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D.C. District Court Judge Jeb Boasberg is a man on a mission, and it’s a very good thing he is.
It's a mission that has made him a target and even put him at physical risk—one he easily could have declined to undertake or abandoned. But it's very much in the country’s interest that he stay the course, as he is doing, at considerable personal cost.
The task sounds simple, and it would be simple but for an ongoing campaign of obfuscation and avoidance by the Trump administration. Boasberg wants to know whether the administration intentionally disobeyed the orders he announced at the end of an emergency hearing last Saturday.
That hearing arose because the administration had begun to put plans into place to deport over 250 Venezuelan nationals whom they believed were part of a transnational drug organization known as Tren de Aragua. That was after quietly invoking the Alien Enemies Act in a presidential proclamation on Friday night.
(An intriguing sidenote here: Trump said he never signed the proclamation and had nothing to do with it. However, it bears his signature. The White House scrambled to clean up his admission, suggesting he was referring to the original 1798 Alien Enemies Act as opposed to the proclamation signed Friday. That interpretation is risible in context, which leaves no doubt he was talking about the proclamation. So how did the signature get on the proclamation? By autopen, which Trump derided this week in reference to Biden's pardons? By Trump, who proceeded to completely forget this singular assertion of executive authority? By Stephen Miller, whose dark arts extend to channeling the boss’s signature? The Shadow knows…)
Acting as lawyers for six of the deportees, the American Civil Liberties Union sought an emergency hearing before Boasberg on the evening of Saturday, March 15. They proffered striking legal weaknesses with the administration’s reliance on the AEA and said that some of the nationals taken to Venezuela were not part of the gang—which now looks increasingly likely to be the case.
A little after 6:45 PM on Saturday, Boasberg issued an oral order directing the government not to deport anyone pursuant to the proclamation and, if there were any planes in the air, to turn them around. The order was utterly unambiguous:
“Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States. This is something you need to make sure is complied with immediately.”
Boasberg issued a written order at 7:26 PM reiterating his command not to try to enforce the proclamation, but not specifying to turn the planes around.
During these minutes, White House officials huddled with administration lawyers and determined not to turn the planes around.
News reports indicate that the planes took off at about 6:45 and, at the time of the order a few minutes later, were off the Yucatán Peninsula.
So, notwithstanding Boasberg’s orders, two planes with approximately 250 Venezuelan nationals flew from the United States to El Salvador that night, where the nationals were immediately placed into a notoriously brutal high-security prison.
El Salvador’s president, referring to a news article about Boasberg’s order, posted a laughing-crying emoji and the message: “Oopsie… Too late.” U.S. Secretary of State Mario Rubio reposted that message.
So Boasberg ordered the administration not to deport the Venezuelans, and they did it anyway. The screaming question: did they knowingly violate his order or do they have some explanation?
The stakes of that question, it is no exaggeration, go to the heart of the erosion of the constitutional order and the rule of law since Trump took office. And the administration has not inspired confidence with its shifting series of inconsistent explanations and various efforts to avoid answering to the court at all.
Last week, Boasberg convened a series of hearings to address the administration’s compliance with his order. He ordered—and then ordered again, and then a third time—for the Department to provide straightforward factual information: the dates and times of the flights after his oral order; the passenger list or at least counts (i.e., how many people were on each flight); whether any of them were subject to the stay; and whether any were asylum seekers or had pending legal claims. As the week wore on, he also ordered specific information on who in the administration received his order, what communications took place, whether steps were taken to halt or reverse the flights, and, if not, why.
On Monday, the DOJ lawyer asserted they had not violated the order but refused to give any further information, suggesting it was protected by national security.
On Tuesday, the Department, at Boasberg's order, submitted a legal filing that failed to provide the very specific additional details he had requested, again citing national security concerns. They also suggested that the oral order from the bench was not binding—only the later written order was. Pointing out that it is routine for district courts to examine classified information, Boasberg ordered the same explanation for the following day.
On Wednesday, the administration chastised Boasberg for pursuing a "picayune dispute” and for “continuing to beat a dead horse.” Again, they failed to supply the requested information. This time, they suggested they might invoke the state secrets privilege.
On Thursday, the administration told Boasberg it hadn't decided whether to invoke the state secrets doctrine. It submitted a new declaration that gave no new information whatsoever. Boasberg pronounced it “woefully insufficient” and wrote that the government had “again evaded its obligations.” He has now given them until Tuesday at 10 AM to submit a sworn declaration by a person with direct involvement in the Saturday deliberations and a brief showing cause why they didn’t violate his court order.
The implication of the order to show cause is that Boasberg is actively considering holding the administration in contempt.
