Judge Boasberg got his vindication in the frivolous “complaint” the DOJ filed against him, and now he’s calling out the DOJ’s bullshit in the long-running case that caused them to file the complaint against him in the first place: the JGG v. Trump case regarding the group of Venezuelans the US government shipped off to CECOT, the notorious Salvadoran concentration camp.
Boasberg, who until last year was generally seen as a fairly generic “law and order” type judge who was extremely deferential to any “national security” claims from the DOJ (John Roberts had him lead the FISA Court, for goodness’ sake!), has clearly had enough of this DOJ and the games they’ve been playing in his court.
In a short but quite incredible ruling, he calls out the DOJ for deciding to effectively ignore the case while telling the court to “pound sand.”
On December 22, 2025, this Court issued a Memorandum Opinion finding that the Government had denied due process to a class of Venezuelans it deported to El Salvador last March in defiance of this Court’s Order. See J.G.G. v. Trump, 2025 WL 3706685, at *19 (D.D.C. Dec. 22, 2025). The Court offered the Government the opportunity to propose steps that would facilitate hearings for the class members on their habeas corpus claims so that they could “challenge their designations under the [Alien Enemies Act] and the validity of the [President’s] Proclamation.” Id.Apparently not interested in participating in this process, the Government’s responses essentially told the Court to pound sand.
From a former FISC judge—someone who spent years giving national security claims every benefit of the doubt—”pound sand” is practically a primal scream.
Due to this, he orders the government to work to “facilitate the return” of these people it illegally shipped to a foreign concentration camp (that is, assuming any of them actually want to come back).
Believing that other courses would be both more productive and in line with the Supreme Court’s requirements outlined in Noem v. Abrego Garcia, 145 S. Ct. 1017 (2025), the Court will now order the Government to facilitate the return from third countries of those Plaintiffs who so desire. It will also permit other Plaintiffs to file their habeas supplements from abroad.
Boasberg references the Donald Trump-led invasion of Venezuela and the unsettled situation there for many of the plaintiffs. He points out that the lawyers for the plaintiffs have been thoughtful and cautious in how they approach this case. That is in contrast to the US government.
Plaintiffs’ prudent approach has not been replicated by their Government counterparts. Although the Supreme Court in Abrego Garcia upheld Judge Paula Xinis’s order directing the Government “to facilitate and effectuate the return of” that deportee, see 145 S. Ct. at 1018, Defendants at every turn have objected to Plaintiffs’ legitimate proposals without offering a single option for remedying the injury that they inflicted upon the deportees or fulfilling their duty as articulated by the Supreme Court.
Boasberg points to the Supreme Court’s ruling regarding Kilmar Abrego Garcia, saying that it’s ridiculous that the DOJ is pretending that case doesn’t exist or doesn’t say what it says. Then he points out that the DOJ keeps “flagrantly” disobeying courts.
Against this backdrop, and mindful of the flagrancy of the Government’s violations of the deportees’ due-process rights that landed Plaintiffs in this situation, the Court refuses to let them languish in the solution-less mire Defendants propose. The Court will thus order Defendants to take several discrete actions that will begin the remedial process for at least some Plaintiffs, as the Supreme Court has required in similar circumstances. It does so while treading lightly, as it must, in the area of foreign affairs. See Abrego Garcia, 145 S. Ct. at 1018 (recognizing “deference owed to the Executive Branch in the conduct of foreign affairs”)
Even given all this, the specific remedy is not one that many of the plaintiffs are likely to accept: he orders that the US government facilitate the return of any of those who want it among those… not in Venezuela. But, since most of them were eventually released from CECOT into Venezuela, that may mean that this ruling doesn’t really apply to many men. On top of that Boasberg points out that anyone who does qualify and takes up the offer will likely be detained by immigration officials upon getting here. But, if they want, the US government has to pay for their plane flights back to the US. And, in theory, the plaintiffs should then be given the due process they were denied last year.
