Lawfare Daily: Two Appeals Concerning Alien Enemies Act Removals in Apparent Defiance of a Court Order

[Intro]

Lee Gelernt: Chief Judge Boasberg ended his first opinion by saying the rule of law is at stake here, but let’s be clear, this is not, quote-unquote, just an academic exercise. These men suffered brutally because the executive branch just thumbed its nose at a judicial order. And so there’s a lot riding on this en banc hearing on September 29th.

Roger Parloff: It’s the Lawfare Podcast. I’m Roger Parloff, senior editor at Lawfare, and I’m with Lee Gelernt, the ACLU’s chief litigator for Alien Enemies Act cases.

Lee Gelernt: They’re trying to have it both ways. They’re trying to set up, well, the secretary didn’t do anything wrong. She just followed legal advice, and the lawyers gave confidential advice, so that’s off the table. You know, so the whole thing is just sort of wrapped up in obfuscation.

Roger Parloff: Today we’re talking about two arguments Lee is about to make in the D.C. Circuit, including an en banc case over whether Judge Boasberg can hold a hearing on possible contempt charges against now Attorney General Todd Blanche and now U.S. Appeals Court Judge Emil Bove.

[Main Podcast]

So Lee, you have two D.C. Circuit cases coming up in the space of five days. They arise from the same case. There’s one September 25th and one September 29th, which is actually en banc, the whole panel. We’re gonna do both, but discuss both, but I’m gonna focus on the en banc case because in my humble opinion, it involves the biggest legal scandal of the Trump administration.

This is the one involving the specter of possible criminal contempt charges against the now sitting Attorney General Todd Blanche, and a now sitting appellate judge, Emil Bove. Can you explain for the listeners the gist of that case?

Lee Gelernt: Yeah, sure. So, what happened, you have to go back to March 15th, 2025. We heard through media and through immigration attorneys that Venezuelan men were being alleged as gang members of a Venezuelan gang, Tren de Aragua, and being moved from all over the country to Texas.

We had been hearing rumors that the administration might use the Alien Enemies Act against this gang. Then the media started reporting that they thought it was going to happen that weekend of March fourteenth, fifteenth, sixteenth, 2025. We then got calls from immigration lawyers saying our clients are in Southern Texas now, and multiple lawyers had called us with clients who had been moved from all over the country.

At the same time, the media was reporting that they had reason to believe the administration might secretly invoke the Alien Enemies Act. We stayed up all night for two nights and filed what’s called a TRO, a temporary , seeking a temporary restraining order saying, do not transfer these men. At that point, we had heard they might go to El Salvador to a notorious prison called the CECOT prison in El Salvador.

We stayed up all night and at one in the morning filed this motion for a temporary restraining order. So that’s one in the morning, Friday night, the fourteenth, Saturday morning, the fifteenth. And we have filed it on behalf of five Venezuelan men as the named plaintiffs on behalf of a proposed class of all the Venezuelan men who might be removed under the Alien Enemies Act.

And just let me just pause there because I know the Alien Enemies Act is not something that everyone knows. I— Prior to this Trump administration, it’s not something I had ever really looked into. I think people now have some understanding since this has been ongoing litigation for sixteen months. But the Alien Enemies Act was passed in 1798.

It was intended to be a wartime authority that could be used when there was a declared war or a military invasion. It’s an extraordinary power given to the president to declare nationals of another country enemy aliens, and basically take their property, detain them, remove them. Given that it’s only supposed to be used against military invasions, it’s not surprisingly been only used three times in the country’s history.

The War of 1812 when the British invaded, World War I, and World War II, both obviously declared wars. So we filed this saying we have reason to believe the Trump administration is gonna try and use it against these men. The next morning, we get a call from the law clerks for Chief Judge Boasberg saying, “He has been given your case. He’s gonna issue a temporary restraining order for the five named plaintiffs and wants to hold a hearing on Monday for the remaining class members.”

We urged the district court to hold a hearing over the weekend because we had reason to believe the men were already being dressed for removal and would be removed under the Alien Enemies Act that day, Saturday the 15th.

