Month: May 2025

Donald Trump’s dizzying assault on democratic norms and the rule of law strains many institutions in and outside of government. One major casualty is the Department of Justice (DOJ), which has suffered a severe loss of credibility. Attorney General Pam Bondi acts more like a Trump cheerleader than the Nation’s chief law enforcement officer. She and other DOJ leaders such as Emil Bove place unquestioning subservience to Trump above allegiance to their constitutional oaths and their ethical obligations as officers of the court to treat the judiciary with honesty and respect.

Evidence of DOJ’s decline abounds.^[1]See here, here, and here. One  striking example is the attempted use of the Alien Enemies Act (AEA) to summarily deport hundreds of illegal migrants to the notorious El Salvador CECOT prison. The AEA deportation operation has been an exercise in bad faith from the outset. It features misuse of a statute that clearly does not apply, disingenuous and downright deceitful legal arguments, stonewalling judges, disciplining DOJ attorneys for excess candor in court, and evading and grossly distorting judicial decisions—including those of the Supreme Court.

The obvious goal of the operation was to deport large numbers of suspected gang members with as little investigative effort, due process, and judicial intervention as possible. To do this, the Trump Administration dusted off the AEA, a 1798 statute that had been used sparingly, most recently during World War II. The AEA grants the president broad power to deport non-resident citizens of an enemy nation that is engaged in declared war or any invasion or predatory incursion against the United States.^[2]See here for background on the AEA.

The deportation operation was developed stealthily and initiated with lightning speed in a way that Justice Sotomayor later observed “can be understood only as covert preparation to skirt both the requirements of the Act and the Constitution’s guarantee of due process.” On March 14, President Trump signed a proclamation invoking the AEA with regard to the Venezuelan gang Tren de Aragua. On the same day, Attorney General Bondi issued a memo to law enforcement officers asserting that Trump’s proclamation authorized the seizure and summary deportation of suspected gang members without a warrant, due process, or judicial review. Deportations commenced the next day, March 15. They included hundreds of Venezuelans as well as illegal migrants from other countries.

The hasty, seemingly haphazard execution of the operation along with the total absence of due process created many problems. From what little is known, there is scant evidence that some (perhaps many) deportees were in fact gang members. Apparently, the evidence of gang membership often consisted of nothing more than tattoos and clothing. Clearly, at least some individuals were wrongly deported.

The most infamous case is Kilmar Abrego Garcia, who is neither Venezuelan nor an alleged Tren de Aragua gang member. (He’s said to be a member of MS-13.) Abrego Garcia was sent to CECOT despite an administrative order prohibiting his deportation to El Salvador. A DOJ attorney conceded  that Abrego Garcia’s removal was a mistake—an act of candor for which he was later fired. Four lower court federal judges and all nine Supreme Court justices concluded unanimously that Abrego Garcia had been wrongly deported and should be returned.

The Trump Administration responded with intransigence and deception. They claimed to be unable to retrieve Abrego Gracia from Salvadoran custody. Trump and Salvadoran President Bukele staged a bit of Kabuki theater at the White House in which Bukele insisted he would not “smuggle” Abrego Garcia back to the United States as Trump looked on approvingly. 

DOJ argued, utterly implausibly, that court orders to “facilitate” Abrego Garcia’s return did not require the U.S. Government even to ask El Salvador to give him back. Attorney General Bondi stated sarcastically that the Government’s only obligation was to provide him a plane ride back to the United States if he somehow extricated himself from Salvadoran custody. Trump later exposed this deceit by acknowledging several times that he could obtain Abrego Garcia’s return by simply asking but that his lawyers “don’t want to do this.”

DOJ continues to prevaricate and stonewall. However, it’s hard to believe the courts will condone this charade that makes a mockery of their decisions. In fact, the entire house of cards that is the AEA deportation scheme will likely collapse.