Plaintiffs also request that such boarding letter include Government payment of the cost of the air travel. Given that the Court has already found that their removal was unlawful — as opposed to the situation contemplated by the cited Directive, which notes that “[f]acilitating an alien’s return does not necessarily include funding the alien’s travel,” Directive 11061.1, ¶ 3.1 (emphasis added) — the Court deems that a reasonable request. It is unclear why Plaintiffs should bear the financial cost of their return in such an instance. See Ms. L. v. U.S. Immig. & Customs Enf’t (“ICE”), 2026 WL 313340, at *4 (S.D. Cal. Feb. 5, 2026) (requiring Government to “bear the expense of returning these family units to the United States” given that “[e]ach of the removals was unlawful, and absent the removals, these families would still be in the United States”). It is worth emphasizing that this situation would never have arisen had the Government simply afforded Plaintiffs their constitutional rights before initially deporting them.
I’m guessing not many are eager to re-enter the US and face deportation again. Of course, many of these people left Venezuela for the US in the first place for a reason, so perhaps some will take their chances on coming back. Even against a very vindictive US government.
The frustrating coda here is the lack of any real consequences for DOJ officials who treated this entire proceeding as a joke—declining to seriously participate and essentially daring the court to do something about it. Boasberg could have ordered sanctions. He didn’t. And that’s probably fine with this DOJ, which has learned that contempt for the courts carries no real cost.
Unfortunately, that may be the real story here. Judge gets fed up, once again, with a DOJ that thumbs its nose at the court, says extraordinary things in a ruling that calls out the DOJ’s behavior… but does little that will lead to actual accountability for those involved, beyond having them “lose” the case. We’ve seen a lot of this, and it’s only going to continue until judges figure out how to impose real consequences for DOJ lawyers for treating the court with literal contempt.
Back in August, we wrote about the Department of Justice’s unprecedented decision to file a judicial misconduct complaint against D.C. Chief Judge James Boasberg. The complaint, which Attorney General Pam Bondi tweeted about in what was itself likely a violation of the law governing such complaints, accused Boasberg of violating judicial ethics by… privately expressing concerns to other judges that the Trump administration might not comply with court orders.
Concerns that, as we noted at the time, turned out to beentirely justified.
Let’s back up and explain what happened. The DOJ’s complaint centered on comments Boasberg allegedly made at a private Judicial Conference meeting on March 11, 2025, where he supposedly “push[ed] a wholly unsolicited discussion about ‘concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis.'” The complaint cited “Attachment A” as evidence of what Boasberg said.
There was just one small problem: the DOJ never actually provided Attachment A with the complaint. Actually, there were many, many problems, but we’ll get to those.
The complaint has now been fully resolved, and it went about as well for the DOJ as you might expect. Sixth Circuit Chief Judge Jeffrey Sutton, to whom Chief Justice Roberts transferred the complaint, dismissed it in a brusque seven-page ruling that reads like a judge who is deeply unimpressed with having his time wasted.
Chief Judge Sutton’s ruling is not just a tour de force in how a judicial ruling can persuasively give the back of its hand to a claim; it is, or at least ought to be, a humiliating smackdown for the Department of Justice—which bungled every single aspect of its misconduct complaint, from publicly announcing it to making spurious arguments about what the alleged misconduct actually was (the distinction between “public” and “private” really shouldn’t be hard, nor should the fact that March 11 is prior to March 15) to refusing to provide the very evidence on which the complaint purported to rest.
Vladeck also noted, in discussing how the DOJ never actually followed through on the steps it would obviously take if it were a legitimate complaint,that this proved how it was all political in the first place:
It turns out, it was never about adjudicating Boasberg’s behavior; it was about making splashy headlines and fueling right-wing attacks on the judiciary without regard to whether DOJ’s specious charges would withstand meaningful scrutiny.
Besmirching a long-time judge… for the memes.
The problems with the DOJ’s complaint were numerous, but let’s start with the most embarrassing one mentioned above: the DOJ never actually provided the evidence it claimed supported its accusations.
The Department identified one source of evidence, Attachment A, for the judge’s statement and for the setting in which it occurred. The complaint, however, did not include the attachment. The D.C. Circuit contacted the Department about the missing attachment and explained that, if it failed to submit the attachment, the circuit would consider the complaint as submitted. The Department did not supply the attachment.