At this point, the government still had not made public any proclamation u-invoking the Alien Enemies Act. We subsequently learned that they had done it in secret and didn’t make it public till later that afternoon on the 15th. The district court said, well, is there a proclamation?” And we said, we think there is. It just hasn’t been made public, and we think Monday will be too late. Our class will be in a notorious Salvadoran prison by then.

The government unbelievably told Chief Judge Boasberg, a weekend hearing is premature. Your original idea of holding a Monday hearing is fine. The government subs- That same lawyer who told the district court that subsequently admitted that he knew the planes were gonna go that weekend.

So, in effect, affirmatively misleading the district court into thinking Monday would be fine, knowing full well that by Monday it would be too late. The judge said, well, in light of what the plaintiff’s lawyers are saying and Mr. Gelernt is saying, I think we better hold a hearing, an emergency hearing by Zoom Saturday night.

And so, there was a hearing on Saturday night at 5:00 PM. The district court’s first question to the government lawyer was, so, I now see there’s a proclamation which had finally been put on the White House website at an hour before the hearing, an hour and roughly 18 minutes before the hearing.

The district court said, are there planes that are going with these men? And when I say imminently, I mean in the next twenty-four to forty-eight hours. The government lawyer said, I don’t know. The judge was incredulous. So, they have sent you, you’re a high-level DOJ political appointee. They have sent you to this hearing without any information about the very thing we were gonna talk about. This hearing has been highly publicized. Surely you knew you should come with that basic information.

The government lawyer said, I don’t know, but I can try and find out. The district court said, Well, let’s take a recess, come back at six o’clock, and you tell me what you’ve learned. The lawyer came back and said, I still can’t give you any information, for waffling between whether it was classified or he just didn’t have the information.

The district court said, well, let’s then go into a public— take the public off the line, because at this point, the public was on the line and the media, you tell me in camera. He said, I still don’t have any information for you. I am urging the district court to act as quickly as possible, saying we believe the planes are already in the air, and one may take off imminently.

Little did we know that later we would find out that the planes were unbelievably sent in the beginning of the hearing and during the recess, even though that was exactly what the government was trying to find out. So, someone made the decision, we still don’t know who, to actually send the planes during the hearing.

The lawyer said, I still don’t have any information from you. The judge said, well, in light of what Mr. Gelernt is saying, I think I better issue a temporary restraining order. And just to be clear to the government, this is supposed to be immediately complied with, and I don’t want any confusion. If the planes are already in the air, turn them around. If they’ve landed in El Salvador, do not let these men get off the plane and be transferred to El Salvador.

His focus was on, A, preventing irreparable harm to the men, but more importantly, stressing that I could lose jurisdiction and authority if the men are turned over to a foreign sovereign. So, I don’t want them turned over to a foreign sovereign.

Is that clear to the government lawyer? “Yes, Your Honor, it’s clear.” We subsequently learned that the attorneys on the case sent multiple emails to the agencies and to higher-ups at DOJ saying we’re gonna be in contempt if we turn the men over to El Salvador. He says, then I will issue a written order so that it’s all memorialized.

Thirty-three minutes later, he issued a written order saying, “As discussed at the hearing, the men are not to be removed, and this is the class definition, and we will have immediate further briefing and an argument.” The government lawyers then, after the written order, continue saying, do not allow these men to be transferred to El Salvador. We risk contempt.

We don’t hear anything. The court doesn’t hear anything all night. The next morning, El Salvador releases a video, a harrowing video of the men being taken off the plane in shackles, armed guards from El Salvador, soldiers with guns, making them kneel, shaving their heads. El Salvador releases that video early in the morning.

It’s at this point, Sunday the 16th, that the men had been transferred around midnight, and our Secretary of State and our president reposted the videos. At this point, we have not heard from the government officially, nor has the district court. Finally, that afternoon, they tell the district court, we understood the order to mean that it only applied when the planes were in U.S. territorial airspace. Because the orders came after they had already cleared U.S. territorial airspace, we thought we were free to hand the men over to El Salvador.

