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A federal judge still has questions about the Trump administration’s compliance with his orders, and the administration is still trying not to answer them.
On Wednesday, U.S. District Judge James Boasberg gave the government another day to get back to him on the matter. But his latest order suggests he isn’t pleased — or persuaded — by the government’s arguments thus far regarding its deportation flights over the weekend and its litigation conduct since then.
Following a hearing Monday at which the government didn’t want to answer Boasberg’s questions, the judge issued an order requiring officials to submit a sealed declaration answering outstanding questions about Saturday’s deportations, which the judge had ordered halted while litigation continues over President Donald Trump’s authority under the Alien Enemies Act.
Those answers were most recently due by noon Wednesday, but ahead of that deadline, the government asked Boasberg for more time. The request noted that the Justice Department is appealing his orders and said addressing his questions “would undermine the Executive Branch’s ability to negotiate with foreign sovereigns in the future by subjecting all of the arrangements resulting from any such negotiations — as well as the negotiations themselves — to a serious risk of micromanaged and unnecessary judicial fishing expeditions and potential public disclosure.” The government also said it’s evaluating whether to invoke the state secrets privilege regarding information sought by the judge.
In his latest order on Wednesday, Boasberg wrote that he wasn’t seeking information for a “fishing expedition” but rather “to determine if the Government deliberately flouted” his orders and “if so, what the consequences should be.”
Boasberg expressed doubt about whether the government could successfully keep information under wraps on state secrets grounds, noting that it “appears to be an uncommon occurrence for the disclosure of unclassified information to threaten state secrets.” The judge questioned the purported danger raised by the government about giving him that information in private, observing that the government itself has publicly promoted details of the flights.
And the fact that officials are appealing his temporary restraining orders doesn’t affect the judge’s interest in finding out whether the government violated them. He wrote that he’s seeking information “to determine whether the Government complied with the TROs. Whether those TROs were legally defective or legally sound does not govern the compliance inquiry.”
The most recent order followed Trump’s call for Boasberg’s impeachment and a rare public statement from Chief Justice John Roberts that reiterated that the proper way to respond to an adverse ruling is to appeal it, not to try to impeach the judge. Boasberg seemed to acknowledge that broader issue in his order Wednesday, writing: “As the Supreme Court has made crystal clear, the proper recourse for a party subject to an injunction it believes is legally flawed — and is indeed later shown to be so flawed — is appellate review, not disobedience.”
Whether Boasberg becomes officially convinced that such disobedience has occurred in this case remains to be seen. The administration has a new deadline of noon Thursday to answer his questions or to invoke the state secrets doctrine. Boasberg has already expressed skepticism of how the latter might apply, but even if a state secrets argument is unsuccessful, it could buy the government more time, to the extent that delay is part of its litigation strategy. If instead it attempts to answer his questions, we should learn whether the judge finds those answers satisfactory — and if not, what the “consequences” of such a finding will be.
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