‘The Solution-less Mire’
In a careful, incremental, and modulated ruling designed to withstand an all but certain appeal by the Trump DOJ, U.S. District Judge James Boasberg of D.C. ordered the administration to facilitate the return to the United States of a subset of the Venezuelan nationals spirited out of the country 11 months ago under the wartime Alien Enemies Act.
It marks the second time Boasberg has ordered the return of AEA detainees. The first time was in emergency rulings he issued as the AEA deportations unfolded over a weekend last March, when he ordered the removals stopped and the planes carrying the detainees to El Salvador turned around. The Trump administration defied those orders, but Boasberg’s subsequent efforts to hold those responsible in contempt of court have been thwarted twice by the D.C. Circuit Court of Appeals, where the administration’s second appeal is currently languishing.
Throughout the latest round of litigation over how to give the AEA detainees the due process they were initially denied, the Trump DOJ has been sneering toward Boasberg, rejecting the premises of his orders and barely engaging with his requests for information and proposed solutions. In yesterday’s order, Boasberg noted the pattern: “Apparently not interested in participating in this process, the Government’s responses essentially told the Court to pound sand.”
Boasberg sprinkled similar admonitions throughout his ruling, which I’ve excerpted and condensed here:
Defendants at every turn have objected to Plaintiffs’ legitimate proposals without offering a single option for remedying the injury that they inflicted upon the deportees. … [I]t is up to the Government to remedy the wrong that it perpetrated here and to provide a means for doing so. … [M]indful of the flagrancy of the Government’s violations of the deportees’ due-process rights that landed Plaintiffs in this situation, the Court refuses to let them languish in the solution-less mire Defendants propose.
It is not clear how many, if any, of the 137 former detainees who were held for months in El Salvador’s CECOT prison wish to return to the United States, where they face certain detention and the threat of being deported to a third country again. But for those who make it out of Venezuela to third countries and who want to return, Boasberg crafted his order to give them relief similar to that accorded by the Supreme Court to Kilmar Abrego Garcia, who was wrongfully deported the same weekend in March but on a different flight and not as an alleged alien enemy.
But Boasberg stopped short for now of ordering the same relief for those detainees still in Venezuela, so as not to interfere in the executive branch’s conduct of foreign relations and risk being overturned on appeal. Those still in Venezuela will, however, be allowed to begin filing legal challenges to President Trump’s AEA proclamation and their designations as member of Tren del Aragua. Boasberg saved for another day the question of remote hearings for the detainees abroad.
All of this just sets the stage for another round of appeals, which could drag on for months, further delaying any accountability for the administration’s wrongful conduct.
Mass Deportation Watch
- Minnesota: In an extraordinary outcome, the Trump DOJ moved to dismiss with prejudice felony charges of assaulting an ICE agent against two immigrants in Minneapolis, one of whom was shot by the agent in a widely covered Jan. 14 incident. “Newly discovered evidence in this matter is materially inconsistent with the allegations in the Complaint Affidavit … as well as the preliminary-hearing testimony … that was based on information presented to the Affiant,” federal prosecutors said in their motion to dismiss the case. The judge granted the motion this morning and dismissed the case.
- Chicago: Newly released body camera footage of the three Border Patrol agents who shot Marimar Martinez of Chicago five times records one agent saying “Do something, bitch,” before another says, “It’s time to get aggressive and get the fuck out.”
- Minnesota: U.S. District Judge Nancy Brasel ruled that ICE has been engaged in the wholesale deprivation of the constitutional rights of detainees at the Whipple federal building just outside of Minneapolis. “The Constitution does not permit the government to arrest thousands of individuals and then disregard their constitutional rights because it would be too challenging to honor those rights,” Brasel wrote.
For the Record …
Last Friday’s Morning Memo led with a report in the Star Tribune that the Minnesota Bureau of Criminal Apprehension and FBI were set to announce a joint investigation into the killing of Alex Pretti. No such announcement has been forthcoming, and yesterday Minnesota Attorney General Keith Ellison told senators that the feds are still blocking state and local authorities from participating in the investigations of the shootings of Pretti and Renee Good.
Good Read
Everything you want to know — and a lot you don’t want to know — about how Kristi Noem and Corey Lewandowski are running DHS, via the WSJ.
The Retribution: Mark Kelly Edition
U.S. District Judge Richard Leon of D.C., long a colorful jurist, let the exclamation points fly in ruling that Defense Secretary Pete Hegseth violated the constitutional rights of Sen. Mark Kelly (D-AZ) by attempting to downgrade his rank and retirement benefits over his participation in a video reminding troops of their duty not to follow unlawful orders.
It Was Jared
The controversial whistleblower complaint that DNI Tulsi Gabbard allegedly tried to bury involves an intercepted communication between two foreign national who discussed President Trump’s son-in-law Jared Kushner, according to the WSJ and a matching NYT piece.
Their phone call was intercepted by a foreign intelligence service and provided to the National Security Agency, the NYT reported.
“It couldn’t be determined which country the foreign nationals are from or what they discussed about Kushner,” the WSJ reported, but both papers noted that the conversation was at least in part about Iran.
The NYT went a little further:
The foreign nationals, they said, were commenting on Mr. Kushner’s influence with the Trump administration. At a time last year when Mr. Kushner’s role in Middle East peace talks was less public than it is now, the foreign officials were recorded saying that he was the person to speak to in order to influence the talks.
The intercept also included what officials described as “gossip” or speculation about Mr. Kushner that was not supported by other intelligence.
One final tidbit, via the NYT: “Mr. Kushner’s name was redacted in the original report from the National Security Agency, but people reading it, including the whistle-blower, were able to determine that the reference was to him.”
Judges Not Fighting US Attorney Firing
The federal judges in the Northern District of New York put out a pretty milquetoast statement that suggest they are not going to fight the Trump DOJ’s immediate firing of the interim U.S. attorney they themselves had just appointed:
The Retribution: Blue States Edition
U.S. District Judge Manish S. Shah of Chicago blocked the Trump administration from clawing back $600 million in public health funds from four blue states — California, Colorado, Illinois and Minnesota — ruling that the evidence showed its decision was “based on arbitrary, capricious or unconstitutional rationales.”
Thread of the Day
Germany Prepares for War
That’s not a headline I expected to see in my lifetime.
With President Trump abandoning 80 years of U.S. defense of Europe and with Russia’s territorial ambitions uncontained, Germany is racing to prepare for armed conflict, the WSJ reports:
Germany’s military-intelligence agency estimates that within the next three years, Russia, whose armies poured into Ukraine in 2022, will have amassed enough weaponry and trained enough troops to be able to start a wider war across Europe. [Germany’s top military officer] says a smaller attack could come at any time.
Future Generations Weep
President Trump personally announced at the White House that he is reversing the EPA’s nearly 17-year-old scientific finding that greenhouse gas emissions pose a threat to human health. The elimination of the endangerment finding — the foundation for federal regulation of GHG emissions — puts the United States, already an international laggard on climate change policy, back at square one.
“Reversing the endangerment finding has been seen as the holy grail for those who deny the science of climate change. That’s because if the repeal is upheld in court, it could also prevent future administrations from restoring regulations to curb greenhouse gases,” climate change reporter Lisa Friedman wrote in a piece that adopts the typically restrained NYT style but still manages to vibrate with barely concealed outrage.
Beating back the flames of fascism while the fascists fan the flames of global warming is the dual-threat 21st-century apocalypse that I can still scarcely get my head around.
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