That started what’s now turned into an en banc hearing sixteen months later, with the government repeatedly trying-. Because Judge Boasberg said, I think the government willfully violated my order. That’s a completely contrived interpretation of my order. They didn’t come back to clarify. They had five hours when they held the planes up in Honduras. They never came back to clarify the order. They couldn’t possibly have understood me to be concerned with whether the planes were in U.S. territorial space or not, because that— I would not have been divested of custody just because they were in s- other sovereign’s airspace, given that they were on a U.S. plane and U.S. retained custody.

He said, I wanna try and get to the bottom of this. The government stalled it out, went up to the D.C. Circuit, it came back to him. This all led to finally the case being heard en banc, and the question is: Can he continue with these criminal contempt proceedings? The government is saying, we’ll tell you that Secretary, former Secretary Noem was the person who made the decision. We won’t contest that she did it willfully for current purposes. If you wanna refer her for prosecution, refer her to us.

Obviously, that’s going nowhere. But no— the investigation has to stop as to anybody else about whether any DOJ lawyers lied to you, about whether— why they kept this all secret, why they sent the planes during recess.

It all needs to be shut down and very bluntly told the full court of appeals, the active judges, eleven of them, who are gonna hear this argument, not that they would consider going to the Supreme Court if the Court of Appeals allows the investigation to go forward, but within 14 days, they will go to the Supreme Court if the investigation goes any further.

I mean, our brief lays out the full facts. This is a conspiracy from beginning to the end, from the top to the bottom. And one other remarkable fact that’s come out in a whistleblower disclosure is that now Third Circuit Judge Bove, who was a high-ranking DOJ employee, apparently told a group of DOJ lawyers the day before on the 14th, “The planes m- are going this weekend no matter what, and we may have to say fuck you to the courts if,” and those are from the exact words from the whistleblower, “if the courts try and stop us.”

So, this was a premeditated decision that we are gonna send these planes. President Trump has already told DOJ, you’re gonna be reading about something big Saturday. The planes are going, and we’re not letting the court stop. They tried to keep the hearing from happening on the weekend. Once the hearing happened, they sent the planes anyway. And then when the judge issued the order, even though the attorneys on the case who were at the hearing told their higher-ups and the agency repeatedly, we may not transfer the men, the higher-ups didn’t bring those line attorneys into the discussion, never went back to the district court for clarification, and just said, just transfer them, and then didn’t even tell the district court till Sunday afternoon, this was our interpretation, therefore, we did it.

You know, I know we’re gonna talk about this, but Chief Judge Boasberg was the first really to put his foot down in the beginning of the second administration that the executive branch cannot violate court orders and the judiciary must stick up for itself. He has taken enormous heat for this, with the president calling for his impeachment.

I anticipate that— I mean, I assume that he’s gotten enormous threats. His daughter’s picture was put in the New York Post saying she works for an NGO. You know, and I know now that there have been other judges who have gotten threats. If the Court of Appeals does not stand up for this district court, this is the most acute instance of the administration violating an order with the most severe consequences, and we’ll talk about this later, I assume, Roger.

The men spent four months in this prison, just abused every single day and tortured. We now know that because there was a prisoner swap where they were sent to Venezuela. And Chief Judge Boasberg ended his first opinion by saying, the rule of law is at stake here. But let’s be clear, this is not, quote-unquote, just an ‘academic exercise.’ These men suffered brutally because the executive branch just thumbed its nose at a judicial order. And so, there’s a lot riding on this en banc hearing on September 29th.

Roger Parloff: That was a terrific summary. Let me just emphasize a couple things. The background of this, I don’t think it’s really contested that this whole thing was a race against the court.

This is not the crux of the criminal contempt proceeding, but I don’t think it’s disputable that everyone knew the use of the proclamation was dubious, that the giving them no due process whatsoever was impossible. And in fact, we know that the Supreme Court later said nine to nothing on that point, that was wrong.

