Trump DOJ tells the courts: “You Can’t Make Me”
We are just starting the 10th week of this presidency, and the DOJ has told the courts to fuck off. You can’t make me. You’re not the boss of me. We aren’t gong to follow your directive because we say we don’t have to.
The article below from TPM kind of stops abruptly, and doesn’t say anything about what the response of court might be, or even what options the court has.
I would love to hear from our attorneys and from anyone else who has links to what next steps might be. In the meantime, here’s what we know now.
The Trump administration took the extraordinary step of invoking the state secrets privilege rather than answer a federal judge’s questions about whether it violated his order blocking deportations under the Alien Enemies Act.
“The Executive Branch hereby notifies the Court that no further information will be provided in response to the Court’s March 18, 2025 Minute Order based on the state secrets privilege,” the administration asserted in a bumptious filing over the names of top DOJ officials.
Although it is a weak and probably not viable privilege claim, the state secrets invocation escalates President Trump’s series of attacks on the judicial branch and its independent sources of power under the Constitution. It did so with unusually sharp language that showcased a sneering contempt for the judiciary in refusing to even provide the allegedly privileged information to a judge for his review.
“The Court has all of the facts it needs” the administration argued as it objected to “[f]urther intrusions on the Executive Branch.” It asserted that it would no longer entertain “further demands for details that have no place in this matter.” It contended that the court “owes President Trump ‘high respect’ … but to this point has not” given it to him. The administration repeatedly stated that “there is no need for the requested disclosures” without engaging in actual argument.
Judge Boasberg, a former FISA court judge with deep experience in national security law, had already expressed skepticism in open court about the applicability of the state secrets privilege in this case. But the Trump DOJ forged ahead with a distinctly derisive tone:
“The information sought by the Court is irrelevant to plaintiffs’ claims and to the Executive Branch’s compliance with the Court’s operative order. The Court has already devoted more time to these inquiries than it did to evidence and argument on the issue of whether a class should be certified.”
At issue is whether the Trump administration complied with Boasberg’s order to stop deportations under the Alien Enemies Act, including flights of Venezuelan nationals alleged to be members of the Tren de Aragua gang from Texas to a prison in El Salvador. For more than a week, the Justice Department has dodged Boasberg’s demands for more information on the timing of the flights as he seeks to determine whether his order was violated.
“The need for additional information here is not merely ‘dubious,’ or ‘trivial,’ it is non-existent. The Executive Branch violated no valid order through its actions, and the Court has all it needs to evaluate compliance. Accordingly, the Court’s factual inquiry should end,” the Justice Department concluded.
The invocation of the state secrets privilege came at the end of a long day in the case that began with Boasberg issuing an opinion detailing the legal basis for his temporary restraining order barring the Alien Enemies Act deportations and included feisty oral arguments on the TRO before the DC Circuit Court of Appeals.
I am not a lawyer, but it sure feels to me that if this response from the DOJ flies with this court, it’s game over for the courts. Am I wrong about that?
Open thread.
Mr. Bemused Senior
“When the facts and the law are against you, pound the table.”
We knew this was coming, they have been telegraphing it since before the inauguration.
J. Cheever Loophole was a better lawyer than this lot.
Parfigliano
Every branch of govt and person better start planning for the certainty that if alive he is not voluntarily leaving office 1/20/29.
WaterGirl
PSA: Talking Points Memo membership is 25% off until (or maybe thru?) March 31.
Steve LaBonne
The judge is a former FISA court judge intimately familiar with national security law. He knows very well that DOJ’s arguments are complete bullshit. He must demand that the supporting information be delivered to him immediately for him to review, and put those assholes in jail (Federal marshals are supposed to be working for the courts) if they don’t come across. Otherwise it’s game over. Time to person up, Judge.
laura
It contended that the court “owes President Trump ‘high respect’ … but to this point has not” given it to him.
The Shite-bag who would be king.
Steve LaBonne
@laura: That sentence alone is contempt of court worthy.
Spanky
@Steve LaBonne: Well that’s the thing, innit? Charging, indicting, bringing to trial, those are all DOJ functions, are they not? And the DOJ is the one telling the judge to fuck off.
bjacques
Trump may as well add the Supreme Court building to his federal property yard sale as well.
Chief Justice Roberts is now Citoyen Roberts. Hope you enjoyed it while it lasted, Bob.
Steve LaBonne
@Spanky: Contempt of court does not require an indictment, and the Marshals, while technically part of the Executive Branch, are tasked with protecting judges and executing court orders. If they are going to disobey judges, the time to find out about that is now.
