Judge Sets Stage to Find Government in Contempt of Court

Federal District Court Judge James Boasberg held a “show cause” hearing to delve into the government’s flight of about 260 Venezuelans to a prison in El Salvador despite his order to turn the flights around.

Boasberg pulled details from Department of Justice attorneys to construct a timeline of government actions:

• Donald Trump signed an order to activate the Alien Enemies Act on Friday 14 March 14.
• A lawsuit was filed at 01:12 on 15 March against planned expulsion of five Venezuelans under the executive order. Activation of the Alien Enemies Act would not be publicized until later in the day.
• Boasberg called a hearing at 05:00 and began the hearing at 07:30. At 09:40 he issued an order to bar deportation of the five men named in the original complaint. He put the hearing in recess when government lawyers needed to go and find information he was asking for that they did not know.
• Flights were being prepared to carry about 260 Venezuelans to the notorious CECOT prison in El Salvador while this was underway.
• The hearing resumed at 17:00. Boasberg expanded the scope of the issue to all the Venezuelans targeted for expulsion under the executive order. Around 18:45 he issued a verbal order to halt or turn around any flights carrying them. His written order was logged at 19:27.
• Two flights were in the air. A third took off after he issued his order. The government claimed it could not turn the flights around and could not return any of the people on board.
• Eight women and one man on the flights to El Salvador were returned to the USA.

Boasberg was not well impressed by anything coming from the DOJ’s attorneys.

About rushing to send the flights while hearings were in progress, Boasberg said, “Why when you knew that I was having a hearing … why wouldn’t the prudent thing be to say, ‘Let’s slow down here. Let’s see what the judge says. He’s already enjoined the removal of five people, it’s certainly in the realm of possibility that he would enjoin further removal. Let’s see what he says.’”

DOJ attorneys refused to answer questions about flight details on the grounds of  state secrets privilege. Attorney Drew Ensign admitted he was not aware of anything classified in the flight information.

Boasberg said he had never come across a situation where the government refused to answer a judge on the grounds of state secrets when the information was not classified. He added that courthouses have secure facilities for review of sensitive information.

Boasberg schedule a hearing 8 April on the state secrets invocation. He said there would probably be more hearings if he finds probable cause that the government violated his order.

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