In the absence of the attachment, the complaint offers no source for what, if anything, the subject judge said during the Conference, when he said it, whether he said it in response to a question, whether he said it during the Conference or at another meeting, and whether he expressed these concerns as his own or as those of other judges.Later in the complaint, to be sure, the Department refers to a Fox News clip discussing the same allegation. But it does not identify any source, contain any specifics, or answer any of the above questions. A recycling of unadorned allegations with no reference to a source does not corroborate them. And a repetition of uncorroborated statements rarely supplies a basis for a valid misconduct complaint
So the DOJ filed an unprecedented misconduct complaint against a sitting federal judge, made a huge public spectacle of it, and then when asked to actually produce the evidence supposedly supporting its claims… just didn’t. Vladeck’s assessment is appropriately blunt:
DOJ’s failure to produce Attachment A is, frankly, mind-boggling…
But even putting aside the DOJ’s failure to provide any actual evidence, Sutton methodically demolished every other theory in the complaint.
On the claim that Boasberg’s comments at the Judicial Conference were somehow improper, Sutton pointed out that this is literally what the Judicial Conference is for:
A key point of the Judicial Conference and the related meetings is to facilitate candid conversations about judicial administration among leaders of the federal judiciary about matters of common concern. In these settings, a judge’s expression of anxiety about executive-branch compliance with judicial orders, whether rightly feared or not, is not so far afield from customary topics at these meetings—judicial independence, judicial security, and inter-branch relations—as to violate the Codes of Judicial Conduct. Confirming the point, the Chief Justice’s 2024 year-end report raised general concerns about threats to judicial independence, security concerns for judges, and respect for court orders throughout American history
(For what it’s worth, as someone who had the privilege a couple years back of being invited to a judicial conference to give a talk, I can confirm firsthand that there were many fascinating informal conversations that occurred over the course of a few days among judges comparing notes and thinking through larger issues that might impact the judiciary).
On the DOJ’s claim that Boasberg’s comments constituted an improper “public comment” on a pending case, Sutton noted two rather obvious problems: the comments were private, not public, and the case the DOJ was concerned about hadn’t even been filed yet:
The alleged comment does not refer to a case, and the J.G.G. action was not filed until four days later: March 15, 2025. Because the judge did not refer to a case, that all but guarantees that his comments did not “violate[] Canon 3A(6), Canon 2A, or the Judicial–Conduct Rules.” In re Charges of Jud. Misconduct, 769 F.3d 762, 788 (D.C. Cir. 2014). The comment at any rate was not a “public” one, as it was made in a closed-door meeting in which the communications are off the record and confidential. The complaint, notably, does not claim that the judge made public what was said in private at the Conference or its related meetings.
As for the DOJ’s argument that Boasberg’s subsequent handling of the J.G.G. case (involving the shipping of Venezuelans to a Salvadoran concentration camp) somehow proved bias, Sutton wasn’t having that either. The complaint, he noted, “does not explain how a Supreme Court ruling about a prior action by the judge necessarily shows willful indifference when the judge addresses a distinct set of circumstances in a later ruling.”
Furthermore, Sutton points out that if the DOJ doesn’t like Boasberg’s rulings in a particular case, its remedy is… to appeal. Not claim misconduct:
When the executive branch’s deep convictions about the law meet the judicial branch’s deep convictions about the law in a trial court, the answer is to invoke the appellate process, not the misconduct process, to resolve the dispute.
And then, almost as an afterthought, Sutton reminded the DOJ that even if it had prevailed, the judicial misconduct process can’t do what the DOJ apparently wanted it to do:
To the extent the complaint asks that the underlying case be reassigned to another judge, that is not a form of relief available through the complaint process.
In other words:
the DOJ filed a complaint
that was based on misleading evidence
which it never produced
alleging misconduct that (even if true) wasn’t actually misconduct
propped up with claims of bias based on actions that occurred later
which could not be signs of bias, and finally
sought relief that wasn’t even available.
If the DOJ were capable of embarrassment, this would be the time for it.
In his initial post on the complaint last year when it was filed, Vladeck had noted that the entire complaint was supposed to be a warning to other judges to shut up about any concerns about the Trump admin. One hopes that this ruling by Judge Sutton will reverse that and embolden more judges to do what’s right.
But wait, there’s more.
Because we now have even more evidence of just how absurd this whole episode was, thanks to a FOIA lawsuit seeking the mysterious Attachment A that the DOJ never produced. And thanks to that lawsuit, we’ve learned something remarkable: neither the DOJ nor the judiciary can actually explain how the DOJ came to possess this document in the first place.
