Trump Administration Says It’s Considering State-Secrets Privilege To Shield El Salvador Flight Details From Judge

 

Judge James E. Boasberg, chief judge of the Federal District Court in DC, stands for a portrait at E. Barrett Prettyman Federal Courthouse in Washington, DC on March 16, 2023

The Justice Department confirmed to U.S. District Judge James Boasberg Friday there are “ongoing Cabinet-level discussions” to decide whether to invoke the state-secrets privilege to avoid answering Boasberg’s questions about immigration flights he suspects may have violated a court order—the latest move by the Trump administration to block Boasberg from obtaining more information about the flights.

Key Facts

Justice Department lawyer Todd Blanche submitted a sworn statement Friday confirming a declaration from ICE official Robert Cerna informing the court of the “state secrets” discussions.

Blanche’s statement comes after Boasberg on Thursday called Cerna’s statement a “woefully insufficient” explanation for failing to comply with his request for more information about the flights and demanded “an official with direct involvement . . . swear that deliberations of the privilege’s invocation are ongoing at the level Cerna suggests.”

The Trump administration has repeatedly sought to delay answering Boasberg’s questions about flights that deported migrants to El Salvador over the weekend and whether they were done in violation of his order temporarily blocking Trump from using the Alien Enemies Act of 1798 to deport some migrants without court hearings.

What To Watch For

Boasberg gave the Trump administration a Tuesday deadline to decide if it is invoking the state-secrets privilege that would allow it to withhold information that could compromise national security. It must also say why it believes it did not violate his order.

Key Background

Trump on Saturday invoked the wartime authority that allows the government to deport some undocumented migrants without court hearings, with the order specifically targeting migrants the Trump administration has said are members of the Venezuelan gang Tren de Aragua. Boasberg subsequently blocked the order from taking effect for 14 days and issued a verbal order Saturday night directing the Trump administration to turn around any flights currently in progress that were carrying migrants deported under the Alien Enemies Act. Secretary of State Marco Rubio revealed Sunday that more than 250 suspected Tren de Aragua members had been deported to El Salvador the previous night, prompting Boasberg to investigate whether the flights violated his order and sparking a heated back-and-forth with the Trump administration as it has repeatedly sought to avoid answering his questions about when, exactly, the flights departed U.S. soil. The Trump administration has claimed the flights were already out of U.S. airspace when his written order was issued and has argued it should not have to answer his questions, because an appeals court could soon overturn his ruling.

Tangent

Trump has repeatedly attacked Boasberg, calling for his impeachment this week and writing Friday on Truth Social “no District Court Judge, or any Judge, can assume the duties of the President of the United States,” the latest statement from Trump and his allies challenging the judiciary’s authority over the executive branch.