The Trump Justice Department was at times squirrely, at times withholding and at times quick to whip out attorney-client privilege Thursday as a federal judge tried to discern who exactly in the administration may have violated his orders.
U.S. District Judge James Boasberg, in his Washington D.C. courtroom, pressed Deputy Assistant Attorney General Drew Ensign on who exactly told planes carrying Venezuelan detainees deported under the Alien Enemies Act not to turn around, even after he’d ordered that those detainees not be removed from U.S. custody.
“You’ve said that it was perfectly appropriate for the government to act as it did, so who made that perfectly appropriate decision?” Boasberg asked.
“Your honor, I don’t know that,” Ensign replied.
Boasberg, chuckling, asked: “Were you told?”
“Your honor, I haven’t been told,” Ensign said.
“So you, standing here, have no idea who made the decision to not bring the planes back, or have passengers not disembark upon arrival?” Boasberg asked incredulously.
“Your honor, I do not know those operational details,” Ensign replied.
Boasberg then asked the government how it wanted to proceed, as he’d need names of people to hold in contempt of court, should he make that finding. The lawyer for the detainees, in his comparatively brief conversation with the judge, advocated for some kind of sworn evidence, preferably hearings or depositions, as he argued that the government hadn’t been forthcoming in its written declarations so far.
Boasberg went far deeper than in previous hearings towards trying to learn who in the government knew about his order, when they knew it and who specifically chose to potentially disregard him. His questioning of Ensign, the government lawyer, took up nearly the entire span of the 45-minute hearing. At times, Ensign was visibly uncomfortable, particularly as Boasberg sought to learn which government officials listened in to the critical March hearing at which he ordered the planes turned around.
The hearing itself is several steps short of any real consequence that Boasberg might impose on the Trump administration for potentially flouting his order. Boasberg issued no ruling on Thursday, though he did suggest that he was feeling out a potential contempt process.
For now, he will rule on whether to find probable cause to begin contempt proceedings. From there, Boasberg could use the contempt process to haul in senior officials and, as the judge put it at a hearing last month, “get to the bottom” of who decided that the planes would continue on to El Salvador after the court ordered their reversal.
Boasberg drilled for much of the hearing, which was open to the public, into whether the Trump administration had structured the entire Alien Enemies Act removal process so as to avoid judicial scrutiny and deprive the deported of whatever chance they may have had to file legal challenges to the process.
TPM covered the Trump administration’s efforts to circumvent judicial oversight in detail, tracing the paths of several deportees as ICE moved them swiftly across the country and staged them near a Texas airport from which they could be removed.
Boasberg focused on the issue, saying at one point that “ICE clearly knew about this proclamation before 3:53 p.m.” while expressing disbelief that the Trump administration could have moved three planeloads of people to El Salvador without extensive preparations.
There continue to be lingering questions over how and when the proclamation itself was signed. The White House has said that it was issued on Friday, March 14; it didn’t go into legal effect until it was posted online at 3:53 p.m. on Saturday, March 15. As Boasberg noted on Thursday, his March 15 hearing began at 5 p.m.; by that point, planes were already in the air.
He remarked at one point that “one could infer” that ICE had begun working on this long before the Alien Enemies Act invocation was publicly proclaimed.
After Ensign agreed, Boasberg followed up: “What other inference could you draw from that?”
Ensign squirmed as Boasberg hammered the point.
There was a “fair likelihood” that “the government acted in bad faith throughout that day,” the judge said. “If you really believed everything you did that day was legal and could survive a court challenge, I can’t believe you ever would have operated the way you did.”
Boasberg tallied the human cost of such haste, pointing out that “at least one” person “that we know of” shouldn’t have been deported at all, referring to the mistaken deportation of Kilmar Abrego Garcia, who had been granted protection by a judge from being deported and was in the United States on a work permit.
Meanwhile, the case is continuing on the merits. Boasberg will gather the parties again next week for a hearing on the detainees’ motion for a preliminary injunction, a more permanent ban on Trump’s deportations under the Alien Enemies Act.
If the tool at the department of Justice is unwilling to tell the court who made a decision, then he should be held accountable. He may be unwilling to throw his boss under the bus, but how willing will he be after a few weeks in jail?
OTAF, but… Noted national security expert Laura Loomer has had trump fire three people from the NSC. Yup, same person who claimed 9/11 was an ‘inside job’.
I suppose it’s too much to ask that every representative from the DOJ that comes before Boasberg gets put in jail without representation, without habeas, and without corpus until one of them squeals and spills the beans over this.
Maybe one of the “I don’t knows” will finally know something. After a week; ship them all to El Salvador if they still “I don’t know”.
Just my guess…I don’t think Boasberg will want to file charges against the ‘I don’t know’ lawyer, but he could do so against the Homeland security boss, the ICE boss, the DOJ boss, and the WH chief of staff since they all knew.