In a declaration filed in that case, DOJ Senior Counsel Vanessa Brinkmann reveals some truly remarkable details about this document that was supposedly central to the DOJ’s case against Boasberg. First, the DOJ confirms the document exists and describes what it is:
Upon initial review of the document identified in this action as “Attachment A,” OIP observed that the document is a memorandum that bears the markings of a United States Court, is authored by a Federal Judge, and discusses matters internal to the Judicial Conference of the United States.
So it’s a document created by the judiciary, for the judiciary, about internal judiciary matters. And what does the judiciary think about the DOJ having this document? They’re not happy:
AOUSC Counsel conveyed to OIP, in no uncertain terms, the Federal Judiciary’s strenuous objection to the Department’s release of “Attachment A.” AOUSC Counsel further articulated that “Attachment A” was created to be an internal Judiciary document, for a specific Judiciary audience, concerning confidential Judiciary matters and is not now, nor was it ever an Executive Branch document. In sum, AOUSC Counsel advised OIP that it is the position of the AOUSC that “Attachment A” remains under the control of the Judicial Branch, is confidential, and is not subject to disclosure pursuant to the FOIA.
But here’s where it gets really interesting. How did the DOJ get this internal judiciary document in the first place? Apparently, nobody knows:
AOUSC Counsel further stated that the Judiciary made efforts to identify how “Attachment A” ended up in the possession of the Department and has not been able to identify a source of transmission of “Attachment A” from within the Judiciary to the Department. AOUSC Counsel additionally articulated that the Judiciary did not officially transmit or authorize the transmission of “Attachment A” to the Department or any external recipient. Specifically, AOUSC Counsel explained that, given the privileged nature of the document, the Judicial Conference at large would be the only entity that could approve its official release, and that it is the view of the AOUSC that the document is not an Executive Branch record subject to FOIA disclosure, but rather, a judicial record that remains under the control of the Judicial Branch.
And the DOJ’s own investigation into how it acquired this document?
Searches conducted of DOJ leadership office officials’ Departmental email accounts using e-discovery software revealed no electronic trail indicating transmission of “Attachment A” into the Department, nor has OIP’s point of contact within OAG been able to identify how “Attachment A” was received by the Department.
So let’s recap again:
the DOJ filed an unprecedented judicial misconduct complaint against a sitting federal judge based on a document that
it never actually provided as evidence
was created by the judiciary for internal purposes
the judiciary never authorized to be shared with the DOJ, and
neither the DOJ nor the judiciary can explain how the DOJ obtained in the first place.
This is the same DOJ that Attorney General Bondi claimed was acting to protect “the integrity of the judiciary.”
All of this suggests that perhaps one of Vladeck’s theories for why the DOJ refused to hand over Attachment A may have some weight behind it. He theorized that either Attachment A doesn’t actually say what the DOJ claims or that they got it “through means that it’s unwilling to have to identify—even confidentially as part of the judicial misconduct process.” The declaration in the FOIA case would seem to bolster that last point.
As Vladeck notes, Sutton’s dismissal should be the final word on this matter:
The outcome here should be seen for what it is: how a sober-minded jurist actually views these charges, versus how they’re manipulated and broadcast by the Department of Justice and right-wing mouthpieces to serve partisan political ends.
As for the less sober-minded among the commentariat:
Anyone who continues to claim at this point that Chief Judge Boasberg has done anything worthy of further investigation and/or impeachment is telling on themselves.
But of course, that would require the people pushing this narrative to care about things like facts, evidence, and the rule of law. Based on the DOJ’s conduct in this case, that seems like a lot to ask.
Nothing this administration does is subtle. Nothing about its anti-migrant purge has been anything less than brutish. As if to drive the point home that the bigots were running the shop, Donald Trump invoked the Alien Enemies Act to justify the stripping of due process from people whose only crime was usually just a civil infraction: being undocumented. Anyone who knows the history of that Act knows it was last used for the same purpose: to round up a bunch of non-white people and imprison/deport them.
As fast as it could, the administration rounded up anyone that looked Latino, tossed them on airplanes, and sent them to whatever country would take them. For more than 100 deportees, the final destination was El Salvador’s infamous CECOT prison, known mainly for its inhumane abuse of anyone unfortunate enough to end up there.