Old School
Steve LaBonne
@Old School: We’re an empire now. The Emperor’s word is law.
WaterGirl
@Steve LaBonne:
Yes. Because that’s the giant fork in the road. At that point, all the rules, strategies and tactics change.
Jay
Judge Boesburg ruled that the ban still held and the DOJ has until Friday to provide him with the “State Secrets”.
oldgold
One thing that might occur, not the only thing, would be for the Judge to make an ethics referral to the Bar Association concerning the lawyers involved.
Steve LaBonne
@Jay: Not good enough. The deadline should be 5 pm today on pain of contempt.
catfishncod
@Steve LaBonne: It’s more than that. Boasberg was Kavanaugh’s classmate and (less well sourced) roommate at Yale Law. He is considered a “feeder judge” sending many clerks to SCOTUS justices. Roberts put him on the FISA court and has praised him on several occasions.
And the crowning point from the Trumpist angle: he’s the judge that ordered the release of “her emails”. You’d think that would be something that would prompt a “Thanks, I won’t forget it” from FFOTUS – but clearly they did.
It’s not even the constitutional crisis angle that this would repudiate. Savaging Boasberg sends the signal that the whole FedSoc coterie will get zero credit or consideration in this maladministration. They’re not going to be made men.
Roberts needs to think hard about how well Trump’s “memory” works.
russell
Who’s gonna do the actual putting?
In principle it should be the federal marshals but I have zero confidence they’re gonna come down on the side of the courts.
Baud
@Jay:
Cite?
NotMax
@Steve LaBonne
Although extremely rare in practice, judges retain the authority to deputize officers of the court to enforce compliance to orders. Such deputies being under the jurisdiction of the judicial branch, not of the DOJ.
Steve LaBonne
@russell: As I said, if that’s the case- as I fear it may be- we need to know it now.
Baud
@russell:
Citizens’ arrest!
Steve LaBonne
@NotMax: A lot of extremely rare things are happening. Nobody should be doing business as usual.
Belafon
@Old School: “So, why didn’t the mandate of the electorate apply to Clinton, Obama, or Biden?”
jonas
@Parfigliano: A more immediate problem is that they’re almost certainly looking for an excuse to call off or indefinitely postpone the 26 midterms, particularly if it looks like GOPers will be going down in a 2010-style route, or worse. Neutering the courts now is a first step towards that goal.
Jay
@Baud:
So far, only the FTFNYT has it up, just google the Judge.
Steve LaBonne
@jonas: Elections are run by the states. They would have to send in the army to prevent blue states from holding them. If red states want to sit this one out, more power to them.
Steve in the ATL
@Belafon: exactly.
Steve LaBonne
@Belafon:
Do I really have to explain it to you?Old School
@catfishncod:
I see Bloomberg Law says that is true.
Steve LaBonne
@Old School: “I’ll do anything for Trump but I won’t do that.”
sentient ai from the future
the fact that mike johnson is now threatening jurisdiction stripping or other legislative reprisals for the courts having the temerity to demand information from the shitbag admin indicates to me that they don’t think boasberg et al are going to back down on their own.
i think he’s probably right about that, and i wonder if he can keep the entire caucus together on something like that. i doubt it, but i also doubted they’d be able to keep things together long enough to pass a budget.
Steve LaBonne
@sentient ai from the future: Empty bluster, even Chuckie would filibuster that.
WaterGirl
@Jay: Do you happen to have a link to that?
cw moss
Lawyer here, but I don’t do anything that’s remotely close to this federal court stuff (divorce atty in what DC folks would consider a PNW backwater). I’ve had a sick feeling in the pit of my stomach since the immunity decision last summer. I’ve half-jokingly referred to it as America’s Enabling Act. I am somewhat reassured at the new leaders cropping up to oppose the fascists and glad to see old guard folks like Schumer being treated with the disrespect they’ve earned. But it’s scary time now. The constitutional crisis is well upon us. America as we thought of it, and have been taught to think of it, is past. Like Cheryl ROFER says, we need to be thinking and planning for what will come next while at the same time fighting for democratic self-rule, republican form of government, etc.
Even if trump’s corrupt toadies violate court orders, the courts should continue to issue them and everyone else needs to scream the alarm at every opportunity.
WaterGirl
@NotMax: Thanks for sharing that. I read that same thing a few days ago but couldn’t remember where I read it, so I was hesitant to jump in with that.
WaterGirl
@Belafon: Easy! None of them were Kings, like FFOTUS.
