Trump aiming for contempt of court fight to be on his terms
The blizzard of lawsuits against the Trump regime continues apace. The developments today in a relatively recent one, J.G.G. v. Trump, were truly wild, perhaps the wildest in any of the litigation against the regime so far. Ultimately, the best way to understand the executive branch's actions and positions in the case is to see all of them as bid to get the question of executive branch compliance with judicial orders in front of the Supreme Court as quickly as possible, and in a case where Trump is claiming he has vast, unilateral authority because he claims to be acting in the national security context. (He is deploying the same strategy in Perkins Coie v. U.S. Department of Justice.)
J.G.G. v. Trump arises from Trump's invocation of the Alien Enemies Act of 1798 as well as his "inherent" Article II authority to unilaterally deport certain Venezuelans in the U.S. to a jail in El Salvador, on the grounds that he believes they are members of dangerous gangs based in Venezuela and a threat to U.S. national security. The Alien Enemies Act – infamous for serving as the basis for the internment of Japanese-Americans during World War II – authorizes U.S. Presidents to act against alien enemies when the country has been invaded by a foreign nation or government. It has never been invoked by any President outside of wartime.
As soon as Trump indicated that he was going to deport the Venezuelans via executive order, attorneys for the group filed a class action. Because of the imminence of the government's actions, the plaintiffs sought an emergency temporary restraining order (TRO) to prevent the government from sending any class member out of the country. The federal trial court judge in the case, James Boasberg, granted the TRO on March 15, first announcing it from the bench. He ordered the U.S. government to turn around any planes headed to El Salvador or elsewhere with Venezuelan immigrants onboard under the administration’s purported invocation of the Alien Enemies Act. Later that day, flights carrying removed Venezuelans landed in El Salvador, apparently in derogation of the judge’s orders. Members of the Trump regime, including Marco Rubio, spent the weekend publicly complaining about Judge Boasberg, saying that the government had the right to disregard the court order and asserting sweeping, far-fetched claims about Trump’s unilateral powers to remove immigrants from the country on the grounds of national security. Elon Musk urged Boasberg's impeachment. The government appealed the TRO on 3/15 and subsequently has specifically sought Boasberg’s removal from the case.
Boasberg has a long and distinguished legal and judicial career. It includes a stint on the United States Foreign Intelligence Surveillance Court (FISC), a specialized tribunal dealing with sensitive national security matters. John Roberts put him on FISC.
Today, Boasberg held a hearing to determine whether the government had violated the TRO. During the hearing the government took some breathtaking positions. It refused to give the judge any information about the flights or the people on them, saying they did not have to because the President's broad national security powers means they don't have to tell the court anything about these matters. There is no legal basis for this claim. The government may seek to withhold classified information from a court but they must satisfy narrow, specific criteria to be permitted to do so. When Boasberg pointed this out, the government lawyer refused to address the criteria. Note that Boasberg was neither asking nor requiring the government to put any classified information into the public domain; ordinarily and on a regular basis the government submits classified information to courts under seal.
After the government refused to provide any factual information about the flights and the deportees on them, the hearing turned to the merits of whether the executive branch had violated the judge's orders. The government took two positions, both without any legal basis. First, it claimed that it did not have to comply with what the judge orally ordered from the bench and that it was in compliance with the follow-up written order. Second, it claimed that judges have no authority over U.S. flights once the flight is in international air space.
The hearing ended with Boasberg ordering the government to supply him with further facts about one of the flights, one that took off from the U.S. after the TRO issued by noon tomorrow. Presumably, the government will take the same position it took today regarding two flights that Boasberg ordered turned around - that the executive does not have to give the court any information. Sometime after the noon deadline, not necessarily tomorrow, we will get Boasberg's ruling on whether the government violated the TRO. If he rules it did, he can issue a contempt of court judgment against the executive branch officials who disregarded the TRO.
All of the government's actions in J.G.G. - the complete lack of due process afforded the plaintiffs, the stonewalling on providing facts to the judge, the baseless legal claims - are egregiously lawless. The sheer scale of the lawlessness and the apparent total disregard for a judge's orders seem designed to elicit a contempt of court judgment, setting up a concrete showdown between the judiciary and the executive. Any contempt judgement from Boasberg will be appealed by the government. Such an appeal would likely reach the U.S. Supreme Court, where the Trump regime clearly likes its chances of the Court ignoring all legal precedent and constitutional history to allow the executive branch to wrap itself in national security to buck the constitutional power of the judiciary. If and when the merits of the case were to reach the Supreme Court and were it to rule in favor of the Trump regime – quite possible outcomes – the Roberts Court would be allowing the President to deport people from the United States without notifying them of the grounds and without any opportunity to rebut them. This would amount to licensing the President to kidnap anybody he wants to have them removed from the country to wherever he directs any time he says he is acting in the interests of national security.