Judge James Boasberg has seen plenty from this administration already. He’s the judge who was received one of the first fuck you’s from the Trump anti-migrant machinery. The administration blew off his order to stop sending migrants to El Salvador, pretending it couldn’t do anything about the flights it had hurriedly sent airborne the moment it seemed Boasberg might issue an injunction.
Boasberg continues to thwart the administration’s unlawful actions. And because he’s chosen to do his job (rather than slip himself into Trump’s pocket like too many members of the Supreme Court), he’s been targeted personally by the administration. Earlier this year, Trump’s team filed a completely bogus misconduct complaint against him because he expressed very legitimate concerns about the current administration during a US court system judicial conference: that there was far more than a non-zero chance Trump’s administration would simply refuse to comply with court orders.
It wasn’t just a legitimate concern. This has actually happened more than once. Judge Boasberg has personal experience with the administration’s refusal to comply with the letter and/or spirit of his court orders.
A federal judge on Monday said the U.S. government denied due process to the Venezuelan men it deported to a prison in El Salvador in March after President Trump invoked the Alien Enemies Act.
[…]
Chief Judge James Boasberg of the U.S. District Court for the District of Columbia in his order agreed that they deserved the right to a hearing — whether by bringing them back to the U.S. or allowing them to pursue legal remedies from abroad.
“On the merits, the Court concludes that this class was denied their due-process rights and will thus require the Government to facilitate their ability to obtain such hearing. Our law requires no less,” Boasberg wrote in his opinion.
Lest we forget (as the Trump administration definitely wants you to), this is how this all began. I quote directly from the ruling [PDF] because this document ensures the government can’t claim ignorance of its own bullshit as this case continues to move forward:
These men were given “no advance notice of the basis for their removal,” nor were they informed that they could challenge their designation. The only reason that this Court was made aware of these impending removals was because a few of the men moved to El Valle had been able to contact their lawyers the day before, who rightly surmised that such a Proclamation either had secretly issued or was about to issue and thus filed this action at 1:12 a.m. on March 15. The Court granted the five named Plaintiffs’ request for a temporary restraining order that same morning, which enjoined their removal, and it scheduled an emergency hearing for 5:00 p.m. that day to consider the Motion to Certify a Class.
Just an hour before the hearing, the Proclamation was made public. Less than two hours after the Proclamation was published, and while the emergency hearing was ongoing, the Government flew 252 Venezuelan men, including 137 putative class members, out of the United States.
The Trump administration thought if it violated due process rights fast enough, no one would be able to do anything but offer up a resigned shrug. Boasberg has refused to do this. He saw this happening and moved on it. The administration efforts to stay ahead of easily foreseeable adverse rulings may now result in a lot of deportations being undone.
As for the government’s last-ditch argument that the Court has no jurisdiction because the hastily deported people are no longer in the custody of US federal officers, the court has this to say:
In a statement to the U.N. Office, El Salvador expressly disclaimed responsibility for the detainees, contending instead that “the jurisdiction and legal responsibility for these persons l[ay] exclusively with the competent foreign authorities.”
So, it’s no use pretending the people denied their due process rights are still not under the control of the United States government. On top of that, there’s plenty of documentation on the public record that shows the Trump administration not only asked El Salvador’s government to accept whatever people it chose to dump into CECOT, but paid it nearly $50 million to offset whatever expenses El Salvador might rack up while violating the human rights of Trump’s deportees.
And the invocation of the Alien Enemies Act doesn’t change anything. Only under very narrow circumstances can due process rights be nullified. None of that is happening here. To pretend the government’s vague assertions about foreign powers and threats to national security are all that’s needed to negate the constitutional rights extended to anyone who happens to reside in this country, no matter how temporarily.
The remedy must thus adapt to meet the injury that has occurred. The Court finds that the only remedy that would give effect to its granting of Plaintiffs’ Motion would be to order the Government to undo the effects of their unlawful removal by facilitating a meaningful opportunity to contest their designation and the Proclamation’s validity. Otherwise, a finding of unlawful removal would be meaningless for Plaintiffs, who have already been sent back to Venezuela against their wishes and without due process. Expedited removal cannot be allowed to render this relief toothless. If secretly spiriting individuals to another country were enough to neuter the Great Writ, then “the Government could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action.”
Those are the words of someone who not only knows the law, but respects it. These are words of the Trump administration:
“Once again Judge Boasberg issued an order that has no basis in law and undermines national security,” Abigail Jackson, a White House spokeswoman, said in a statement to NPR.
