The deputy attorney general is joining the ongoing debate at the White House over invoking a powerful “state-secrets privilege” to keep a judge from discovering exactly when highly unusual deportation flights took off from U.S. soil to a feared El Salvador prison.
Todd Blanche, the second-in-command at the Department of Justice and President Donald Trump’s former personal lawyer, made the revelation in a court filing Friday morning vaguely describing his “direct involvement in ongoing Cabinet-level discussions regarding invocation of the state-secrets privilege.”
The disclosure indicates how seriously the Trump administration is taking the matter, which could deepen a fight over the extent of the president’s power to continue his aggressive deportation policy.
If used, the maneuver would amount to a powerful challenge to U.S. District Judge James E. Boasberg’s ability to discern whether the Trump administration willfully ignored his Saturday night order that the government immediately halt deportation flights bound for El Salvador.
Blanche’s declaration marks the latest turn in what’s spiraling into a full-blown constitutional crisis, as the Trump administration balks at a federal judge trying to assert the judiciary’s ability to rein in the executive branch. An Immigration and Customs Enforcement operation last week rounded up migrants accused of being members of the Venezuelan Tren de Aragua gang, just as Trump quietly invoked a wartime law-enforcement-empowerment measure called the Alien Enemies Act to ship them to El Salvador’s Terrorism Confinement Center. The facility has been repeatedly accused of engaging in torture. Trump’s move, in turn, led to a legal challenge by human rights advocates and a hurried order by Boasberg.
This week, the case has morphed into an accountability exercise, with Boasberg seeking to figure out whether federal agencies are willfully ignoring his orders.
In court, attorneys recently hired at the DOJ have argued that the judge’s verbal order didn’t carry the same legal weight as his written order, which appears to have been filed when the flights had already left U.S. airspace. But the administration has also minimized the judge’s authority outright, with Justice Department lawyers seeking to have an appellate court remove him from the case — and Trump taking to Truth Social to call Boasberg a “Radical Left Lunatic of a Judge” who “should be IMPEACHED!!!” Trump restated his complaints about the judge from the Oval Office on Friday, saying he “has no idea what’s going on.”
The tension has reached a boiling point, with Supreme Court Chief Justice John Roberts feeling the need to issue a rare public statement saying, “For more than two centuries, 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.”
Use of the state secrets privilege would be yet another attempt to circumvent not just Boasberg, but oversight by the entire judicial branch.
William G. Weaver, a University of Texas law professor who previously spent eight years in U.S. Army signals intelligence in Germany, has written that “the state secrets privilege is the most powerful secrecy privilege available to the president.”
This black box legal tactic first appeared during the Cold War, when the U.S. Air Force refused to divulge information about the 1948 crash of a Boeing B-29 Superfortress to the widows of three civilians who were killed, saying it couldn’t do so “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.” When the matter reached the Supreme Court in 1953, it largely deferred to the government’s secrecy reasoning.
Since then, however, the measure has been roundly criticized by legal scholars, who have argued the government can use national security as an excuse to cover up misbehavior.
A 2022 white paper published in the Duke Journal of Constitutional Law & Public Policy argued that the FBI was unfairly using the privilege to deny release of information, taking the position that “it is unjust to prevent respondents from claiming that the government violated their constitutional right to freedom of religion simply because the government aims to use evidence of the violation in its own defense.”
The American global war on terror has only exacerbated the use of the state secrets privilege, with several legal papers documenting its ability to essentially halt any judicial inquiries. A 2007 article in Hastings Constitutional Law Quarterly, the nation’s longest-running legal journal on such matters, warned about its sudden rise as a go-to tool.
“It is a powerful privilege; once invoked, it often leads to dismissal of the case. Formerly a rare tactic, the privilege has been invoked with increasing frequency by the George W. Bush administration in litigation challenging its tactics in its war on terror,” its author wrote.
University of Virginia law professor Amanda Frost documented how the Bush administration leaned on that justification to deny the public information about the CIA’s secret capture and torture of terrorism suspects and the NSA’s warrantless wiretaps.
Her 2007 paper argued that a president’s invocation of this legal maneuver is tantamount to a power grab, writing that “when the executive successfully argues that a federal court must dismiss whole categories of cases over which Congress has assigned jurisdiction, it intrudes not just on the power of courts and the rights of individuals, but on the jurisdiction-conferring authority of the legislature as well.”
That could be why Merrick Garland issued a department memo when he was attorney general in 2022 that limited its use “only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests.”
Blanche’s declaration on Friday did not say how far along the Trump administration was in considering the use of the state secrets privilege, but he reiterated an ICE official’s previous sworn statement that “doing so is a serious matter that requires careful consideration, of national security and foreign relations and cannot be properly undertaken in just 24 hours.”
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Jose Pagliery is a reporter at NOTUS.