And you see this activity on March 14th that you described, where Trump says something’s gonna happen tomorrow with these people, you’ll be proud of me, or something like that. You’ll be impressed. And of course, that meeting that you discussed, which is not really... You know, it’s sort of the, the fuck you meeting with Judge Bo- now Judge Bove, which is— They have deflected.

Bove says he doesn’t recall if he said those words. But the whole thing is... I mean, that much there’s no dispute about, that this was about getting them out of the country before a judge could rule whether it was lawful what they were doing.

Lee Gelernt: Yeah. And I, and if I could just interrupt, I’m sorry, ‘cause I think you’re making a really important point about race against the courts.

Because ultimately, Chief Judge Boasberg can look at civil c- inherent sort of civil sanctions as well. What is clear is that there are cases talking about even if there’s not yet an order, that can be the basis for civil contempt for exactly the reason you’re pointing out, Roger, which is that you can’t take race against the courts and tr- take away the subject matter of the hearing so that it makes it impossible to provide relief.

And there’s cases stretching back to the 1960s that talk about that, where someone, the lawyers or the client tries to remove something that, so then the court cannot get at it once they hold a hearing, and it can be in a variety of circumstances. Sometimes it’s moving money. And so, this situation was the g- government was gonna try and get these men into Salvadoran prisons so that no matter what the court ordered, ultimately it wouldn’t matter.

So, we will be pursuing that theory as well. But you’re absolutely right. This was a race against the courts. Everything was done in secret that Friday, and we later learned that then Attorney General Bondi had sent a memorandum to DOJ saying these men are not entitled to any hearing, any review. They can be removed immediately.

The government initially took that position, but ultimately had to back away in the Supreme Court. And as you said, the Supreme Court was emphatic in two different opinions that we can talk about how the government tried to get around the first opinion about due process. And I think we will when we talk about the September 25th case involving the men.

But you’re absolutely right to point out the race against the courts is itself can be potentially con- a contemptuous violation.

Roger Parloff: You mentioned it, but I just want to underscore it. This proclamation doesn’t become public until one hour before the hearing and the presidential proclamation, and 82 minutes before the first flight leaves, we now know.

You know, and the law is that it has no effect until it becomes... They had no choice but to make it public. It sh- But the facts on the, the race against the court aspect of it are just overwhelming. The, the other thing I wanted to just give the reader some examples that are in your brief of what Reuveni was saying to the higher-ups as after the hearing ended. Reuveni is listening on a public line.

Lee Gelernt: And he’s one of the attorneys in on the case.

Roger Parloff: Yes, Erez Reuveni. At the time, he... I’m sorry, he was the, I think, deputy director of the Office of Immigration Litigation. He later becomes a whistleblower. He’s listening, and he is on a thread, an email thread with 23 officials from State Department, from DOJ, from DHS, and from ICE.

And at 6:48, he writes, PM, “The judge specifically ordered us to not remove anyone in the class and to return anyone in the air.” And then somebody responds and says, “Well, two flights departed already,” an ICE person, “And, but we’re taking people off the third flight that hasn’t left.” And he asks, “Well, what about the ones that are in the air?”

And he gets no answer. And then he repeats, “No one’s subject to the AEA, the Alien Enemies Act, in our custody can be removed. Anyone in the air should be returned unless they have a— they’re removable under some other statutory provision.” And then at 7:18, “Again, please confirm ASAP. No one lacking a, a final order of removal will be taken off these planes when they land. We need to address this ASAP to avoid contempt.”

No response. They just freeze him out. And then one other thing before I... You mentioned that Secretary of State Rubio and Trump retweet Bukele’s post, the, the dictator of El Salvador, when he shows that he has the prisoners. And Marco Rubio adds, “Oopsie.” He writes, “Oopsie,” meaning to make fun of the courts.

Lee Gelernt: Right. I think, as I understood it, that President Bukele of El Salvador had written that and s- the secretary reposted that, but, you know, same difference. It’s that-

Roger Parloff: Oh, okay. I’m sorry.

