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The first constitutional crisis of Donald Trump’s second term is hurtling forward as the Justice Department continues to conceal information about the administration’s alleged defiance of a judicial order halting its illegal deportation policies. Over the weekend, the government flouted Judge James Boasberg’s directive to turn around airplanes carrying Venezuelan migrants en route to El Salvador. Boasberg then called a hearing on Monday to probe the disobedience—at which the DOJ stonewalled him, refusing to reveal key details about the government’s insubordination. Soon thereafter, Trump called for Boasberg’s impeachment, prompting Chief Justice John Roberts to issue a rare statement. “For more than two centuries,” he wrote, “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.”
On a Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the latest developments in this rapidly unfolding—and seemingly intentional—clash between the executive branch and the judiciary. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: We have this problem where what the Justice Department says in court at least attempts to conform itself to the idea that the Trump administration is abiding by the rules of the road. And then, outside court, we have joyful declarations from members of the administration celebrating this defiance and essentially telling Boasberg: Screw off, you’re not the boss of me. Clearly, there is a protracted argument being advanced in public by the administration that effectively holds that Trump was elected with a mandate to do whatever he wants and that nothing can curb him.
Mark Joseph Stern: It’s important to remember all this when we see the DOJ’s lawyers, who are trying to parse Boasberg’s orders and statements to find loopholes within loopholes, then argue that they weren’t technically defying him. Because their colleagues in the administration are going on TV to boast about how they defied him! It’s a weird split screen: The DOJ is advancing these legal arguments in court that are too clever by half to say it didn’t stick a middle finger in Boasberg’s face. But in public, the administration raises its middle finger high and says: “We won the election. We get to do whatever we want, and the courts have no authority to stop us.”
There’s a big “You and what army?” valence to this that’s incredibly chilling. And the other valence seems to be some theory of the unitary executive beyond what any legitimate theorist has put forward, that Trump is the embodiment of law and government in a monarchical way: He isn’t just above the law but the sole determinant of what the law is.
Yes, and I’ll note that these arguments are starting to converge on the split screen. The DOJ has now asked for the case to be reassigned to a different judge, in a way that’s really insulting and dismissive toward Boasberg. And at the same time, you have Trump calling for Boasberg’s impeachment on social media. The Justice Department’s filings sound more and more Trumpian. And Attorney General Pam Bondi is putting her name on these filings, as if to show that this is all being directed from the top. It’s not just a cadre of lower-level lawyers; it’s coming from Trump and his Cabinet.
One of the head-scratcher arguments the DOJ has raised is that a verbal order, delivered from the bench, is not really an order. So when Boasberg ordered the government to turn around the planes on Saturday, it could ignore him.
It’s hard to know what to say about this except that it’s obviously untrue. Every lawyer knows that judges issue binding orders from the bench all the time. There is no rule that a temporary restraining order issued from the bench isn’t real until it is transmogrified into a true order in writing. But even if we took that claim to be true—which it isn’t—Boasberg’s written order began with “As discussed at today’s hearing” and folded in his verbal order! So nothing that the DOJ says about this makes a lick of sense.
At Monday’s hearing, Boasberg said to the Justice Department lawyer: “You’re saying that you felt that you could disregard” his instruction to turn the planes around “because it wasn’t in the written order. That’s your first argument?” And the lawyer responded: “I’m stating what the position of the United States is.” Literally, his argument was: Pam Bondi is my boss, and this is what I’m told.
And I think that sends a message. A different Justice Department, facing a hearing over its alleged defiance of a court order, would send in a pretty high-ranking official to say: “Please, I assure you, I speak on behalf of the administration, we would never defy your order, we take all of this very seriously—there’s been an innocent mistake.” But that’s not what this DOJ did. Instead, it sent in a lower-level guy to say, on behalf of Bondi, Yeah, we don’t think what you said from the bench actually counts. It’s disdainful of Boasberg’s authority—both to send some low-ranking lawyer in to say it, and to make it abundantly clear that the message comes from the very top.
It speaks to this grand, terrifying convergence where the DOJ sounds Trumpier every day, and Trump sounds more and more as if he’s using the department to transform his lawbreaking into legal arguments. There’s this kind of creepy pincer happening now, and the vibe is less and less “I’m in a court of law trying to abide by the norms and conventions” and more “You ruled against me, so now you have to be impeached.”
We know that Chief Justice John Roberts doesn’t like it when Trump threatens to impeach judges, and sure as night follows day, the chief issued a statement that implicitly criticized Trump’s impeachment threat. Does this in any way signal to you what the court could be thinking about, should this case ever arrive before it? I’m not sure that I read all that much into the merits here.
Look, Roberts is doing the bare minimum of what we should ask of the chief justice during a full-blown constitutional crisis. And yet, even though this is fairly weak tea, it’s still better than nothing. It is very unusual for Roberts to issue a statement; he almost never does. But he wanted to make it clear that he does not approve of calls to impeach this judge. I do think this will end up factoring into his ultimate vote if the case comes up to the Supreme Court, which it probably will. It’s pretty obvious that Roberts is not always voting on just the merits or the equities. He sends a message sometimes when he defects from the conservative bloc.
I think there’s a chance the chief recognizes that if SCOTUS does not back Boasberg and instead gives a victory to Trump, then it will be vindicating Trump, along with everything he’s said about the case and the judge himself. If the Supreme Court does not hold fast here and say, at a minimum, that the president still can’t defy a court order, then it will be throwing Boasberg under the bus. John Roberts knows that. I certainly hope that Justice Amy Coney Barrett knows that. So I fear we just have to hope that the administration’s tactics here will backfire in the place that matters most, which is SCOTUS. But again, as we say so frequently, whenever we’re relying on John and Amy to do the right thing, we are in a dark place.
One big question that’s been plaguing me is: Why did the administration pick this case to tee up a constitutional crisis? Why did it choose mass deportations with no due process, habeas corpus, or judicial review? It is making an incredibly broad, imperial claim of power. And I’m just curious why you think that this is the constitutional hill Trump wants to do it on.
I think the legalistic answer is that they believe they’ll find some success on the merits. This Supreme Court is very protective of Article 2 and has already expanded presidential power specifically for Donald Trump. I think more than a few conservative justices will raise their eyebrows at the idea of a judge interfering with a president’s deportation power. I don’t think the court will go all the way with what he’s arguing, but the DOJ seems to feel it’s in fairly friendly territory.
The realpolitik answer is the optics. The administration is calling these immigrants “terrorists.” And you know what polls really well? Deporting terrorists. It doesn’t matter to Trump’s people that these immigrants are not, in fact, terrorists—that many of them were innocent, law-abiding residents who have been racially profiled. Trump is slandering them as criminals and terrorists after winning an election in part on the promise of deporting criminals and terrorists. He believes that it makes him look strong, and even stronger when he does it in the face of a court order. He’s crafting an easy story of heroes and villains: He’s the hero trying to protect Americans from evil terrorists, and this judge is the villain standing in the way of his efforts to safeguard the homeland. That’s a narrative that the members of this administration are super comfortable with. And no matter the ultimate outcome in court, they will feel as if they’ve won in the court of public opinion, even if their entire argument is based on lies, exaggeration, and slander.
