A federal judge lashed out at the Trump administration Monday for refusing to answer questions about flights deporting Venezuelan migrants under the Alien Enemies Act after he ordered them to turn around the planes.
It was a remarkable hearing in which a Justice Department attorney repeatedly declined to provide details about the flights that landed in El Salvador on Saturday evening, saying he was “not authorized” to do so, a rare instance of an attorney rebuffing a judge’s questions.
U.S. District Court Judge James Boasberg called the hearing after a Monday morning filing from the American Civil Liberties Union (ACLU) arguing the government may have violated a court order halting the flights — apparently refusing to turn them around after the judge barred them.
At Monday’s hearing, Deputy Associate Attorney General Abhishek Kambli contended the judge’s oral command wasn’t binding because the judge didn’t include the instruction about airborne flights in his written order.
“I memorialize it in shorthand, but you’re telling me that very clear point, that you could disregard it, because it wasn’t in the written order?” pressed Boasberg, an appointee of former President Obama.
“Wouldn’t it have been a better course to return the planes around the United States as opposed to going forward and saying, ‘We don’t care, we’ll do what we want’?” Boasberg asked later in the hearing.
“Your Honor, that’s not the approach that we’ve taken in this argument,” Kambli responded.
The arguments from Kambli were in lockstep with assertions from the White House earlier in the afternoon.
“All of the planes subject to the written order of this judge departed U.S. soil, U.S. territory before the judge’s written order,” White House press secretary Karoline Leavitt told reporters.
She added the White House has “questions about whether a verbal order carries the same weight as a written order, and our lawyers are determined to ask and answer those questions in court.”
Judges routinely give oral orders from the bench, and they are binding, just like written orders posted to a court’s docket.
The ACLU on Monday said Boasberg issued an oral order to turn around the planes at approximately 6:45 p.m. EDT. Those instructions were also posted to the court’s docket at 7:26 p.m. EDT.
The ACLU included flight information it received from the government, indicating the planes did not land in Honduras until 7:36 p.m. EDT and 8:02 p.m. EDT on Saturday. The group suggested the planes later took off again before ultimately landing in El Salvador, arriving hours after each of Boasberg’s orders.
The ACLU has also disputed the Justice Department’s insistence that none of the flights took off from the U.S. after Boasberg’s rulings, citing a media report.
At one point in the hearing, Boasberg questioned why the flights were arranged at all, noting that the government knew Saturday morning they would face a hearing on the legality of the flights at 5 p.m.
The Trump administration on Saturday invoked the Alien Enemies Act, which it said grants the power to deport without hearing any Venezuelan it deems to be a member of the Tren de Aragua gang.
El Salvador has agreed to house the 361 deported migrants removed on the flight, though 137 were deported under the Alien Enemies Act.
At various points during his exchange with Kambli, Boasberg expressed surprise at the refusal to answer questions or disclose the information to a jurist.
He noted if the flight information couldn’t be shared publicly they could use the “husher” to block out sound when he approached the bench.
He also noted that Kambli did not seem to assert the information was classified, pointing to his background on the Foreign Intelligence Surveillance Court, and offered the chance to share the information with him in a secure setting.
As the administration simultaneously seeks to appeal Boasberg’s ruling, it has looked to remove the judge from the case, saying he has employed “unusual and improper” procedures.
At the end of Monday’s hearing, the judge ordered the administration to provide information about the flight timelines, or provide justification for refusing to do so, by noon EDT on Tuesday.
“I’m going to detail this in a written order since apparently my oral orders don’t carry much weight,” the judge quipped.
