Courts resisting fascism

 

No kings in America

In a ruling that began by invoking Franz Kafka’s “The Trial,” U.S. District Judge James Boasberg granted hundreds of men whom the Trump administration sent to a terrorism prison in El Salvador a chance to win their freedom.

“The reason should be self-evident: the ‘due process of law’ exists so that no ‘person’ within our borders — regardless of citizenship — is deprived of his ‘liberty’ on insufficient evidence or a spurious charge,” Boasberg wrote on Wednesday.

It’s not clear what form of due process the men eventually will receive, especially given the Trump administration’s attempts to resist compliance in these cases. From a legal standpoint, fighting Boasberg’s finding would seem futile: The Supreme Court recently ruled that the men at El Salvador’s CECOT prison are entitled to due process — “with all nine Justices agreeing,” Boasberg noted.

[...]

“Our legal tradition is wholly incompatible with the establishment of a network of overseas prisons, shielded from the Great Writ [of habeas corpus] by the facade of foreign control, to which the government routinely exports detainees without due process — a legal no man’s land,” the ruling states. “Indeed, the Habeas Corpus Act of 1679 generally prohibited detention ‘beyond the seas’ to places where the writ did not run, […] and such abuses partly animated this nation’s War for Independence.”

Boasberg cited the colonists’ grievances listed in the Declaration of Independence, declaring George III’s tyrannical for “depriving us, in many cases, of the benefits of trial by jury” and for “transporting us beyond seas to be tried for pretended offenses.”

  Adam Klasfeld Substack

Judge Boasberg was waxing expansively literary in this one. A "ruling for the ages" in the words coined by Trump's Supreme Court.

Judge Boasberg found that he lacked jurisdiction to hear the men’s habeas corpus petitions himself because senior State Department official Michael G. Kozak wrote in a sworn declaration that El Salvador controls the “detention and ultimate disposition of those detained in CECOT.” The judge found that Supreme Court precedent prevents him from second-guessing that assertion, absent direct evidence contradicting it. That means that whatever due process the expelled immigrants receive won’t be in Boasberg’s courtroom.

Hmmmm. He's the DC judge. So who will hear their cases? We don't have a court in El Salvador.

“The court is nonetheless mindful of the possibility, raised by plaintiffs, that the government has adopted and presented its arrangement with El Salvador as a ‘ruse — and a fraud on the court — designed to maintain control over the detainees beyond the reach of the writ,’” [Boasberg] wrote.

[...]

Ultimately, Boasberg found that he must take [the government's attorney] “at his word,” despite his declaration’s “incongruity with multiple public statements made by both Salvadoran and U.S. officials.”

Why, judge, why?

Boasberg ended that phase of his analysis with a warning: “The court nonetheless reminds the government that any official who makes knowingly false statements in a sworn declaration subjects himself to perjury prosecution.”

[...]

Boasberg [...] expressed a willingness to recommend criminal contempt cases himself through a private attorney if he finds charges warranted and Trump’s Justice Department refuses to bring them.

And Trump's DOJ will not be bringing those charges.

DOJ tripping over Trump's dick tie

U.S. District Judge James] Boasberg, the chief federal district judge in Washington, D.C., is trying to discern whether the U.S. government retains “constructive custody” of nearly 140 Venezuelan immigrants who were hurriedly deported to El Salvador under Trump’s mid-March invocation of the Alien Enemies Act, a rarely used wartime power. If so, it would be possible to bring them back to receive due process, which Kambli reluctantly acknowledged they did not receive two months ago.

[...]

The judge is now asking for an “expedited” fact-finding inquiry so that he can decide whether to advance the case further. He is asking for statements under oath from administration officials about the U.S. government’s legal arrangement with El Salvador so that he can rule on whether the government does in fact retain custody of the prisoners it has sent overseas.

[...]

Boasberg said during a court hearing that Trump’s claim appears to undercut the administration’s legal position that it has no authority to return Abrego Garcia or hundreds of other immigrants the U.S. sent there in recent weeks, despite growing questions about the legality of the operation.