To date, Boasberg has exercised judicial power in two ways. First, he imposed a temporary restraining order on the administration’s use of the proclamation so that its legality could be determined.
That’s an entirely expected move under the law. The Alien Enemies Act—which previously has only been used during the War of 1812, World War I, and World War II—requires, in the absence of a declared war, that there be a foreign nation or government that has made a predatory incursion into the U.S. The administration is suggesting that the Tren de Aragua drug group is its own nation or is acting at the direction of Venezuela.
There is also the issue of whether all the people on the plane were in fact Tren de Aragua members covered by the order. Trump said in his news conference Friday that “we don't want to make mistakes there.” Um—that’s true; and it points directly to judicial review. Moreover, there are indications that, in governmental parlance, “mistakes were made,” meaning totally innocent people were flown down to a hellhole in El Salvador outside of U.S. jurisdiction. It’s a Kafkaesque nightmare that the Constitution does not countenance.
These determinations—of whether an administration’s actions fit within the law—are the bread and butter of district courts (which, of course, can always be appealed). It's a wholly pedestrian and straightforward judicial function.
Second, Boasberg, with patience and decorum, is ordering the administration to explain why they didn’t comply with his order. Again, pretty routine stuff.
But look what those modest exercises of judicial power have brought Boasberg. He has become the victim of a repugnant and phenomenally ignorant campaign to vilify him for the two rulings.
Trump started the ball rolling by referring to him as a "radical left lunatic,” labeling him a "troublemaker and agitator," and calling for his impeachment. There is no president in our history other than Trump who would be simultaneously so vicious and so off-base.
Trump's tirade triggered a public statement by none other than Chief Justice John Roberts, emphasizing that impeachment is not an appropriate response to disagreement with judicial decisions, which can be addressed through the appeals process.
Then, in a stunning illustration of the rule of holes principle ("if you're in a hole, stop digging"), Trump the next day sent out a fundraising email calling for Boasberg's impeachment. Elon Musk made maximum contributions to the House members who had introduced articles of impeachment against Boasberg and three other judges.
That’s only the beginning of the harassment Boasberg has endured from Trump supporters. Perhaps the most vile was Trump associate Laura Loomer, who called Boasberg's family a national security threat to her 1.5 million online followers.
Republican members of Congress and the White House Press Secretary have also blithely accused Boasberg of “legislating from the bench,” which is an empty Republican talking point with not even the slightest application to this case.
The criticisms all amount to one thing: a district court judge ruled against the Trump administration. For that reason, the judge must be a radical leftist who deserves to be impeached.
The charge would be comic if it weren’t so alarming and dangerous. Boasberg is one of the most respected judges in the entire federal judiciary. A law school roommate of Justice Brett Kavanaugh, he is known as a judge of impeccable calm temperament and a rule-of-law centrist who has ruled against Democratic presidents. Anybody—Republican or Democrat—who knows the federal judicial system knows that, at best, Trump and company have no idea what they’re talking about; and at worst, they are lying through their teeth.
Having been jerked around and threatened repeatedly by the administration, Boasberg could easily let the violation of his order fade away and focus only on the merits of the Alien Enemies Act—e.g., is Tren de Aragua a foreign country that has made a predatory incursion into the U.S.?
But I think Boasberg has calculated that it is critical to get to the bottom of the administration’s readiness to simply violate judicial orders. The administration has already proven itself capable of squirreliness and obfuscation; but outright defiance is the line that, in many people’s minds, defines a constitutional crisis.
Moreover, given his role as Chief Judge on the D.C. District Court (which, recall, the administration snubbed by issuing pardons for the hundreds of January 6 offenders these judges had tried), he understands that he has both the institutional prestige and the personal credibility to force the issue.
And while I can’t say for certain, I think both the Court of Appeals for the D.C. Circuit and the Supreme Court are unlikely to throw him to the wolves. And if that’s wrong and the Supreme Court is going to give Trump carte blanche, it’s better to know that now.
All of which is to say: this is a good time and a good case to force the administration to show its cards. Putting off the showdown gives the administration more time to aggregate power and choose their optimal next case to defy judicial review.
Judge Boasberg is rendering the country an important service—one that makes him public enemy #1 for the MAGA faithful and puts him and his family under tremendous stress. Just as on January 6, it’s Trump’s responsibility to call off the dogs; but don’t hold your breath. And the pressure and danger will increase many times over should Boasberg determine that the administration violated his order and move to impose contempt or other sanctions. It’s shameful that judges in this country should ever be put in such a tight corner. But it’s fortunate that the judge on duty as the showdown looms is universally respected and a person of unimpeachable integrity. He won’t let the loathsome threats affect his judgment or his sense of responsibility.
Not this time, Donald.