Amazing. This death cult of an administration is also a murder cult and kidnapping cult. National security interests can still be served while respecting due process rights. It’s not either/or, no matter how many people we murder in international waters. But this initial statement makes it clear the administration will do everything it can to continue violating these rights, no matter what the courts say about the issue.
Last week’s dismissal of the FTC’s antitrust case against Meta—combined with the earlier limited remedies in the Google search case—demonstrates something that should be obvious by now: antitrust is a pathetically weak tool for increasing competition in digital markets.
This isn’t an argument against competition. Competition in digital markets matters, desperately. But antitrust enforcement is slow, cumbersome, and nearly blind to how fast these markets actually move. It takes years to litigate, offers limited effective remedies, and by the time courts rule, the competitive threats have often shifted entirely. The whole apparatus works fine for more slow-moving industries (which have real competition problems!) but consistently fails when applied to more dynamic markets where the landscape changes every few years.
Over the last decade, figures like Lina Khan and Tim Wu have pushed a more aggressive vision of antitrust—variously called “hipster antitrust” or “neo-Brandeisian antitrust”—that promises to ignore these limitations and wield antitrust as a more punitive tool against large companies. The theory goes that punishing big companies will magically result in greater competition, a kind of antitrust trickle-down economics. The results of the Meta and Google cases suggest that if we want more competition in the digital space, there are much better policy levers than antitrust.
Both cases—originally brought by Trump’s AG Bill Barr as part of a 2020 campaign stunt to show that Trump was “taking on” the hated “Big Tech” were then pursued by the Biden FTC, with amended complaints trying to fix the original weaknesses. But both cases ended up demonstrating the same fundamental problem. Last week’s dismissal of the Meta case was particularly instructive.
As Judge Boasberg noted in his long and thorough opinion, the FTC’s bizarre attempt to define the market Meta was supposedly a monopolist in didn’t pass the laugh test. Notably, the FTC insisted that Meta’s market was just for “personal social networking” among friends and family, in an attempt to avoid the continued growing success of TikTok and YouTube as competitors. Thus, the FTC said the competition for Facebook and Instagram was just the much smaller Snapchat and the barely existing MeWe.
As Boasberg noted, the FTC had to show that Meta continues to have a monopoly in the marketplace to win the case, and the only way the FTC could win that argument was if TikTok and YouTube were excluded from the market definition. But that is laughable:
The FTC contends that Facebook, Instagram, and Snapchat form a distinct market that can be identified by those apps’ unique features. While those apps certainly show some distinct markings, they mostly resemble two other social-media apps that the FTC insists must be excluded: TikTok and YouTube. Their dominant features are identical, people mostly use all four to watch unconnected content that they can send in direct messages, industry participants agree that the apps belong in the same competitive market, they use similar resources and technologies, and they charge the same price to the same customers.
Even when considering only qualitative evidence, the Court finds that Meta’s apps are reasonably interchangeable with TikTok and YouTube…. Taking all the evidence together, it shows that personal social networking is not a separate product market. Instead, Meta competes in the market for social media, and that market includes — at minimum — TikTok and YouTube as well.
The opinion repeatedly demonstrates that Meta was terrified of the growing success of TikTok (and, to a lesser extent, YouTube) and kept adjusting its products (hello “Reels”) to be more like those other apps.
The court also demolished the FTC’s claim that Meta was harming consumers by making its products worse. Quite the opposite according to the actual evidence:
So the FTC instead argues that Meta has degraded these apps’ quality. By offering a worse product for the same price, the agency reasons, Meta has imposed the equivalent of a price increase.
The record, however, shows the opposite: Meta’s apps have continuously improved. The company has added scores of new features to Facebook and Instagram, from Stories to Reels to Marketplace…. The Court simply does not find it credible that users would prefer the Facebook and Instagram apps that existed ten years ago to the versions that exist today
The court points to plenty of natural experiments (bans, downtime, etc.) that show that many users consider the Instagram/Facebook Reels effectively interchangeable with TikTok and YouTube Shorts.
The broader problem here is that by the time the case reached trial, the competitive landscape had already shifted dramatically. Meta’s supposed monopoly was being actively challenged by TikTok’s explosive growth, forcing Meta to completely overhaul its products. The FTC’s case depended on freezing the market in time and pretending this competition didn’t exist.