WaterGirl
@sentient ai from the future:
I seem to have missed that. Can you point me to where I could find that?
Raoul Paste
All the more reason to show up and protest on April 5
The message needs to be sent “this is not OK“.
OlFroth
Jail the attorneys for contempt of court.
WTFGhost
@Steve LaBonne: I don’t know much law, but I also bet that’s on some hypothetical “top ten things to tell a judge, if you really want to get them good and angry.”
It’s like, I could see a judge ordering the DOJ lawyers into holding for contempt, and telling the DOJ to send more, until they send someone willing to do this correctly. It would be like a Dr. Seuss book, because it wouldn’t mirror the real world at all, until finally the janitor comes in – last person at the DOJ – and says “Your honor, I don’t know why I shouldn’t just tell you what you want to hear. I don’t know no law that says I can’t speak to you about this. But the President ordered all of us not to talk.”
…you know, and *finally* the judge says “that is what I was waiting for, someone to tell the truth.”
Jay
@WaterGirl:
https://www.nytimes.com/2025/03/24/us/politics/judge-ruling-trump-deportations-alien-enemies-act.html
Steve LaBonne
@Raoul Paste: My wife and I will absolutely be at the one in our town.
Bill Arnold
@Baud:
Can a court pay a bounty hunter directly?
Old School
@WaterGirl:
I seem to have missed that. Can you point me to where I could find that?
Josie
@WaterGirl:
https://www.nbcnews.com/politics/congress/speaker-mike-johnson-floats-eliminating-federal-courts-rcna197986
bbleh
So IANAL either, but hang on.
Yes there is always contempt (although I don’t know what material effect that would have), but isn’t the pending question still whether the INS or CBP or DHS or whoever violated his order? I thought his demand for information was to support of his consideration of that question, but with or without the info the question remains.
Can’t he maybe keep pounding on them to get the info, but if they succeed in stonewalling him, ultimately say “ok, then I find you in violation of the order.”
Of course they could then appeal that, and again I’m not sure what material effect such a finding would have, given that they’re giving every sign they’re prepared to just ignore a ruling that goes against them, but at least the ruling would have been made.
Or is this wrong?
catfishncod
@cw moss: It’s important to note that *this* version of America is over, but the Republic need not be. The America being killed is the Third America, the New Deal / Great Society America… but it was born of the death of the Second America that the Unionists and the “Radical” Republicans built over slavers’ violent objections. And *that* was built from the bisected corpse of the First America that the Founders cobbled together.
The challenge is real, and vast, and deep, but it is not the end. It is time to build a Fourth America. That should be our long term vision.
WTFGhost
@bbleh: I recall the judge waiting on two pieces of information.
First, “when I gave my verbal order, were planes in the air, that could have been recalled, pursuant to my verbal order?”
Second, “how do you call this a Venezuelan incursion?”
Refusing to answer the first question would get the judge to assume we’d disobeyed the judge’s order, while planes were in the air.
Refusing to answer the second, well, that would essentially allow the judge to rule against you or I, if we were defendants. If we claimed immunity, under a law, but refused to share the facts of that immunity, the judge would rule we had no such immunity, and… again, you, or I, would be in big trouble. Especially if we were so rude in our refusals.
Steve in the ATL
Thai isn’t going to end well. Federal judges have MASSIVE egos.
WaterGirl
@Raoul Paste: Protest on April 5?
I must be living in a cave because I haven’t seen anything about that.
RaflW
@catfishncod: “Savaging Boasberg sends the signal that the whole FedSoc coterie will get zero credit or consideration” unless they bow endlessly to His MAGAness.
Because that’s how everything around Trump works. Loyalty is one-way, permanently subject to immediate withdrawal. It’s the lesson human rights abuser Marco Rubio has most strongly internalized. You’ll never, ever see that sweaty upper lip say anything Donald doesn’t want to hear.
Marco has it so bad, I’m pretty sure he’s jumping ahead and pre-criming before being asked.
WaterGirl
@Old School: @Josie:
Holy fucking fuck!
Steve LaBonne
@WaterGirl: Just Google “April 5 protest” and you’ll get many results. That’s how I confirmed there will be one where I live.
WaterGirl
@catfishncod: Interesting way of looking at America. The 3rd iteration is over; hopefully the 4th is yet to come.
WaterGirl
@Steve in the ATL:
I have never been so happy about that fact in my life!
RaflW
@Old School: I assume John “Invisible” Thune would have to nuke the 60 vote threshold to accomplish what Johnson threatens. Doesn’t mean he won’t, but so far – other than some committee hearing fireworks this morning for Gabard, Waltz et all – the Senate seems to be the Lion in Slumber.