Lee Gelernt: But same difference. You know, the point is just whether the secretary wrote it or simply reposted it.

Roger Parloff: Okay.

Lee Gelernt: It’s piling on humiliation on the district court by the Secretary of State of the United States.

Roger Parloff: Before I get to the legal arguments, I just want to say one other thing. Boasberg ruled in your favor, so the government files the first brief here. It’s a mandamus. They’re saying that Boasberg is acting unlawfully, and obviously unlawfully, because that’s a very high standard for mandamus. And, it’s such a sanitized version of the facts that reading it, I become emotional, you know?

And I just have to admire lawyers. Y- your brief responding is so, given that fact, it’s, it stays, it’s forceful, but you collect your thoughts and organize them, and it’s methodical, and I don’t think I could do it. You know, I just get so emotional. I don’t know. Do you have any comment there?

Lee Gelernt: Well, I, you know, I, well, I appreciate you saying that about our brief. You obviously have seen a lot of briefs in your time. Yeah, I mean, it is emotional. I mean, for one thing, those were our clients who ended up in that brutal prison, you know? And so, but yeah, I mean, I, I think as a lawyer for the past 30 years, I’ve never seen anything like this, you know?

And I’ve been litigating against the federal government almost exclusively in my career, and now for more than 30 years, and this is a remarkable situation. I... You know, 204 former federal and state judges of both, you know, appointed by both parties have signed the brief, signed an amicus brief saying the rule of law is at stake.

Several members of the D.C. Circuit have already written in this case saying this is a grave threat. And, you know, in addition, former DOJ officials of both parties have filed a brief saying, this is not the way the Department of Justice has acted in the past under either party, and this is out of bounds of zealous advocacy. This is something way different.

Yeah, it’s tough. I mean, you know, and Chief Judge Boasberg has been unbelievably patient. They asked him, the D.C. Circuit, to throw him off the case. The president sought to impeach him. You know, everything. And you’re right. It is tough. We’re gonna see, you know, what the en banc arguments are like. I anticipate that it could get very explosive. And you have the government out there threatening, saying, well, we’ll just go to the Supreme Court within two weeks if you d- let this go on.

And, you know, the other thing I would say is, and I think you sort of touched on this, Rogers, the government has tried to sort of gaslight everyone and say- Chief Judge Boasberg is doing something so unusual you need to put an end to it, because you wouldn’t normally have a court looking into having this kind of inquiry into high-level officials.

But the reason he’s doing it is not because he just woke up one morning and said, let me inquire into people. They did something unprecedented, so of course it requires a somewhat unprecedented response. You know, they can’t do this out- thing that’s so outrageous and then say, how dare the judiciary try and stick up for itself?

So I am hopeful that the D.C. Circuit says, look, this is not a partisan issue. If we’re gonna con- continue to have the rule of law in this country and a judiciary that protects itself, we need to stand up for Chief Judge Boasberg and orders of a federal court. And I think, you know, no less and no more is at stake than basic rule of law concepts here.

Roger Parloff: So, now I’m going to finally get to some of the legal issues. I can’t say with certainty w- what the government considers the, their strongest points, but one of their key points is alleged ambiguity in Judge Boasberg’s order. And their theory goes like this, that, yeah, maybe the oral order was clear. He says, you know, words to the effect of ‘turn around the planes. You need to get, make sure they don’t disembark.’

But he also says, I’ll put this in a written order so you don’t have to take notes. And then a half hour later he says, “As we discussed in today’s meeting,” and then he issues the order that the class members are not to be removed. But he doesn’t define removed in the written order.

And so, the argument becomes, well, maybe by removed, even though no one discussed this at the hearing, maybe all they meant was removed outside the territorial United States, not turned over into the custody of someone where he would lose jurisdiction. And of course, within five minutes after leaving the airport in probably Harlingen, Texas, they were outside the territorial U.S. So, we complied. That’s the ambiguity. Address that.