And, really, this all shows how terrible a tool antitrust is to deal with these markets.
The Google case—which the DOJ technically won—suffered from a similar dynamic. Judge Amit Mehta recognized that the market had shifted quite a bit on its own, with Google’s search dominance being challenged by AI tools like ChatGPT. The remedies he imposed came up far short of what the government requested, precisely because the competitive threats were already emerging without court intervention.
This is not to say that antitrust never makes sense or that we don’t need more competitive markets. But the fact that the FTC has been converted, under both administrations, to be more focused on punishing companies, rather than actually pursuing policies that increase competition is a problem.
Tim Wu wrote an angry response to Boasberg’s decision in the NY Times, and in doing so, accidentally revealed the core problem with the neo-Brandeisian approach. When you strip away the legal arguments, it all comes down to vibes:
Does anyone seriously doubt that Meta is the kind of company that antitrust laws were designed to restrain?
That right there gives away the game. If your antitrust case is built on “doesn’t this company feel bad?” you’re going to take shortcuts, ignore inconvenient facts like the existence of TikTok, and then fail in court.
Wu’s piece is instructive because it shows how the FTC arrived at its laughable market definition. He claims Boasberg dismissed the case “in the face of strong evidence to the contrary, not to mention common sense,” but the “common sense” he’s appealing to is just the intuition that Meta seems big and powerful. The actual evidence—the stuff Boasberg spent pages analyzing—showed robust competition forcing Meta to completely overhaul its products.
Wu even complains that recognizing TikTok and YouTube as competitors represents “strained legal thinking” because they’re “adjacent markets.” But the whole point of antitrust law is to stop companies from abusing monopoly power to prevent competition. Showing that competition exists and is forcing the alleged monopolist to adapt its products is not a technicality—it’s proof that the market is working.
There are ways to bring good antitrust cases, but they have to involve showing that there’s an actual monopoly under the law, that the monopoly is being abused by the monopolist in order to limit further competition and/or make products worse for consumers.
When you start from “Meta feels like a monopoly” and work backward, you end up failing to make the case the law actually requires, and that doesn’t actually help enable a more competitive marketplace. The FTC was so focused on the vibes and how Meta looked bad that it failed to make the actual case it needed to make.
If we want actual competition in the marketplace, maybe stop focusing so much on antitrust laws and look at the issues that keep holding back actual competition: clean up broken copyright and patent laws that restrict competition, fix the CFAA which has been used repeatedly by big tech companies to stifle competition, and stop trying to pass laws that would make it impossible for smaller startups to exist because of the compliance costs.
Those would actually enable much greater competition, but no one wants to do the hard work on those to ensure actual competition exists.
We’ve seen some pretty ridiculous attempts by government officials to intimidate judges over the years, but the Department of Justice’s new misconduct complaint against D.C. Chief Judge James Boasberg might take the cake for sheer absurdity. As Steve Vladeck breaks down in exhaustive detail, the DOJ is essentially arguing that a federal judge committed “misconduct” by privately expressing concerns to the Chief Justice that the Trump administration might not comply with court orders.
Spoiler alert: those concerns turned out to be entirely justified.
The complaint centers on comments Boasberg allegedly made at a March Judicial Conference meeting about “concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis.” And these concerns were not even Boasberg’s own personal feelings. He was expressing what he was hearing from other judges on the court where he sits.
As Vladeck methodically demonstrates, DOJ’s theory collapses under scrutiny for four separate reasons.
First, the comments weren’t public. They were made at a private meeting of the Judicial Conference, and only became known because someone leaked a confidential memo summarizing the meeting. Vladeck nails why this matters:
Suffice it to say, DOJ never explains how a private comment at a private meeting that was made public only because a confidential memorandum memorializing the meeting was leaked could possibly violate Canon 3(A)(6). The best it can offer is the claim that, because the memorandum has become public, the comments they memorialize were illegitimate. But that’s true of anything a federal judge says in private. On that reading, a federal judge would violate Canon 3(A)(6) simply by discussing a pending case with a clerk or colleague—because that discussion might one day be made public.
Under DOJ’s logic, any private conversation a judge has could retroactively become “misconduct” if someone decides to leak it later. That’s not how judicial ethics work. That’s not how anything works.