WaterGirl
@Steve LaBonne:
re: the choice of April 5
FFOTUS is 0 for 5:
conscienceguiding force in achieving (anything)peacetolerancemutual respedcw moss
@cw moss: *Cheryl Rofer
Quaker in a Basement
@Steve LaBonne: But then the two houses of Congress meet in joint session and…[checking]…J.D. Vance presides over the counting of electoral votes.
Steve LaBonne
@WaterGirl: Thanks, I didn’t know the significance of April 5.
Steve LaBonne
@Quaker in a Basement: There are no electoral votes in 2026. One thing at a time.
ExPatExDem
I’m not confident at all that this would happen.
cw moss
@catfishncod: yes, I agree with your whole statement!
Goku (aka Amerikan Baka)
@ExPatExDem:
Oh come on. I’m not happy with Schumer myself, but I think he’d absolutely stand firm on this. If he didn’t, he’d be done as the Senate Dems’ leader
Steve LaBonne
@ExPatExDem: I am no Schumer fan, but that’s ridiculous.
ExPatExDem
@Goku (aka Amerikan Baka): I think he would verbally express disapproval. Beyond that, I’m not sure.
If Wall Street told Chuck they were onboard with having the Courts neutered, would he disobey? I can’t answer “yes” unequivocally.
Goku (aka Amerikan Baka)
@ExPatExDem:
At the very least, I think several Dems, in the House and Senate, would openly revolt against him if he caved on something like this. I can’t see Jeffries being OK with this
Ramona
@Steve LaBonne: I heard on Allison Gill’s Daily Beans last week that the judge could deputize somebody to enforce an arrest for contempt of court if the US Marshals defy the court. Could this be true?
Jay
@Ramona:
Yes.
Jay
Marcie Wheeler points out that the “States Secrets” claim, like we all know, is bullshit.
A crapload of what they are trying to hide is out in public and infront of the Judge.
https://www.emptywheel.net/2025/03/25/kristi-noem-invokes-state-secrets-to-cover-up-her-inability-to-id-women-as-women/
prostratedragon
@catfishncod: Strikes me as a very good way to think of it. The “America is over” talk is a good way to wind up running into an abyss.
WaterGirl
@cw moss: I fixed that for you.
Ramona
@Jay: I’m glad! I was in despair until I heard that.
MisterForkbeard
@WaterGirl: I keep getting notices every year for deals on renewing. I don’t want a deal! I wanna give Talkingpointsmemo the full price :)
randy khan
@sentient ai from the future:
A jurisdiction-stripping bill would be subject to a filibuster in the Senate. While I am not thrilled with Schumer, I have a hard time imagining him caving on that kind of bill. So that means that the Republicans in the Senate would have to be willing to kill the filibuster to pass it.
MisterForkbeard
@randy khan: Jurisdiction-stripping or removing certain circuits would probably cause an enormous upheaval. I can’t see the Senate Dems letting it go, and I’d expect a full-court-press from Dems on the literal destruction of the democracy.
“Republicans are destroying the country because judges just wanted to find out if Republicans are obeying the law. They aren’t. Every Republican that voted for this needs to resign today.”
terraformer
@russell: there was an article over at Democracy Docket about the Marshalls issue – key point, at least in terms of civil contempt:
“The rule (4.1 Federal Rules of Civil Procedure) begins in section (a) by instructing that, as a general matter, process “must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose.”
So there might be a glimmer that we won’t have to hope that the Executive enforces against itself…
Helen
@catfishncod: I’ve never heard of this idea of a fourth republic before, but it interests me. There is,roughly, a 70-80 year gap between each republic. First republic c.1790 to 1860; second republic 1860-1935; third republic 1935-2015 (Trumps first term). In human terms, about 4 generations for each republic. Young adults are the great grandchildren of those who fought the fascists of WWII. And they are the grandchildren of those who fought the Cold War and Vietnam. I believe I underestimate how different they view the world. I want to believe this country will come through this craziness stronger and better, but I believe you’re right in that it will be very different.
catclub
I remember during Trump I, Trump was talking with oil lease holders who had to account for what they drilled and pay The Interior Dept, and possibly various Tribes, for the amount. Trump said, “Why don’t you just take it, who is going to stop you (now)?”
Medicine Man
@catfishncod: Interesting how they’ve almost speed ran the relationship Putin has with his oligarchs. Started with them enthroning the bloody gnome to protect their ill-gotten gains and now the czar can dispose of them as he pleases.