The Trump Administration has been treating court orders like mere suggestions. Judges are fighting back. Also in this newsletter:
• People either love or hate Phish
• An M.I.T. professor on how China is likely to respond to U.S. tariffs
• Richard Brody reviews Ryan Coogler’s new film, “Sinners”
Photograph by Jose Luis Magana / AP
Ruth Marcus
Marcus writes about politics and the law.
We’re past the point of wondering whether the Trump Administration will violate court orders. It will—even as it refuses to acknowledge the obvious defiance. The pressing question is how forcefully judges will respond—and whether the Supreme Court will back them up. Developments this week bode well, at least when it comes to the first part of that challenge.
On Tuesday, the U.S. district judge Paula Xinis, of Maryland, hearing the case of Kilmar Armando Abrego Garcia—the Salvadoran man illegally deported to and imprisoned in El Salvador—raised the prospect of contempt proceedings against the government. For good reason: the Trump Administration’s refusal to provide any information about what it is—or, more to the point, isn’t—doing to obtain Abrego Garcia’s release doesn’t just violate Xinis’s previous instructions; it flies in the face of the Supreme Court’s ruling that the Administration must “ ‘facilitate’ Abrego Garcia’s release from custody” and “share what it can” about its efforts to do so.
Xinis, upping the ante in the face of the government’s non-answers, told White House attorneys to expect “two weeks of intense discovery.” She set a schedule for Abrego Garcia’s lawyers to seek government documents and to question Administration officials, adding pointedly, “Should Defendants fail or refuse to engage in the above-described discovery in good faith, Plaintiffs are free to seek separate sanctions on an expedited basis.” This judge is not backing down—nor should she. Gratifyingly, she was backed up by the U.S. Court of Appeals for the Fourth Circuit, which issued a swift and stark rebuke of the Administration on Thursday, in turning down its request to block Xinis’s order. The Administration’s position “should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” Judge J. Harvie Wilkinson III, a Ronald Reagan appointee, wrote.
The U.S. district judge James Boasberg, in the District of Columbia, is several weeks further along in dealing with the Administration’s obstructionism. He is not backing down, either. On Wednesday, Boasberg issued a scorcher of a ruling: forty-six pages detailing the government’s frenzied efforts to ship hundreds of Venezuelan men to El Salvador without due process, and its blatant violation of Boasberg’s efforts to prevent those deportations. The underlying case is out of Boasberg’s hands, as the Supreme Court said it had been brought in the wrong jurisdiction. But the judge insists that the Court’s dismissal isn’t the end of the matter, for a simple reason: “The Constitution does not tolerate willful disobedience of judicial orders—especially by officials of a coordinate branch who have sworn an oath to uphold it.”
The government’s actions, Boasberg found, “demonstrate a willful disregard” for his order, enough to “conclude that probable cause exists to find the Government in criminal contempt.” What next? The government could fix the problem by obtaining custody of the Venezuelans and giving them a hearing, Boasberg said, or it could propose some other remedy, which he would consider. Failing that, he would move on to figuring out who exactly to charge with contempt. And, if the Trump Administration declined to prosecute that person (which it will almost certainly do), Boasberg added, he would appoint an outside lawyer to do the job, a move that is mandated under the Federal Rules of Criminal Procedure but not often used. (If deployed, brace for litigation over whether that violates the Constitution’s separation of powers.)
Boasberg is playing judicial hardball, but it is well warranted. The Administration has acted as though orders from lower courts can be sneered at. The Supreme Court has effectively encouraged this behavior. In the Abrego Garcia case, the Court’s mixed-message ruling (distinguishing between “facilitating” and “effectuating” Abrego Garcia’s return and noting the “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs”) gave the Administration an opening to balk. In the Venezuelan case, as the three dissenting liberal Justices noted, the government’s conduct posed “an extraordinary threat to the rule of law,” and yet the majority “now rewards the Government for its behavior” by stepping in with emergency intervention.