“Didn’t the president say just last week that he could secure the return of Mr. Abrego Garcia simply by picking up the phone and asking the president of El Salvador to release him?” Boasberg asked. “Was the president telling the truth?”

The inquiry forced Justice Department attorney Abhishek Kambli into a tricky spot.

“That goes to the president’s belief about the influence that he has,” Kambli said.

But influence, the DOJ attorney added, doesn’t equate to legal control.

  Politico

Nice evasion.

Another pointed exchange came as Boasberg pressed Kambli about Homeland Security Secretary Kristi Noem’s visit to the notorious Salvadoran prison, known as CECOT, where the deportees are being held. Noem claimed during the appearance that the prison was “one of the tools in our toolkit that we will use.”

“Is she wrong about that?” the judge asked.

“I’m not going to necessarily parse out every statement,” Kambli demurred. “Sometimes public statements lack the nuance of any given situation.”

“Is that another way of saying these statements just aren’t true?” the judge said.

“No, that’s not what I’m saying at all,” Kambli said.

Drilling down further, Boasberg pressed on whether the U.S. government is paying El Salvador to house the people it has deported there in partnership with the country’s president, Nayib Bukele, a close Trump ally. Kambli acknowledged that the U.S. government had paid “grants” to El Salvador “for law enforcement and anti-crime purposes,” which the country could use to house deported immigrants in its prisons.

Not as clever as the first exchange.

Boasberg also used Wednesday’s hearing to force the Justice Department to acknowledge that those around Trump had spent weeks misrepresenting the Supreme Court’s ruling. Trump allies have claimed that the high court upheld Trump’s use of the Alien Enemies Act. But the justices intentionally avoided that question. In the meantime, three federal district court judges — in Texas, New York and Colorado — have ruled that Trump’s use of the Alien Enemies Act was improper.

Boasberg is reaching the end of his rope

 

US District Judge James Boasberg ruled Wednesday that “probable cause exists” to hold Trump administration officials in criminal contempt for violating his orders in mid-March halting the use of the Alien Enemies Act to deport alleged Venezuelan gang members.

The long-awaited decision on Wednesday from a judge President Donald Trump and his allies have repeatedly attacked puts the administration on the path toward being punished for thwarting court orders.

[...]

“The Court ultimately determines that the Government’s actions on that day demonstrate a willful disregard for its Order, sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt,” Boasberg wrote in a 46-page ruling detailing his decision.

“The Court does not reach such conclusion lightly or hastily; indeed, it has given Defendants ample opportunity to rectify or explain their actions,” he added. “None of their responses has been satisfactory.”

[...]

Boasberg says he wants sworn statements first from people who can attest to the officials making the decisions not to turn the planes around as they carried migrants to El Salvador on March 15.

Then, Boasberg says, if those statements aren’t satisfactory to him, he will ask for live witnesses to testify at hearings or depositions.

The judge could then, he says, ask the Justice Department to prosecute Trump administration officials, or he could appoint an attorney as a special prosecutor.

  CNN

Obviously, he'd have to appoint a special prosecutor.

UPDATE 06:16 pm:

UPDATE 07:21 pm:

SCOTUS speaks: It's OK to snatch and deport to a foreign gulag

 

The Trump administration wants everyone to believe that the case challenging its deportation of Kilmar Abrego Garcia to El Salvador’s infamous Centro de Confinamiento del Terrorismo, or CECOT, is about the government’s right to deport undocumented immigrants, or gang members, or terrorists. But it’s actually about whether the United States government can kidnap someone off the street and then maroon them, incommunicado, in a prison abroad with little hope of release.

  The Atlantic

Trump laughs at your edicts he doesn't agree with.

According to the majority, the migrants cannot sue in D.C., where the president and his subordinates are planning and carrying out much of this program. Instead, they must file petitions for habeas corpus in the federal courts where they are being confined in south Texas.

[...]

