The Trump administration aggressively escalated its fights with the nation’s courts Monday night, electing to invoke the so-called “state secrets privilege” in an attempt to completely stonewall a federal judge from asking any more questions about the way it is using a wartime power to rapidly deport Venezuelan migrants without due process.
In a nine-page court filing that was backed by declarations from three of the country’s top government officials, the Department of Justice asserted what it called “absolute” power that cannot be checked by the judiciary.
“President Trump is ‘the only person who alone composes a branch of government,’” it asserted while quoting a recent Supreme Court case. “Consequently, this Court owes President Trump ‘high respect.’”
Attorney General Pam Bondi, Secretary of State Marco Rubio and Homeland Security Secretary Kristi Noem followed up with declarations they signed claiming that sharing any further information about the administration’s deportation strategy, as Bondi put it, “would cause significant harm to the foreign relations and national security interests of the United States.”
The move is a flex of power for the executive branch, which is under political attack and judicial scrutiny over the way President Donald Trump has invoked the 1798 Alien Enemies Act to quickly detain and deport certain migrants to an El Salvador prison accused of using torture.
Monday night’s court filing was also a defensive strike against U.S. District Judge James Boasberg, who only hours earlier stood by his order restraining the government from continuing that method of deportation. As part of that order, he cited a concern for the safety and well-being of Venezuelan migrants who were flown to El Salvador’s Terrorist Confinement Center this month.
Last week, the federal judge had demanded to know the exact timing of three government flights that had departed from the United States despite his orders to stop the deportations. The Trump administration is choosing to drape any details about those flights with the blanket of national security privilege, refusing to even say when those planes took off or exactly how many of those individuals have been deemed “alien enemies” without a court finding or trial.
The government lawyers who authored Monday night’s brief did not hold back from sharp rebukes aimed at Boasberg.
“The executive branch hereby notifies the court that no further information will be provided … based on the state secrets privilege,” they wrote.
“The Court has all of the facts it needs to address the compliance issues before it,” they added.
Legal scholars generally agree that the president has expansive powers to address what officials deem grave national security concerns. However, in recent days, several experts have warned about the manner in which the president has threatened to invoke it — and the speed at which he has now used it to stymie attempts to rein in his power.
Justice Department lawyers also injected politics into their legal reasoning, writing that “this is a case about the president’s plenary authority, derived from Article II and,” they added, “the mandate of the electorate.”
Government lawyers also lobbed an insult, warning that “further intrusions on the executive branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the court lacks competence to address.”
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Jose Pagliery is a reporter at NOTUS.