The government’s serial lawbreaking in Donald Trump’s second term raises the recurring question: What are the consequences?
It’s an important question with a frequently unsatisfying answer — whether due to the law itself, the judges tasked with carrying it out, or some combination of the two.
But even if the prospect of personal accountability for Trump officials seems remote, sometimes there are remedies for clear rights violations, however belated and meager those remedies might be.
Take the case of Kilmar Abrego Garcia, whom the Trump administration illegally sent from the U.S. to El Salvador and, only after months of resistance, complied with a Maryland judge’s order to facilitate his return.
In the latest example of a judge recognizing that rights are only as good as their remedies, Washington’s chief federal trial judge cited Abrego’s case to justify an order for the government to facilitate the return of Venezuelans who were illegally sent to El Salvador in March under the 18th-century Alien Enemies Act.
While it’s unclear what will come of U.S. District Judge James Boasberg’s order in practical terms, it stands out for its plain reiteration of the government’s lawlessness and the understanding that that lawlessness can’t go unnoticed, or unacted upon.
Boasberg, who is D.C.’s chief district judge, began his seven-page opinion and order by noting that he had previously found that the government denied due process to those Venezuelans when it deported them “in defiance of this Court’s Order.” The Obama-appointed judge reminds the reader that we’re talking about official lawbreaking from the beginning.
The most recent chapter of this long-running litigation stems from Boasberg telling the government to give him its plan for how it will provide belated due process to the people it deported without giving them a chance to challenge their designation under the 1798 wartime law and the validity of Trump’s proclamation invoking it.
The judge observed that the matter had become logistically complicated by the fact that the men were back in Venezuela and elsewhere after initially being sent to El Salvador’s notorious Terrorism Confinement Center, also known as CECOT. But he maintained that the plaintiffs still deserved the chance to vindicate their rights.
Yet he wrote Thursday that U.S. officials didn’t seem interested in participating in the process and, instead, “essentially told the Court to pound sand.”
That’s what led him to cite Abrego’s case in similarly taking the step of ordering the government “to facilitate the return from third countries of those Plaintiffs who so desire.” In this context, “third countries” are ones outside of Venezuela and the U.S., with Venezuela exempted due to foreign-affairs sensitivities that the U.S. has asserted after its abduction of leader Nicolás Maduro from that country.
But the judge noted that plaintiffs in third countries and in Venezuela can still file court papers seeking to show that Trump’s proclamation invoking the Alien Enemies Act was unlawful and that they don’t qualify under it in any event.
Boasberg wrote that he was “mindful of the flagrancy of the Government’s violations of the deportees’ due-process rights that landed Plaintiffs in this situation,” so he “refuses to let them languish in the solution-less mire Defendants propose.”
As for the potentially limited practical effects, the judge noted that anyone who gets back to the U.S. will be taken into custody pending further litigation and could be deported again. He wrote that the plaintiffs’ lawyers were unable to say how many of the 137 deported Venezuelans were still in that country and how many want to press their claims, but the lawyers said at least a handful do.
Whatever comes of the ruling — and there’s every reason to think that Boasberg will enforce it to the greatest extent he can — it stands for a crucial principle. If the government didn’t have to right its wrongs, the judge wrote, it “could simply remove people from the United States without providing any process and then, once they were in a foreign country, deny them any right to return for a hearing or opportunity to present their case from abroad.”
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