The details matter
It is exhausting to live in a country in turmoil. With the Trump regime and the Republican Fascists wilding and so many elite institutions bending the knee, it can be overwhelming to pay attention. But I believe we must, if only to keep a record for the future. When it comes time to rebuild a federal state that is a constitutional democracy committed to rule of law and secular pluralism – and I have no doubt that time will come – the people rebuilding need to know who tried to protect these things and the steps they took. For us now, it is important to pay attention to who is trying and what they are doing: we must know who to support, protect, and join with. This brings me back to Judge Boasberg, the federal district court judge hearing J.G.G. v. Trump.
Boasberg is locked in legal trench warfare with the Trump executive branch. Trump and the Bondi-led Department of Justice are going all out to defy Boasberg's very basic, very reasonable efforts to determine if the executive branch violated the emergency temporary restraining order Boasberg handed down when it first came to light that ICE and the Department of Homeland Security were spiriting Venezuelans out of the U.S. to a prison in El Salvador. Every single day this week, the executive has defied Boasberg's orders seeking simple facts about when planes took off. With each new filing, the executive offers more outlandish justifications for its refusal to supply the court with the information requested. The latest is that the "state secrets" privilege covers the matter. I won't go into the details of the doctrine; suffice it to say that with the president of El Salvador, Marco Rubio, and Trump tweeting about the flights on Xitter, it is fantastical for the executive branch to now suggest that the Cabinet is trying to decide whether to claim information about these flights must be kept secret from a federal trial judge.
In addition to absurd content, the timing and style of the executive branch's filings has been obnoxious. Sometimes filed late, the executive's communications have insulted and belittled Boasberg. Ordinarily this would be surprising conduct from a party trying to win before a judge, however, the Trump executive is pretty clearly trying to goad Boasberg into comparatively quickly holding the executive branch in contempt of court for violating the TRO and perhaps for violating the fact-finding orders Boasberg has issued to figure out if the TRO was indeed violated. Boasberg has not allowed himself to be drawn. He is proceeding methodically and shrewdly, giving the executive branch every opportunity to comply. He has told them they may submit information under seal and that they may give arguments as to why the state secrets privilege applies should they in fact assert it. Rather than engage constructively, the executive is compiling a track record of utter intransigence – and this plays to Boasberg's advantage. If and when Boasberg does find that the executive branch violated the emergency TRO, you can be sure the executive will appeal that judgement and the issue may well land in the Supreme Court. As I have written previously, John Roberts surely wants to dodge having to find that the executive is openly defying the judiciary. Boasberg's strategy is going to make it that much harder for Roberts and the other justices to put their heads in the sand.
Proceedings continue apace. In an order handed down today, March 20, 2025, Boasberg has directed the executive branch as follows.
1) By March 21, 2025, at 10:00 a.m., Defendants shall submit a sworn declaration by a person with direct involvement in the Cabinet-level discussions regarding invocation of the state-secrets privilege;
2) By March 25, 2025, Defendants shall submit a declaration indicating whether or not the Government is invoking the privilege;
3) By March 25, 2025, Defendants shall file a brief showing ... [on the facts they have already disclosed] ... that they did not violate the Court's Temporary Restraining Orders by failing to return class members removed from the United States on the two earliest planes that departed on March 15, 2025 [.]
In the same order Boasberg states that the plaintiffs may take until March 31, 2025 to file any response to the executive branch's brief on the TRO. With item (3), Boasberg is indicating he thinks the facts already in the record strongly indicate that the executive branch violated the TRO. He's giving them a chance to make the case otherwise. With (2), Boasberg is telling the executive to either assert the state secrets privilege to avoid disclosing further facts to the court or else disclose the requested information. With (1), Boasberg is telling the executive they have to supply a sworn statement from the Secretary of State (Marco Rubio) or possibly the Secretary of Homeland Security (Kristi Noem) attesting to the claim that the Cabinet is actually now in discussions about invoking the privilege.
Judge Boasberg's patient, canny inquiry into the doings of the executive branch case deserves to be known and appreciated in all its detail. He is demonstrating how a judge can act with restraint and grace to handle an obdurate litigant, thereby letting that party hoist itself on its own petard.