First, most federal judges in Texas are extremely conservative and are far less likely to safeguard the migrants’ rights; even if they do, the government can appeal to the MAGA-aligned, far-right U.S. Court of Appeals for the 5th Circuit, which is all but certain to rule for the government. Second, the plaintiffs will probably have to file individual habeas petitions, pressing their cases one by one, since the Supreme Court has never approved “habeas class actions” (and Texas judges surely won’t do so). So the litigation will become far more laborious and time-consuming. (How they will gain access to a lawyer is another troubling question.) And in the related case of Kilmar Abrego Garcia, the Justice Department has taken the position that migrants have no rights once locked up in CECOT. So if a conservative judge rubber-stamps a deportation, and officials whisk away the migrant to El Salvador before he can appeal, he will have no further access to justice in the view of the U.S. government.

Moreover, it is also entirely unclear where migrants who have already been deported to El Salvador must now file their petitions. They had been represented by the classwide litigation in D.C. which is now defunct. But they cannot file in Texas because they’re being held in a foreign country. [...] [T]hey are simply stuck in CECOT indefinitely with no recourse.

  Slate

UPDATE 09:33 am:

UPDATE 07:26 pm:

The good thing about Trump 2.0 is you don't have to understand anything.  You just have to do as you're told.

Signalgate hearing

 I'm getting a little tired of the "-gate" thing.  How many decades until we find a new descriptor.  How many people are old enough to know why we use that term?  Or, maybe it keeps that disgrace in our history alive, which isn't a bad thing.

Anyway...

Fate can fuck with you

 

The ongoing Boasberg Battle

The Trump administration told a federal judge on Monday night that it would not disclose any further information about two flights of Venezuelan migrants it sent to El Salvador this month despite a court order to turn back the planes, declaring that doing so would jeopardize state secrets.

The move sharply escalated the growing conflict between the administration and the judge — and, by extension, the federal judiciary — in a case that legal experts fear is precipitating a constitutional crisis.

  NYT

Precipitating? We are already there.

For almost 10 days, the judge, James E. Boasberg of the Federal District Court in Washington, has been trying to get the Trump administration to give him information about the two flights in an effort to determine whether officials allowed them to continue on to El Salvador in violation of his order to have them return to the United States.

But in a patent act of defiance, the Justice Department told Judge Boasberg that giving him any further information about the flights — which the Trump administration maintains were carrying members of a Venezuelan street gang called Tren de Aragua — would “undermine or impede future counterterrorism operations.”

“The court has all of the facts it needs to address the compliance issues before it,” the department wrote in a filing.

Wow.

The state secrets privilege is a legal doctrine that can allow the executive branch to block the use of evidence in court — and sometimes shut down entire lawsuits — when it says litigating such matters in open court would risk revealing information that could damage national security.

Typically, however, the executive branch confidentially provides a detailed description of the sensitive evidence to a judge to show why it is too sensitive to discuss in open court. The Trump administration’s move is extraordinary in part because it is refusing to provide information to Judge Boasberg — a former presiding judge of the nation’s national security surveillance court — even privately and in a secure facility for handling classified information.

Indeed, the administration has not even claimed the information at issue is classified.

[...]

Also on Monday, a federal appeals court in Washington held a nearly two-hour hearing on the Trump administration’s request to nullify Judge Boasberg’s underlying order, taking up many of the same issues.

The three-judge panel did not issue an immediate ruling. But during questioning, a Justice Department lawyer acknowledged that if the court were to reverse Judge Boasberg’s order, the administration could immediately resume transferring people to the Salvadoran prison.

[...]

During the hearing on Monday before the appeals court panel, two of the judges seemed to agree that the migrants the government wants to remove under the law could go to court to challenge whether they were actually members of Tren de Aragua.

But it was unclear what those challenges might look like.

One of the judges, Patricia A. Millett, a Democratic appointee, signaled skepticism with the government’s position that the panel should stay Judge Boasberg’s restraining order.

