WOW! Judge Murphy is MAD
Over
the past several months, judges - including some on the Supreme Court - have
been losing patience with the Trump regime's obfuscations. Today, Judge Murphy
is the latest to tear into them for it.
May 26, 2025
466
I love to see rulings like this. The judge does an
excellent job at summing up what just happened, so rather than try to re-state
it, I’ll just share some of his eloquent and blistering order on the
government's motion to reconsider his recent order.
Defendants (members of the Trump administration) have
mischaracterized this Court’s order, while at the same time manufacturing the
very chaos they decry. By racing to get six class members onto a plane to
unstable South Sudan, clearly in breach of the law and this Court’s order,
Defendants gave this Court no choice but to find that they were in violation of
the Preliminary Injunction.
Even after finding that violation, however, the Court
stayed its hand and did not require Defendants to bring the individuals back to
the United States, as requested by Plaintiffs. Instead, the Court accepted
Defendants’ own suggestion that they be allowed to keep the
individuals out of the country and finish their process abroad. In the interest
of full transparency, the Court quotes at length from the hearing transcript:
·
JUDGE: [Plaintiffs’ counsel] is
suggesting that the only remedy is for the plane to return here so that these
individuals be given an opportunity to raise any objections they have to being
sent to South Sudan. Do you have another suggestion as to what a remedy that
would allow these people to have the process that they are due might be?
·
MR. ENSIGN (for the Trump
administration): If I may, we think any remedy should be narrowly tailored to
the violation. And so, you know, if Your Honor believes they weren’t given a
meaningful opportunity to express a fear under CAT [Convention Against Torture],
that the remedy should first be limited to giving them such a meaningful
opportunity. If they were to do so, then they would be given that reasonable
fear interview. But bringing them back would be a much broader remedy than
necessary because this Court only requires compliance with procedures and, to
the extent that Your Honor believes those procedures were not followed, the
Government should be allowed to provide those procedures, and that should
satisfy the due process as interpreted by this Court.
·
JUDGE: Thank you, Mr. Ensign. So let’s
say that -- I agree with you that I want to make the most narrowly tailored
order to address the violation of my preliminary injunction that is
possible. What you’re suggesting is that they can have a reasonable
fear interview where they are now. Is that a practical possibility?
·
MR. ENSIGN: Your Honor, I don’t know.
I’d have to speak to my client, but I think that would need to be at least one
of the compliance options that’s presented, because that would be a much more
narrowly tailored remedy that is actually tailored to the violation that Your
Honor has found.
After this exchange, Defendants spent several hours
conferring internally as to the feasibility of this option, ultimately deciding
that it was doable:
·
JUDGE: I’m very much considering this,
but, if this is the route we go, my inclination would be to say, if you
want to do all of these [interviews] where they are, you have to do them
appropriately; if you don’t want to, you can always bring them home of your own
volition and do it there. And so I’m not going to mandate that the Department
do anything overseas, but in an effort to craft as circumscribed a remedy as
possible, I’m inclined to say if the Department wants to figure that out, I’m
inclined to let them.
Since that hearing, merely five days ago, Defendants have
changed their tune. It turns out that having immigration proceedings on another
continent is harder and more logistically cumbersome than Defendants
anticipated. However, the Court never said that Defendants had to convert their
foreign military base into an immigration facility; it only left that as an
option, again, at Defendants’ request. The other option, of course, has always
been to simply return to the status quo of roughly one week ago, or else choose
any other location to complete the required process.
I followed along with the hearing and spoke about it with
Andy McCabe in the latest episode of the UnJustified podcast, and I had a
couple of observations. First, I thought it was extra nice of the judge not to
simply order the government to bring everyone back to the United States, but to
give them options about how to ensure the detainees had due process. I figured
the judge was doing this because the Trump administration hasn’t exactly been
complying with court orders to return mistakenly disappeared people to the
United States. Something else I noted was the lengthy back and forth between
the judge and the government about what due process in Djibouti would look
like. Previous judges have said they needn’t detail the procedure in favor of
simply returning the detainees to the United States. But it seemed to me that
Judge Murphy - having noted what has happened in other cases with the
government refusing to return people and obfuscating the process - was trying
to outline the specific processes the administration would undertake overseas
to ensure due process is given.
The judge is right. Giving them due process on the ground
in Djibouti was the government’s idea. Yet they are STILL complaining about the
choice THEY made.
It continues to be this Court’s sincere hope that reason
can get the better of rhetoric. The orders put in place here are sensible and
conservative. Accordingly, and for the reasons stated herein, Defendants’
motions for reconsideration and for stay pending appeal are DENIED.
The judge continues:
It cannot be said enough that this is the result Defendants
asked for (“I think we certainly agree that any remedy should
be narrowly tailored. I don’t know that return to the United States would be
required to carry those [interviews] out. You know, I think that those could
potentially be conducted abroad.”). This Court sought to fashion a remedy to
address the constitutionally inadequate nature of the class members’ removals,
while not limiting Defendants’ ability to effectuate those removals in the most
expeditious manner possible—subject, of course, to constitutional requirements.
In doing so, the Court offered Defendants a method of compliance that both
guaranteed the procedural rights due to the class members but was less exacting
than having to turn around a chartered plane.
Defendants describe the hardship of having to carry out
impromptu immigration proceedings on foreign soil. But that was—and continues
to be—Defendants’ daily choice. “To say more would be to paint the lily.”
Then the judge addresses the Trump administration’s request
to stay his order:
As a threshold matter, the Court finds this request for a
stay perplexing. The order remedying Defendants’ violation of the Preliminary
Injunction is as flexible as possible, leaving the details of when, where, and
how entirely in Defendants’ hands. It is the narrow remedy Defendants
requested. In short, there is very little to stay, absent completely
blessing Defendants’ violation.
As to the clarification to the Preliminary Injunction, that
addresses a problem raised by Defendants. Defendants ask this
Court to reverse its clarification but offer nothing to put in its place. That
would do little more than return us to the same spot as before.
The Court further finds that the class members at issue
were, and continue to be, at risk of irreparable harm in the absence of
injunctive relief. The Court has already outlined the risks faced by class
members generally. Here, that risk becomes tangible as class members were
nearly dropped off in a war-torn country where the Government states that
“[f]oreign nationals have been the victims of rape, sexual assault, armed
robberies, and other violent crimes.”
For the foregoing reasons, Defendants’ motions for
reconsideration and for stay pending appeal are DENIED.
There’s a lot more to this 17-page bench slap, and you can
read it here.
Taking a step back to look at the totality of the cases
I’ve been following regarding due process, the courts are rapidly losing
patience with the government - and the deference the Department of Justice
usually enjoys from the courts - has disappeared almost completely.
As far as contempt goes, Judge Murphy said during the
hearing that the government very obviously violated his orders and that he will
deal with the contempt issue and other possible remedies once the due process
procedures (that the government asked for) are resolved.
And while I am impatient to reach contempt proceedings - I
cannot imagine the horrors these plaintiffs are facing while the courts sort
this out. The cruelty of consistent delay employed by the Trump regime - as
always - is a feature, not a bug.
~AG
