The Trump administration and Republicans in Congress have been waging a multifront attack on the federal judge who is deciding whether the president may use a wartime statute to deport people suspected of belonging to a Venezuelan street gang.
Lawyers for the Justice Department began the week by trying to kick the judge, James E. Boasberg, off the deportation case and then filed court papers declaring he had no authority to stop flights of immigrants from leaving the country under the law, known as the Alien Enemies Act.
On Tuesday, Rep. Brandon Gill, R-Texas, filed articles of impeachment against the judge, accusing him of having abused his power. That same day, President Donald Trump endorsed the idea of impeachment, calling Boasberg, a centrist Democrat who lived with Justice Brett M. Kavanaugh while they were at Yale Law School, a “Radical Left Lunatic.”
All of this — and more — prompted a rare public rebuke by Chief Justice John G. Roberts Jr. who issued a statement Tuesday afternoon essentially telling Boasberg’s critics to knock it off.
“For more than two centuries,” the chief justice said, “it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.”
“The normal appellate review process exists for that purpose,” he added.
From the moment Boasberg, 62, issued his ruling pausing Trump’s summary deportation flights Saturday, the case has emerged as a flashpoint in a larger debate over presidential power, the use of wartime authorities to skirt normal immigration practice and the role of the courts in reviewing the actions of the executive branch.
It was also the latest — and perhaps most serious — struggle yet between federal judges across the country who have sought to curb many of Trump’s recent executive actions, and an administration that has repeatedly come close to openly refusing to comply with judicial orders.
Still, the actual order that has so enraged Republicans in this case was not a permanent injunction but a provisional decision reached at a Zoom hearing so hastily convened that Boasberg did not even have time to put on a suit or robe. And the judge could end up revising his decision when lawyers for the Justice Department and for five people accused of being members in the gang, Tren de Aragua, meet Friday for a more substantive discussion of the case.
For now, however, the attacks have continued as Fox News hosts, Attorney General Pam Bondi and an angry chorus of Trump’s supporters online have gone after Boasberg, calling him a hack, a rogue and a terrorist sympathizer, among other things.
But while the noise surrounding him has been relentless, Boasberg has largely remained calm in court, even as the Justice Department has undertaken two separate legal efforts pushing back at him.
One is a direct challenge to his order temporarily pausing the deportation flights. The other is an attempt to avoid disclosing any detailed data about the two flights this weekend to El Salvador — information that could indicate whether they took place after the order stopping them had already been imposed.
The first attack began Monday night when Justice Department lawyers filed court papers demanding that Boasberg dissolve his order barring the deportation flights. The papers claimed that he had no authority to have issued the ruling in the first place because “the presidential actions they challenge are not subject to judicial review.”
Department lawyers have also claimed that Trump’s decision to deport the people suspected of membership in Tren de Aragua — which was recently designated as a terrorist organization — was lawful under the Alien Enemies Act. The statute, which was passed in 1798, allows the government during an invasion or a time of war to round up and summarily remove any “subjects of the hostile nation or government” who are older than 14 as “alien enemies.”
The administration has repeatedly claimed that those accused of gang membership should be considered subjects of a hostile nation because they are closely aligned with the Venezuelan government and the leadership of the country’s president, Nicolás Maduro. The White House has also insisted that the arrival to the United States of dozens of Tren de Aragua members constitutes an invasion.
But many of those claims are likely to face tough scrutiny as the case moves forward.
In a parallel move, the Justice Department has also repeatedly thrown sand in Boasberg’s efforts to determine precisely when the two flights of Venezuelan immigrants left the United States on Saturday.
In court and in court filings, department lawyers have asserted that both of the flights left before a written version of the judge’s order was formally placed on the docket at 7:25 p.m. Saturday.
But the lawyers have refused — time and again — to tell Boasberg exactly when they left. The judge issued a similar oral ruling from the bench at about 6:45 p.m. that day.
Justice Department lawyers have said that the oral ruling simply holds less weight than the written one — a position that Boasberg has greeted with a measure of skepticism.
“That’s a heck of a stretch,” he said in court Monday of the attempt to differentiate the rulings.
The Justice Department has also claimed that any detailed flight data should be kept out of the public eye because of “national security” concerns. And yet Boasberg, who once served on the Foreign Intelligence Surveillance Court, is deeply versed in handling state secrets.
On Tuesday afternoon, he finally seemed to put his foot down, ordering the Justice Department to send him a sealed filing by noon Wednesday detailing the times the planes took off, left U.S. airspace and ultimately landed.
A separate legal fight has been quietly simmering about the level of danger presented by the Venezuelan immigrants who were deported by Trump under the extraordinary powers of the Alien Enemies Act.
Lawyers for some of the men have claimed they are not members of Tren de Aragua at all, but instead were targeted by the gang while living in Venezuela. And recent court filings the government has submitted to Boasberg have provided a murky view of who these migrants might be.
In one recent filing, the Justice Department cited an immigration officer who acknowledged that several of the people suspected of being gang members did not have criminal records in the United States — largely because they had not been in the country very long.
Others appear to have been arrested while merely in proximity to Tren de Aragua members during law enforcement raids, according to the officer, Robert L. Cerna II, the acting field office director of the deportation arm of Immigration and Customs Enforcement.
Even as the administration noted what little information it had about each deportee, it made the unusual conclusion that it pointed to a risk, not a lack of one.
“The lack of specific information about each individual actually highlights the risk they pose,” Cerna wrote. “It demonstrates that they are terrorists with regard to whom we lack a complete profile.”
As the case continues to move through the courts, so too, no doubt, will the criticism of Boasberg. And the attacks are likely to take the form of online outrage rather than impeachment, given that Republicans do not appear to have sufficient votes to carry out an impeachment case.
In a statement issued Tuesday afternoon, Rep. Jamie Raskin, D-Md. and the ranking member of the House Judiciary Committee, said that only 15 federal judges had ever been impeached in American history, and only for professional misconduct like intoxication, tax evasion, bribery or perjury.
“We have never impeached a judge for the substance of his ruling in a case, much less for the substance of a correct ruling in a case,” Raskin said. “Erroneous decisions should be appealed and reversed.”
This article originally appeared in The New York Times.
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