She grilled a Justice Department lawyer, suggesting that if the Venezuelans could be deported without due process, then anyone — herself included — could simply be declared a national security threat and flown out of the country. And Judge Millett pointed out that even German citizens arrested under the Alien Enemies Act during World War II had the opportunity to argue in hearings that the law did not apply to them.

“Nazis got better treatment under the Alien Enemies Act,” she said.

A second judge, Justin R. Walker, a Republican appointee, agreed that the migrants could challenge whether they were covered by Mr. Trump’s invocation of the wartime act, but he appeared to be skeptical of allowing Judge Boasberg’s order to stay in place for technical reasons.

He repeatedly suggested that if migrants wanted to challenge their removal they should do so not in Washington, but in places where they are being held, like Texas.

The third judge on the panel, Karen L. Henderson, a Republican appointee, said almost nothing at the hearing.

[...]

Attorney General Pam Bondi told Judge Boasberg in a filing that she was satisfied that the Trump administration’s new invocation of the privilege was “adequately supported and warranted.”

It used to be that the judge was the one who needed to be satisfied.

UPDATE 03/28/2025:

  

Trump 2.0 - Challenging the courts

 

I'd say Trump is just letting Roberts know who's boss.  Challenging him.

Its behavior in the Alien Enemies Act case seems designed to rankle the chief in every conceivable way: Rather than win the case on the merits, the administration has launched a multilevel assault on the presiding judge, James Boasberg. It isn’t just that Donald Trump, along with his co-President Elon Musk, has called for Boasberg’s impeachment—though that escalation did prompt Roberts to issue a rare rejoinder. It’s that the Justice Department, too, has gotten in on the action, insulting Boasberg in insolent filings that openly question his integrity, neutrality, and competence. In short, the administration is deliberately staking this out as a battle between the executive branch and the judicial branch.

[...]

[T]he Trump administration seems eager to prevail in the court of public opinion, then leverage that victory to make the courts fall in line—the same play it’s running on Congress. The public-facing side of this strategy is obvious enough. First, the administration raced to deport Venezuelan migrants whom it accused, without evidence, of membership in the Tren de Aragua gang. Then it invoked the Alien Enemies Act of 1798 to argue that courts had no authority to stop the operation. When Boasberg ordered a halt to it nonetheless, high-ranking Trump officials bashed him in the media, while Trump and Musk called for his impeachment. House Republicans have now introduced articles of impeachment against the judge, and Musk is encouraging the effort by donating money to lawmakers who support it.

In court, the administration’s tone is only somewhat less contemptuous.

“The court,” the lawyers wrote, “has now spent more time trying to ferret out information about the government’s flight schedules and relations with foreign countries than it did in investigating the facts” before ruling for the migrants. (In reality, this information is largely public already, because the White House shared many details of the operation while boasting about the deportation flights.) Boasberg, they continued, was seeking “to beat a dead horse solely for the sake of prying from the government legally immaterial facts,” including “state secrets.” (The relevant facts are not “legally immaterial”—they could show whether the government broke the law!) The filing called on Boasberg to end his “unnecessary judicial fishing expeditions” and asked him to freeze proceedings while they begged an appeals court to bail them out.

  Slate

If they behave this way to a judge who has ruled favorably for Trump, imagine what they'll do to judges like Tanya Chutkan.

The DOJ’s crude treatment of Boasberg sends the unmistakable message that he is a rogue judge who needs to be reined in by a tough president and, ideally, a congressional impeachment. Attorney General Pam Bondi made her agency’s position clear on Wednesday, when she accused the judge of “meddling in our government.” Why, she asked, is Boasberg “trying to protect terrorists who invaded our country over American citizens?” (Again, there is no evidence these people are terrorists.) The thrust of her comments, echoed in DOJ filings, is that Boasberg is so biased and reckless that he cannot be trusted to oversee a case with such sensitive implications for national security.

[...]

The chief justice himself appointed Boasberg to the Foreign Intelligence Surveillance Court as presiding judge; in that position, he regularly reviewed, and ruled upon, extraordinarily sensitive requests by intelligence agencies to surveil communications between suspected spies and foreign powers. The surveillance court’s work is shrouded in secrecy, and even the smallest public disclosure could jeopardize vital intelligence operations.