Ultimately, the courts are almost sure to rule AEA inapplicable by its plain terms. The United States is not at war with Venezuela; the many illegal activities of Tren de Aragua, reprehensible as they are, do not resemble any kind of invasion of the United States; and there’s no evidence that Tren de Aragua is a government actor. On the contrary, U.S. intelligence agencies found no connection between the gang and the Venezuelan government.^[3]See here and here. So far, lower federal courts have consistently rejected AEA’s  application as have most legal experts even on the right.

A preliminary Supreme Court decision already undermines the operation’s key goal of avoiding due process and judicial review. The Court did not reach the issue of whether AEA applied, and it vacated a lower court order against the deportation of Venezuelans on procedural grounds. Importantly, however, the justices concluded unanimously that the deportees were entitled to due process and judicial review on the applicability of the AEA and whether they were in fact covered by Trump’s proclamation invoking it. Specifically, the Court held:

“AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”   

This clearly indicates that no further AEA deportations can occur without due process and the opportunity for judicial review.^[4]Unsurprisingly, DOJ takes an extremely narrow view of what due process is required under this decision. The courts will likely insist on more. Moreover, since the hundreds of initial deportees were denied due process and judicial review prior to their removal, the Supreme Court’s decision seems to mean that their deportations were illegal and, like Abrego Garcia, they should be returned to the United States. This will certainly be true if the courts ultimately rule the AEA inapplicable.^[5]It appears that the Government has the legal right to regain custody of the Venezuelan deportees and return them to the United States. Reportedly, the United States and El Salvador entered into an … Continue reading

Nevertheless, the Trump Administration and DOJ remain defiant. In addition to their continuing gamesmanship with the courts, they are waging a public relations campaign demonizing Abrego Garcia and other deportees along with anyone who supports their return. Of course, whether the deportees are good or bad people is wholly irrelevant. They are entitled to due process as is a person accused of the most heinous crimes. If the Trump Administration can violate their rights with impunity, they can potentially do the same to anyone.

The attacks on judges are reprehensible. Trump described a judge who ruled against him as a “radical left lunatic” and called for his impeachment. Shamefully, Attorney General Bondi joined in this demagoguery, accusing the same judge of “support[ing] Tren de Aragua terrorists over the safety of Americans.”

The end of the AEA operation may come sooner rather than later. Judges are losing patience with DOJ’s mendacious tactics. On April 17, Judge Harvey Wilkinson, a highly respected conservative, wrote a scathing opinion in the Abrego Garcia case deriding DOJ’s legal arguments as “shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

Two days later, the Supreme Court intervened in another AEA case and issued an order by a 7-2 vote barring the deportation of certain detainees “until further order of this Court.” This unusual action is widely seen as a signal that the Court has finally had enough of the Trump Administration’s disingenuous tactics.^[6]See here, here, here, and here for background and analysis. One pundit observed that apparently Justices Alito and Thomas, the two dissenters, “are now the only members of the Court who are still willing to trust the Trump administration to faithfully abide by court orders in an [AEA] case.”  

The AEA operation is also losing the PR battle. By wide margins, the public approves Trump’s efforts to stem illegal immigration and deport illegal migrants who are convicted criminals or otherwise shown to be dangerous. However, polls indicate that most Americans disapprove the AEA operation’s KGB-like tactics of disappearing individuals without due process or judicial review. Also, a large bipartisan majority of the public opposes violation of judicial decisions. Ninety-five percent of Democrats and 82 percent of Republicans say the Trump Administration must abide by decisions of the Supreme Court.

The demise of the AEA deportation operation would vindicate  the rule of law and, hopefully, produce a useful course correction in immigration enforcement. Immigration authorities should prioritize arresting and deporting truly dangerous illegals and conduct the investigative work necessary to ensure that the people they apprehend actually fit that description. They have many tools available to do this and, with the Trump Administration’s control of Congress, the means to obtain any necessary additional resources.

The most lasting damage from all of this may be DOJ’s loss of stature in the eyes of the courts if it continues to engage in contortions like these in its efforts to defend Trump’s often indefensible impulses.