Courts Rush To Beat Back A New Round Of Trump Lawlessness
INSIDE: Paula Xinis ... James Boasberg ... Brian Murphy
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
It’s Happening Slower Than You Can See
The historic constitutional clash over President Trump’s lawless immigration policies continues at a pace that is difficult for casual observers to follow on daily basis, but a burst of new activity Wednesday offers a chance to frame up where things now stand and where they’re likely headed.
The Contempt Proceedings
The two cases in which a constitutional clash is ripest are already in the early stages of contempt of court proceedings, but they have been either slowrolled by the Trump administration or put on hold by an appeals court:
Abrego Garcia: U.S. District Judge Paula Xinis of Maryland has ordered expedited discovery into what the Trump administration has done and and plans to do to facilitate the return the mistakenly deported Kilmar Abrego Garcia. She plans to use the information gathered to determine whether the Trump administration has acted in good faith or stonewalled her orders. But the Trump administration has slowrolled the discovery process, too. Just yesterday, the parties filed a sealed joint motion over a discovery dispute. While the exact nature of the dispute is unclear, Xinis issued a public order later in the day that revealed the administration is invoking state secrets and deliberative process privileges to thwart discovery requests, forcing another round of delays in the case.
AEA deportation flights: U.S. District Judge James Boasberg of DC has already found probable cause that the Trump administration is in criminal contempt of court for ignoring his order not to deport detainees to El Salvador under the Alien Enemies Act. This is the original AEA case, brought in a late night rush the weekend of March 15. The DC Circuit Court of Appeals has imposed an administrative stay on the contempt proceedings, but has been fully briefed since last week and could rule at any time.
The Other Abrego Garcia-Like Case
The Trump administration filed notice yesterday that it is appealing U.S. District Judge Stephanie Gallagher’s order that it facilitate the release from El Salvador’s CECOT prison a Venezuelan man deported there on March 15 in violation of a 2024 settlement agreement protecting asylum seekers like him.
The AEA Detainees In El Salvador
The original Alien Enemies Act case in front of Judge Boasberg has now morphed into a case focused on returning the AEA detainees in El Salvador and providing them with the due process they never received.
In a hearing yesterday, President Trump’s own words came back to haunt him. Boasberg repeatedly pressed a DOJ lawyer on Trump’s admission that he could pick up the phone and secure Abrego Garcia’s release and on DHS Secretary Kristi Noem’s public remarks at the Salvadoran prison that it was one of the “tools” in the administration’s toolbox. Those statements undermine the administration’s already flimsy argument that the detainees are not in its control but rather the control of El Salvador.
Boasberg seemed inclined to rule that the detainees are in the constructive custody of the United States and therefore can be returned and provided due process, though the exact contours of how that would work remain unclear. Boasberg ordered expedited discovery before ruling in the case, though he acknowledged that the Trump administration may slowroll him just like it’s done in discovery in the Abrego Garcia case.
Third Country Removals
With news reports and evidence on the ground suggesting that the Trump administration was about to deport a group of Asian detainees to Libya yesterday aboard a U.S. military plane, U.S. District Judge Brian Murphy of Massachusetts issued an extraordinary emergency clarification affirming that his existing order barring removals to third countries applied to Pentagon flights, too. On his own initiative, Murphy also told the parties he is considering adding the Defense Department as a party to the case.
All of this comes after the administration seemed to violate his original order in March that barred third-country removals by using a military plane to transport detainees from Gitmo to El Salvador. Murphy has ordered limited discovery to probe the circumstances of that flight, and this case could yet yield a contempt of court finding, but it’s not quite as far along as the contempt proceedings highlighted above.
Appeals Court Thwarts Trump’s Louisiana Gambit
The 1st Second Circuit Court of Appeal ruled that detained Tufts University student Rumeysa Ozturk can challenge her detention in federal court in Vermont rather than Louisiana, where she is being currently held.
Big Law Flinches On Pro Bono Immigration Work
Some major law firms have backed away from the kind of pro bono work in challenging President Trump’s immigration policies that they engaged in during his first term, the NYT reports.
The Retribution: Joe Biden Edition
The Trump administration is making plans to release the audio of the investigative interview Special Counsel Robert Hur did with President Biden in his classified documents probe, Politico reports. This was the interview that famously led Hur to conclude Biden was an “elderly man with a poor memory.” The transcript of the interview has already been released.
The Destruction: National Endowment For The Arts Edition
All 10 NEA arts directors are leaving the agency, according to the WaPo.
Thread Of The Day
From The Frying Pan Into The Fire
Jeh Johnson, secretary of homeland security under President Obama, is retiring from Paul Weiss – which notoriously struck a deal with President Trump to get out from under his executive order targeting the firm – after being elected co-chair of the Columbia University board of trustees.
A Really Good Point
I’ve seen a lot of coverage of Trump’s attack on higher ed that blames the victims for becoming overdependent on government funding for research, as if universities are piglets sucking at the federal teat. The much more accurate description is of a mutually dependent relationship. But if I had to say who has the upper hand, it’s much closer to the other way around: government – which is to say all of us – is dependent on higher end.
Josh Marshall makes this point well: “To listen to a lot of news reporting, and by no means only Trump-friendly coverage, you might think that the big research universities got here like so many academic Amtraks. Down on their luck industries that were falling apart and needed federal support to survive.”
Only in a down-is-up world would anyone assess higher ed’s contributions in the post-World War II era in pure science, research, and development across the whole range of technical and scientific disciplines and conclude that universities got a sweetheart deal and the federal government got rooked.
Fetterman Watch
The day before the publication of last week’s disturbing NY Mag piece about Sen. John Fetterman’s health, the Democratic senator broke down in a meeting at his DC office with teachers union representatives, the AP reports:
Before long, Fetterman began repeating himself, shouting and questioning why “everybody is mad at me,” “why does everyone hate me, what did I ever do” and slamming his hands on a desk, according to one person who was briefed on what occurred.
As the meeting deteriorated, a staff member moved to end it and ushered the visitors into the hallway, where she broke down crying. The staffer was comforted by the teachers who were themselves rattled by Fetterman’s behavior, according to a second person who was briefed separately on the meeting.
A Brief Meditation
It’s been too long since I shared volcano content:
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Another great collection of subjects, all worth exploring in depth. This administration will go down as great but only in the sense of the degree of disruption it has caused. People should remind themselves that sometimes upheaval of settled laws and processes is not a good thing and must be resister
I love this edition ending with a mountain “venting.” The parallels are beyond words, or my words, anyway.
Thanks, David.