[...]

And the fact that [Roberts] stepped into the fray to defend Boasberg is proof in itself that the administration has made a misstep. Moreover, a defining feature of Roberts’ jurisprudence is his intolerance for bad lawyering. His past votes against Trump reflect an aversion to sloppy and dishonest legal arguments, and he does not take kindly to insulting, patronizing, or underhanded reasoning. Yet that is exactly how the Justice Department has approached Boasberg in this case.

Trump 2.0 - Defying the courts - ongoing

The Trump administration pushed forward into a new phase of the rolling national constitutional crisis over the weekend, reportedly defying two different federal court orders imposing limits on its deportation of immigrants without due process. First, immigrant authorities deported Rasha Alawieh, a kidney transplant specialist at Brown University, despite a judge’s Friday order halting her removal. Second, authorities deported about 250 Venezuelan migrants, flouting another judge’s explicit directive to turn around American planes that hadn’t yet landed in El Salvador, where the migrants were being sent. The Justice Department claimed that it could not comply with the order barring Alawieh’s removal because it arrived too late. But the White House defended its defiance of the order prohibiting deportations of Venezuelans, insisting that the judge had no jurisdiction over the migrants—and that Trump holds absolute, unreviewable constitutional authority to expel noncitizens.

[...]

His order was not complied with. Instead, as the ACLU has shown, migrant flights that were already “in the air” did not return to the U.S. According to Axios, administration officials debated whether to turn the planes around. They decided not to, “on advice of counsel,” who reportedly said “the order is not applicable” because “they were already outside U.S. airspace.” (That is not a remotely plausible reading of Boasberg’s order.) El Salvador’s president then tweeted a story about the court order with the comment “Oopsie … Too late,” which Secretary of State Marco Rubio retweeted. White House press secretary Karoline Leavitt later contended that the administration did not “refuse to comply,” but rather that the order “had no lawful basis” and was issued after the migrants “had already been removed from U.S. territory.” Again, as the ACLU has pointed out, Boasberg’s order expressly applied to migrants already en route to El Salvador. So the White House did, quite clearly, defy the order, on the grounds that it could unilaterally conclude its requirements were not “lawful.”

If that is sufficient reason to disobey a court ruling, then all judicial rulings are merely advisory, or just suggestions, and the three coequal branches of government have been replaced by an elected monarch. [...] DOJ lawyers have argued that Trump does not even need the Alien Enemies Act of 1798 to order these deportations: Rather, he has an “inherent Article II authority to protect the nation” by determining that an immigrant “represents a significant risk to the United States” and “should be summarily removed from this country.”

[...]

Meanwhile, Trump himself has made it clear that this extreme and dangerous new vision of executive power does not apply to the presidency, but only his presidency: It is not a set of neutral principles, but an ever-evolving pretext for his own personal whims and cruelties, dressed up in legalese concocted by the conservative legal movement for precisely this purpose.

  Slate

Here we go...

Tyrant Baby has spoken: I'm the important one!  I won everything.  That lunatic judge didn't win anything!

From Trumpland, no doubt:  Sit down, JR.  We'll call on you when we need you to approve the king's moves.

That, too.

Pathetic.  They take their marching orders from Trump's bleats on his social media platform.

Just keep filing orders, I guess, and he'll keep ignoring them.

And in another case...

UPDATE 04:15 pm:

UPDATE 07:32 pm:

UPDATE 03/19/2025:

UPDATE 12:09 pm:

UPDATE 02:47 pm:

UPDATE 03/21/2025:

Explosion in 3...2...

 

 

UPDATE 04:25 pm:

And that's what that idiot Karoline Leavitt trotted out in a press conference earlier.

UPDATE 05:48 pm:

Not if you're king.  You don't have to do anything beside deliver edicts.

Gee, I hope it wasn't autopen signed.

UPDATE 03/19/2025: