While U.S. District Judge James Boasberg shines a light on whether the Trump administration violated his orders on deportations, the government just attempted a legal version of a blackout. Invoking the “state secrets” privilege, the Justice Department told Boasberg that he has all the facts he needs and that the privilege invocation “forecloses further demands for details that have no place in this matter.”
Attorney General Pam Bondi took that position in a court filing Monday to the Washington, D.C., trial judge, on the same day that a federal appellate panel heard arguments in the DOJ’s attempt to halt the judge’s temporary restraining orders while it appeals them.
Despite that pending appeal, whether officials violated Boasberg’s orders is a separate matter that he is still examining.
Boasberg issued the restraining orders March 15, temporarily halting Trump’s use of the rarely invoked Alien Enemies Act to summarily deport alleged Venezuelan gang members. The judge subsequently told the government to explain how it didn’t violate his orders when it failed to return people on certain planes that had left the U.S. that same day. Boasberg expressed skepticism about the government’s ability to invoke the state secrets privilege in this situation, but he gave officials a chance to try.
That they have done so adds another wrinkle to Boasberg’s attempt to get to the bottom of what happened and what he’ll do about it if he finds any violation. “The Executive Branch hereby notifies the Court that no further information will be provided,” the DOJ wrote in Monday’s filing, arguing that the information the judge wants is subject to the privilege “because disclosure would pose reasonable danger to national security and foreign affairs.” The DOJ also wrote that it intends to address Boasberg’s order to explain its compliance Tuesday “by demonstrating that there is no basis for the suggestion of noncompliance with any binding order.”
The keyword there might be “binding,” which suggests an admission that the government violated his order but that, in the government’s view, it doesn’t matter because the judge lacked the authority to issue the order in the first place (again, in the government’s view).
Whether the administration can invoke the state secrets privilege could be a question that, like the validity of his underlying orders, is something that an appellate court — and perhaps the Supreme Court — will need to resolve.
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