Lee Gelernt: Right. So, for one thing, you’re right, that was the basis for the panel decision. Judge- Judges Rao and Walker said there was too much ambiguity, and therefore, criminal contempt can’t lie as a matter of law, so this whole thing needs to be shut down. You know, I would just make a few points about that.

One is, just initially, even if that were true, and it’s certainly not, the district court still may look at whether lawyers directly lied to him and all that. That’s outside the bounds of even whether the order was violated. But as to your point, right, the government is saying, well, the district court at the hearing said you don’t have to race to write all this down. I’ll memorialize it in an order.

The government says that Judge Walker said, well, look, that meant that the whole oral order is gone. That’s wrong for a number of reasons. First of all, when he said, you don’t have to race to write this down, he was talking about the details of when the briefs would be subsequently due and also what the class definition would be because he changed the class definition.

But even aside from that, he made clear that the government had to understand the oral order, the basics of it, because he was saying immediately comply, as Judge Walker acknowledges. And the government did, of course, understand it, and Mr. Reuveni memorialized it in constant emails, as you said, to that chain of 23 people.

And so, there’s no question the government understood that they weren’t simply able to put aside everything in the oral order. But then, more importantly, Chief Judge Boasberg’s written order specifically linked the written order to the oral order because he started, as you mentioned, the written order by saying, as discussed at the hearing.

So, he was specifically telling them these two things are linked. The government is saying, well, the written order only says removed, and that can have different meanings. Well, they didn’t— They could have clarified it. Of course, the reason they didn’t is because they knew exactly what the district court would say: Of course, I didn’t mean territorial. I meant don’t hand the men over. My whole focus is not losing custody, and I wouldn’t lose custody whether they were 10 miles inside the United States or 10 miles outside.

This is what you would have to believe if you take the government’s position, that at the oral hearing, the district court’s sole focus was on not losing jurisdiction. Then 33 minutes later, when he issued the written order, he had completely abandoned that focus and s— thought: I don’t care any longer whether the men are turned over if the planes are outside of territory airspace. So, I’m completely reversing my concerns, and I am not gonna tell anybody that I’ve reversed my concerns. We’re gonna reverse the order completely. I’m not gonna tell the parties, the government. I’m not gonna tell them, ‘If you’ve turned around the planes, you can re-turn them around.’ I’m not gonna tell them if they’re sitting on the tarmac, ‘You can now release the men.’ And I’m just gonna adopt this and have a new order and not tell anybody that I have changed completely, all in 33 minutes.

That is completely far-fetched. You know, and as Judge Pillard said in one of the dissents the first time it was up before the D.C. Circuit, this is just a manufactured post hoc contrived interpretation. You know, and notably, even though that was the basis for the panel decision that’s ult- ultimately now en banc, the government’s brief doesn’t get to it, to page four— opening brief till page 43.

And so, I think there’s some element of the government feeling like, well, you know, we’ll make, continue to make that even though a number of judges have said that’s completely contrived. So, their primary argument now seems to be he has enough information to make criminal referrals because we’ve said Secretary Noem was the one who made the decision, and for current purposes, we won’t conc- we’ll concede that she did so willfully.

So, they fe- spend the first 43 pages talking about, okay. Well, maybe even if the order was clear, it’s time for him to get it off his plate and refer it to us. And Judge Katsas, in the first panel opinion, said the quiet part out loud, everyone knows the DOJ won’t investigate this. And so basically, they’re saying, the only person you can send to us is Secretary Noem. After that, drop the investigation, and we’ll take over as the Secretary Noem now, and that’s the end of it.

It’s as if the U.S. attorney was looking at a corporation, and the corporation said, here. Here’s a vice president. We’re telling you he did everything and nobody else did anything. Take it or leave it.

A U.S. attorney would never, you know, accept that.

Roger Parloff: And I’ll get back to that argument. I— Before we abandon ambiguity, I just wanna stress the most peculiar aspect of it. And again, correct me if I’m wrong, but I don’t think anyone is arguing that anyone at DOJ or at DHS had any genuine subjective confusion about what Boasberg wanted.

