Over the last week, the Trump administration appeared to move closer than ever to defiance of the courts. Despite an order from Federal District Judge James E. Boasberg forbidding reliance on the Alien Enemies Act as authority for peacetime deportations, the government flew over 200 people it claimed were gang members to El Salvador, where, upon their arrival, President Nayib Bukele added insult to injury by mocking the judicial order with a social media post saying “oopsie.” White House spokesman Steven Cheung endorsed Bukele’s childish lawlessness by approvingly retweeting it.
Cheung’s retweet was not a one-off. White House Press Secretary Karoline Leavitt made the following official statement: “A single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil.”
Put aside the obvious mistake of referring to an airplane as an aircraft carrier. Leavitt’s statement is outrageous because it seemingly asserts power to defy court orders with which the executive branch disagrees. Yet, if the administration takes the view that Judge Boasberg lacked the legal authority to enjoin the administration’s actions, the proper response is to appeal his order, not defy it, much less call for the judge’s impeachment—as President Trump did on Monday, prompting a rare rebuke from Chief Justice John Roberts.
To be sure, Leavitt’s statements and Department of Justice filings have suggested that the administration did not in fact defy Judge Boasberg’s order, claiming that his oral ruling requiring the government to turn around any planes then in the air was not binding and that by the time Judge Boasberg issued a written ruling, all of the people in question were outside the country. Whether or not that is factually accurate is difficult to say because yesterday the government failed to provide Judge Boasberg with detailed information about the timing of the relevant flights, citing national security concerns. However, a New York Times analysis indicates that the government’s timeline is inaccurate. It found that one of the planes “did not even leave American soil until after the judge’s written order was posted online.”
Unless Judge Boasberg’s options are limited by appellate rulings, further proceedings could go very badly for the government, perhaps even resulting in contempt sanctions against any officials who knowingly sought to deceive the court.
Thus, the stakes are very high. They are high for the people who were sent to El Salvador—most of whom have no criminal record and some of whom pretty clearly are not gang members but were misidentified as such based on cursory examination of their tattoos. The stakes are also very high for the rule of law. It is bad enough that Trump administration lawyers appear to be lying to a federal judge. It will get worse still if they move to open defiance.
Yet, even if it turns out that the administration has not technically lied and not technically violated Judge Boasberg’s court order, the administration has been acting reprehensibly. Its actions and statements can be justified, if at all, only if one endorses an extreme version of what legal scholar Roscoe Pound appropriately derided in 1906 as “the sporting theory of justice,” in which lawyers do whatever they can to win. Pound thought this characteristic of the American legal system unfortunate in private civil litigation where it leads “counsel to forget that they are officers of the court,” but treating the law as a winner-take-all game (complete with cynically deceptive tactics and bullying taunts) is far worse when coming from the government.
Assume for the moment that the Trump administration had all of the planes in El Salvador or en route thereto already when Judge Boasberg ordered that the flights be halted. Assume further that this state of affairs put the administration in technical compliance with the order. Even if so, that was true only because the administration first obtained a delay to the hearing and then used that delay to stealthily take the very action that was being contested in the hearing. Or, as Professor Martin Lederman described the timeline, “[d]uring an emergency federal court hearing about whether to enjoin the government from doing something, the government did that very thing, manifestly in order to circumvent the order that it anticipated the court would issue imminently.”
Unfortunately, this kind of gamesmanship is typical of the Trump administration. Consider its arguments and conduct regarding Mahmoud Khalil, the former Columbia student activist and U.S. permanent resident whom the Trump administration is attempting to deport based on a remarkably broad assertion of unreviewable executive power to declare someone’s continued presence in the United States contrary to the national interest. The Justice Department argues that Federal District Judge Jesse Furman lacked authority to block Khalil’s deportation because Furman sits in a courthouse in New York City but (according to the government), by the time Khalil’s lawyer filed a habeas corpus petition on his behalf, he was in custody in New Jersey, and he was thereafter transferred to an ICE facility in Louisiana.
It is true that federal law generally requires that habeas corpus petititions be filed in the jurisdiction where someone is in custody. However, as Justice Anthony Kennedy argued in a concurrence in a 2004 case, that rule should not apply where the government moves a detainee around to prevent access to a lawyer or otherwise defeat his efforts to obtain legal relief. There is reason to believe that the Trump administration has engaged in just this sort of manipulation with respect to Khalil.
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The Trump administration’s flirtation with open defiance of court orders is an existential threat to American constitutional democracy. If the administration ultimately bows to judicial decrees, even if reluctantly, that will be one catastrophe averted. However, Trump has already taken numerous actions that treat the law as at best an inconvenience to be circumvented. In so doing, he and his enablers have grievously wounded the rule of law.