DOJ May Invoke State Secrets Privilege In Showdown With Fed Judge Boasberg

DOJ May Invoke State Secrets Privilege In Showdown With Fed Judge Boasberg

Boasberg this week ordered the government to explain why it did not turn around flights carrying deportees to El Salvador and to argue whether the move violated his court order blocking the Alien Enemies Act deportations of those individuals last week.

By Jack Phillips | The Epoch Times

The Department of Justice (DOJ) is considering invoking its state secrets privilege in its showdown with a federal judge over the invocation of the Alien Enemies Act and deportation of illegal immigrants, a high-ranking DOJ official said in a new court filing submitted Friday.

Deputy Attorney General Todd Blanche, a former criminal defense lawyer for President Donald Trump, confirmed a statement issued by Robert Cerna, a U.S. Immigration and Customs Enforcement (ICE) official, in court papers filed earlier this week in the case that Cabinet secretaries under Trump “are currently actively considering whether to invoke the state secrets privilege.”

“I attest to the accuracy of those statements based on personal knowledge of the events described by Mr. Cerna,” Blanche wrote, “including my direct involvement in ongoing Cabinet-level discussion regarding invocation of the state-secrets privilege.”

U.S. District Judge James “Jeb” Boasberg in Washington on June 20, 2012. Diego M. Radzinschi/ALM via AP

U.S. District Judge James Boasberg told government officials that they have a Friday deadline to submit a sworn declaration by a person “with direct involvement in the Cabinet-level discussions” about the state secrets privilege and to tell the court by next Tuesday whether the government will invoke it.

Invoking the state secrets privilege—an evidentiary rule used under U.S. legal precedent—means that government lawyers can assert that court proceedings may divulge sensitive state information that may endanger national security.

Boasberg this week ordered the government to explain why it did not turn around flights carrying deportees to El Salvador and to argue whether the move violated his court order blocking the Alien Enemies Act deportations of those individuals last week.

Boasberg had directed the government to return flights with Venezuelan illegal immigrants alleged to be members of the Tren de Aragua back to the United States.

The judge, who is based in Washington, had given the government until noon Thursday to either provide more details about the flights or make a claim that it must be withheld because it would harm “state secrets.” The government resisted the judge’s request, calling it an “unnecessary judicial fishing” expedition.

In a written order, Boasberg called government officials’ latest response “woefully insufficient” and said that the Trump administration “again evaded its obligations” by merely repeating “the same general information about the flights.”

The judge ordered the government to “show cause” as to why it didn’t abide by his court order to turn around the planes, increasing the prospect that he may consider holding government officials in contempt of court.

The order issued by Boasberg has drawn sharp condemnation from Trump and some Republicans, who have said the judge should be impeached. At least one Republican lawmaker introduced articles of impeachment targeting the judge, although it’s unclear whether GOP House leaders will pursue their usage.

House Judiciary Committee Chairman Jim Jordan (R-Ohio) told news outlets that they may pursue an alternative legislative remedy other than impeachment but will hold hearings on Boasberg and other judges in the coming days.

Calls for impeachment, meanwhile, sparked a response from U.S. Supreme Court Chief Justice John Roberts, who released a statement suggesting that it’s unprecedented to impeach a judge for issuing an order that the government disagrees with.

“Impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in his statement.

While no other Supreme Court justices have publicly commented on the matter, retired Justice Stephen Breyer told CNN this week that he agrees with Roberts’s assertion and said that instead, the government should appeal the matter rather than focus on impeachment.

U.S. Attorney General Pam Bondi has said in court papers and in media appearances that she believes Boasberg is exceeding his authority by issuing a nationwide injunction blocking deportations under the Alien Enemies Act, a 1798 law that typically is invoked in times of war.

While issuing the proclamation on the Act, Trump said that his administration believes that the United States is being invaded by Tren de Aragua, a transnational gang that was declared a foreign terrorist organization last month.

The Associated Press contributed to this report. 

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SOURCE

Header featured image (edited) credit: Getty Images. Emphasis added by (TLB)

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