social media posts and videos some of the same details that it later claimed constituted a state secret.

“The Court is exceedingly doubtful that the privilege applies here,” the opinion reads.

Obstructionism

That goes to the broader attempt by the Trump administration to delay, block, stonewall, and obstruct efforts by the judiciary to uncover the answers to basic questions about what it did to remove more than 100 Venezuelans under the Alien Enemies Act.

After the administration removed people under the act to El Salvador, it spent days trying to dodge Boasberg and his inquiries. A DOJ attorney told him in a court hearing that his authority ended at the close of U.S. airspace; the government dragged its feet but eventually asserted the states secrets privilege.

Boasberg described this as “increasing obstructionism” that has continued to conceal from the court, the public, and the removed what exactly happened, and found that it began as the removals themselves took place: “it secretly loaded people onto planes, kept many of them in the dark about their destination, and raced to spirit them away before they could invoke their due-process rights.”

What was ‘convenient’

The removals themselves were followed by another emergency hearing, held on the Monday after the Venezuelans were removed to El Salvador.

Unlike the other hearings, the DOJ was represented there by a different attorney. He was openly unwilling to share any information with the court about what had taken place.

Boasberg suggested that switching out lawyers may have been intentional on the part of the government.

“Then, in the hearing itself, the Government refused to provide any relevant facts,” he wrote. “The lawyer the Government sent to the proceeding — conveniently not the counsel who had appeared at the TRO hearing — repeatedly stated in some form or another that he was not ‘at liberty to disclose anything about any flights.'”

Sound-bites

The Trump administration tried to wall off the entire incident from judicial scrutiny by arguing that, once removed from the United States, courts are powerless to do anything at all about those sent away.

It remains a stunning argument. As Justice Sonia Sotomayor noted, it would arrogate to the government the power to remove even U.S. citizens without due process: so long as they were out of the country by the time a court case was filed, there would be nothing the judiciary could do.

The court was clearly shocked by what it described as an “extravagant” assertion of presidential authority.

“Although Defendants offer certain soundbite-ready assertions,” he wrote, “they cite no legal authority that Defendants here operated pursuant to a presidential power preclusive of both congressional and judicial power.”

Elsewhere, Boasberg noted: “Were that true, Executive Branch officials could do as they please with deportees abroad, regardless of statutory constraints that plainly apply — for example, by rerouting a plane to discharge deportees into a country where they would be tortured, even though federal law expressly forbids that outcome.”