It’s this gotcha thing where they think he made a mistake that they can capitalize on or exploit, but, when he moved from the oral to the written. And just to make one final point. It, of course, in the written order, he says, “As we discussed at today’s meeting.” And when the government in their brief block quotes the order, they excise that.

Lee Gelernt: Right.

Roger Parloff: They excise that sentence.

Lee Gelernt: Yeah, I don’t think I’ve ever seen-

Roger Parloff: How can you do that? ...

Lee Gelernt: anything like that from DOJ at this level-

Roger Parloff: Yeah ...

Lee Gelernt: in the past 30 years. I mean, that was a remarkable admission, right? It do- it’s not as if that was buried somewhere. It started the minute order, and the minute order was only a few sentences. So, someone made a deliberate decision to leave that off.

Roger Parloff: So, I think you’re right that their key arguments are what they-

Lee Gelernt: Well, I just wanna ...

Roger Parloff: Yeah. Yeah.

Lee Gelernt: Before you get to that, I just wanna put some emphasis on the point you just made, which is, I think, absolutely critical, is that they have never said anybody at DOJ didn’t fully understand it.

We know now that the lawyers who were actually listening to the hearing and arguing it knew full well what both the oral and written order meant because Mr. Reuveni and his whistleblower disclosure has now revealed those emails, and the government has conspicuously avoided coming in under oath and saying anybody at DHS or DOJ didn’t understand the order.

I mean, we know they had to because it’s so implausible what they came up with. They’re doing exactly what you said, saying, well, it has to be so clear, there can’t be a gotcha. But this is not blindsiding them. They knew exactly what they were doing. And the D.C. Circuit has been emphatic about the point that it has to be a reasonable interpretation reached in good faith.

And in— it’s a s- objective standard, but the D.C. Circuit has also made clear that if the individuals, especially if they’re sophisticated, understood the order, that bears very much on the objective reasonableness of the order. You know, and of course, they haven’t come in and said, we didn’t understand the order to be this.

There’s no way they could have. They understood full well what they were doing, but the president had promised this the day before, apparently. Now Judge Bove had told them, we’re gonna say fuck you. And so, you know, that’s how it all went down.

Roger Parloff: We’re getting toward the end of our time. I do wanna— I’ll ask one other thing about this case. A- and for the listener, Boasberg asked for declarations from the people involved in the decision.

Lee Gelernt: Right.

Roger Parloff: And Kristi Noem said it was me, which is f- sort of incredible on its face. And then based on a conversation with privileged information from Joseph Mazzara, who was the acting general counsel, and that he had conversations with high-level DOJ people.

And then Blanche and Bove said they gave their legal advice to Mazzara. And they say, well, Judge Boasberg wants to now have a hearing where Drew Ensign, and Erez Reuveni would testify. Two of the lawyer inv— there at the hearing that day, and Reuveni, who the deputy director of the immigration group.

And they say, well, there’s nothing relevant that they have to offer. What do you say to that?

Lee Gelernt: Yeah. So, I mean, the first thing is, right, the government is saying, well, they didn’t directly talk to the secretary or even the high-level people. I don’t think the government should wear that as a badge of honor that they kept the lawyers who actually were on the case completely isolated.

I mean, they did that for a reason because they knew very well that those lawyers would push back and say what you’re— how you’re interpreting the order is completely implausible. We’re gonna be held in contempt. They can testify to a number of things.

First of all, he’s not just looking at what the secretary did. He’s looking at the whole situation of the race against the court, who lied to him, so they can certainly testify to that. But the other thing is, even as to the order, right? I mean, the fact that they isolated them means that Judge Boasberg is gonna have to figure out what happened and why they were isolated.

So, they’re gonna be able to testify to what did Bove say the day before, ‘cause that bears directly on whether this was a premeditated decision. You know, were— did they ask to be involved in the discussions? Why were they isolated? So, it— I, I think it all bears on it. I mean, the fact that they kept them isolated...

