Administration’s Details on Deportation Flights ‘Woefully Insufficient,’ Judge Says
"In an angry order, the judge, James E. Boasberg, told the Trump administration to explain why he should not find that officials had violated his instructions for the flights to return to the United States.
A federal judge in Washington edged closer on Thursday to holding the Trump administration in contempt for possibly having violated his ruling pausing the deportation of scores of Venezuelans under a rarely invoked wartime statute.
In a sternly written order, the judge, James E. Boasberg, told the administration to explain to him by Tuesday why officials had not violated his instructions when they allowed two flights of immigrants to continue on to El Salvador even after he directed the planes to return to the United States.
Judge Boasberg also called out efforts by the Justice Department to repeatedly stonewall his attempts to get information about the timing of the flights over the weekend.
“The government again evaded its obligations,” he wrote, adding that the Justice Department’s most recent filing about the flights was “woefully insufficient.”
Judge Boasberg’s three-page order was a remarkable display of frustration with an administration that has sought not only to use the extraordinary powers of the wartime law, the Alien Enemies Act, to pursue its immigration agenda, but has also stubbornly refused to provide even the most basic information about the deportation flights.
In the past few days alone, Justice Department lawyers made a last-minute effort to cancel a hearing before Judge Boasberg in which they were expected to discuss the flights in court. They then took the highly unusual step of asking the federal appeals court sitting over him to remove him from the case altogether.
All of this has unfolded as leading officials, like Attorney General Pam Bondi, and legions of President Trump’s supporters have assailed Judge Boasberg as a hack, a Marxist and a terrorist sympathizer. Mr. Trump himself has also entered the fray, demanding this week that Judge Boasberg be impeached.
That prompted a rare public rebuke from Chief Justice John G. Roberts Jr., who released a statement on Tuesday saying that the appeals process, not impeachment, was the proper way to deal with unfavorable rulings.
The Trump administration, in several cases filed against it in the past two months, has faced accusations of having failed to comply with judges’ orders, but none of the proceedings so far has resulted in a finding of contempt. If a judge did find officials in contempt, it could lead to financial penalties or even, if the offense was serious enough, to the jailing of administration officials.
But in the end, judges have little actual authority to enforce their orders in the face of disobedience. And legal scholars have expressed concern that if a judge eventually accuses the White House of disobeying an order and the administration presses forward anyhow, it could lead to a constitutional crisis.
Judge Boasberg, the chief judge in Federal District Court in Washington, has been trying for days, and in various ways, to get the administration to tell him — under seal, if needed — what time the two planes carrying the Venezuelan immigrants departed the United States, what time they left American airspace and what time they landed.
He originally instructed the Justice Department to provide him with that data by noon on Wednesday. He then extended the deadline by another day after department lawyers asked for more time as they considered whether to invoke a rare doctrine called the state secrets privilege in an effort to get out of turning over the information.
On Thursday, the government finally filed court papers under seal to Judge Boasberg, but hours later, he revealed in his order that the papers “repeated the same general information about the flights” that department lawyers had already given him in previous court filings and hearings.
Appearing to reach the end of his patience, Judge Boasberg, who has a reputation for being a measured and understated jurist, gave the government a series of ultimatums.
He told the administration to submit a sworn declaration by Friday at 10 a.m. from someone “with direct involvement in the cabinet-level discussions regarding invocation of the state secrets privilege.” He also instructed the Justice Department to tell him by Tuesday if the administration intended to actually invoke the state secrets privilege.
The conflict over the flight data was only one of the disputes roiling the case, which has emerged in recent days as a flashpoint over the administration’s attempts to expand presidential powers and to question the ability of judges to challenge the decisions of the executive branch.
The Justice Department is also seeking in two separate courts to reverse Judge Boasberg’s initial order pausing the deportation flights under the Alien Enemies Act. Department lawyers will appear in court on Friday in front of Judge Boasberg and on Monday in front of an appeals court to debate the issue with lawyers for some of the Venezuelan immigrants.
Almost from the moment Judge Boasberg’s provisional decision was entered on Saturday, the White House and the Justice Department have accused him of overstepping his authority by effectively commandeering the president’s prerogative to conduct foreign affairs.
But the question that Judge Boasberg is actually considering is whether Mr. Trump himself overstepped his authority by failing to comply with several specific provisions laid out in the Alien Enemies Act. The statute, which was passed in 1798, gives the government wide latitude during an invasion or a time of declared war to round up and summarily remove any subjects of a “hostile nation” over the age of 14 as “alien enemies.”
The administration has repeatedly claimed that the immigrants in question are members of a violent street gang called Tren de Aragua and should be considered subjects of a hostile nation because they are closely aligned with the Venezuelan government. The White House has also insisted that the arrival to the United States of dozens of members of the gang constitutes an invasion.
But lawyers for the deported Venezuelans argue that their clients are actually not gang members at all and should have the opportunity to prove it. The lawyers also maintain that while Tren de Aragua may be a dangerous criminal organization, it is not a nation state. Even if the group’s members have come to the United States en masse, they say, that does not fit the traditional definition of an invasion.
Moreover, they point out that the Alien Enemies Act has been invoked only three times in American history, all of them during times of clear-cut war: once during the War of 1812 and then again during World War I and World War II.
In court papers filed late Wednesday night, the lawyers for some of the immigrants said that at least five of them who were flown without due process to El Salvadorlast weekend were apprehended in part because they had tattoos that federal immigration agents claimed indicated ties to Tren de Aragua.
But the lawyers said that one of the men got his tattoo — of a crown sitting atop a soccer ball — because it resembled the logo of his favorite soccer team, Real Madrid. Another got a similar crown tattoo, the lawyers said, to honor the death of his grandmother.
A third immigrant was identified as being a member of the gang because of a tattoo on his left hand of a rose with paper money as its petals. But according to a sworn declaration filed by the man’s sister, the tattoo had no connection to a gang.
“He had that tattoo done in Aug. 2024 in Arlington, Tex., because he thought it looked cool,” the sister wrote.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump. More about Alan Feuer
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