You know, and they’re complaining, well, they don’t have the direct information. Well, let them send former Secretary Noem. Let them send Blanche or Bove or Mazzara. You know, let them send the person who made the decision to send the planes during the recess. You know, they’ve left the, the judge no choice. I mean, and the judge said, look, I want affidavits from all those involved in the decision.

They cherry-picked who they were gonna put the affidavits in, and remarkably, the affidavits were two sentences each. That’s how much information they gave. And so, you know, they’ve talked about legal advice. They’re trying to have it both ways. They’re trying to set up, well, the secretary didn’t do anything wrong. She just followed legal advice, and the lawyers gave confidential advice, so that’s off the table. You know, so the whole thing is just sort of wrapped up in obfuscation.

Roger Parloff: Yeah. Even the Reuveni whistleblower letter, which, you know, is sh- shocking and says a lot, he’s actually very careful, and he feels that there are a lot of privileges he can’t violate there.

There’s a tremendous amount he hasn’t said-

Lee Gelernt: Right.

Roger Parloff: that sort of bears on mens rea here w- what he intended.

Lee Gelernt: Yeah, and we hope that other career lawyers finally step up and say, this is not what we signed up for. I mean, Reuveni, just to be clear, has been in five administrations, including vigorously defending policies during Trump one.

I mean, I had many arguments against him during Trump one. And so, I hope others at DOJ come forward and say, this is how it all went down.

Roger Parloff: And then we have almost no time left. Can you just, as fast as you can explain what the other case, the September-

Lee Gelernt: Right ...

Roger Parloff: twenty-fifth case is about?

Lee Gelernt: Right. So that is— stems from the same incidents that weekend.

The men who were sent to the CECOT prison are now, what we filed on behalf of them an amended complaint and said to Judge Boasberg, These men are entitled to hearings, not just because using the Alien Enemies Act during peacetime is unlawful, but they deny that they’re even gang members and fell within the order, even if the order was otherwise legal.

They never got a hearing. The government now concedes that under the Supreme Court’s decisions in J.G.G. and A.A.R.P., they didn’t get due process, and so the government concedes that there was a constitutional violation. But without a trace of irony, says, well, Chief Judge Boasberg can’t do anything now because they’re out of the country, never acknowledging that they’re out of the country ‘cause they violated his order.

This is the very thing he was worried about, is that they would come in and say, well, it’s too late now. They’re out of the country, at the, at that hearing, the emergency hearing. So, he said, No, I have jurisdiction to do something, and they either get remote hearings or be brought back. You can detain them when they’re brought back, but one way or the other, they have to be given hearings since you concede their due process rights were violated.

The government, of course, appealed that, said, we won’t give them hearings. You have no authority or jurisdiction to order this. So that case obviously is intertwined with the en banc. That will be argued separately by me on September twenty-fifth before a D.C. Circuit panel, and that involves our client’s right to basic process.

You know, as a lot of people said across the board, from Joe Rogan to, you know, others, if there’s no hearing and anybody can be sent to this notorious prison and held incommunicado , that means literally anybody can be picked up, a citizen, anybody, if there’s no way to, for them to contest it. They got zero time.

They were just thrown on the planes with no opportunity to say, look, I’m not even a gang member. What are you doing? And we know now it was flimsy evidence to suggest... that the government used to say each one of them were gang members, tattoos of the Chicago Bulls you know, things like that. And so that’s what’s at stake there is, you know, and I think Judge Wilkinson from the Fourth Circuit in the Abrego-Garcia case, you know, a comparable case, said, the federal courts can— this is untenable. This would be a loophole that the government could exploit all the time, is rush people out of the country, put them in a foreign prison, and then w-wipe their hands of it. The courts cannot allow this. There has to be an ability to correct this.

And so we hope that the D.C. Circuit will say, absolutely, they’re entitled to a hearing. And s-so that, you know, and they’re obviously intertwined, the two cases.

Roger Parloff: I think we’re gonna really have to leave it there, both fascinating cases. Thank you so much for coming today, and really appreciate your time.

Lee Gelernt: Thanks for having me.

[Outro]

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