Second, as noted above, Boasberg wasn’t pushing his own agenda—he was literally doing his job. As the D.C. Circuit’s district judge representative on the Judicial Conference, part of his role is to communicate his colleagues’ concerns to the Chief Justice. Vladeck notes that these appear to be “radical mischaracterizations of what actually happened,” and that Boasberg was simply “relaying concerns raised by his colleagues to the Chief Justice, almost certainly in response to a specific prompt that he do so.”
Third, and this is the kicker, Boasberg’s concerns were completely justified. Despite DOJ’s claim that “the Trump Administration has complied with every court order,” Vladeck points out that this is “quite obviously not true.”
Indeed, we all talked about how they were directly flouting judicial orders, and Boasberg himself wrote an opinion back in April (after he’d raised these concerns) finding probable cause that DOJ lawyers and government officials acted in “willful disregard” of a temporary restraining order when human trafficked Venezuelans to a Salvadoran gulag.
Let’s be clear about the timeline: a judge expressed valid private concerns that the government might not follow court orders, the government proceeded to violate court orders (including one from this very judge!), and now DOJ is claiming the judge committed misconduct for… being right?
And fourth, even if none of the above were true, there’s still no violation here. Boasberg didn’t say he was predisposed to rule against the government in specific cases. He didn’t prejudge any particular policies. He raised institutional concerns about governmental compliance with court orders—which is exactly the kind of thing members of the Judicial Conference should be discussing.
Vladeck identifies the real audiences for this charade. It’s not actually about disciplining Boasberg—the complaint is “laughably preposterous” and will almost certainly be dismissed. Instead, it’s about sending a message:
The first audience is other district judges—including those perhaps without the reputation and stature (and backbone) of Chief Judge Boasberg. Even frivolous judicial misconduct complaints come at a cost—especially when they’re filed not by private litigants, but by the U.S. Department of Justice. If the Chief Judge of the D.C. district court can come in for such treatment for doing nothing more than conveying his colleagues’ concerns to the Chief Justice at a meeting at which that’s his job, perhaps other judges will think twice the next time they want to publicly reprimand the government or otherwise say anything that could be construed in any way as reflecting comparable concerns about the behavior of the current Department of Justice.
This is straight-up judicial intimidation. File a bogus complaint against one prominent judge to cow the rest into silence. Remember that this is all happening against the backdrop of the Trump admin attacking a bunch of judges for daring to try to uphold the Constitution against a government determined to tear down the Constitution.
The second audience, according to Vladeck, is Trump supporters, who get fed misleading headlines about “biased judges” without the context showing how legally frivolous this complaint actually is. Indeed, Vladeck also calls out that this story “leaked” to MAGA mouthpiece, The Federalist, which clearly was given access to the confidential memo that an attendee had written up summarizing what was said that spurred this complaint… but did not publish it, suggesting that if we saw the full memo, in context, it would be clear how it was being misrepresented here:
Indeed, the fact that The Federalist appears to have obtained that confidential memo but has not published it seems to strongly suggest, among other things, that the memo is not only entirely benign, but that it may provide even further context for Boasberg’s remarks.
Also notable: The Federalist entirely avoided giving the (kinda important!) context that Boasberg was sharing the views he heard from other judges, rather than just expressing his own opinion.
Perhaps most galling is Attorney General Bondi’s tweet claiming Boasberg’s comments “have undermined the integrity of the judiciary, and we will not stand for that.”
The lack of self-awareness here quite something. What’s actually undermining judicial integrity is the Department of Justice filing baseless misconduct complaints against judges who dare to hold the government accountable when it violates court orders.
As Vladeck puts it:
In fact, the only thing undermining the integrity of the judiciary here is the Department of Justice filing a patently baseless and profoundly misleading misconduct complaint against a federal judge who did nothing more than diligently discharge his duties.
Federal judges aren’t supposed to be government cheerleaders. Part of their job is identifying systemic problems with how the legal system is functioning—including when the government isn’t complying with their orders. Encouraging judges to stay silent about such issues doesn’t strengthen judicial integrity; it eviscerates it.
The separation of powers isn’t supposed to be a one-way street where judges quietly rubber-stamp whatever the government wants to do. It’s supposed to involve actual checks and balances, which sometimes means judges pointing out when the other branches are acting lawlessly.
You know, that whole constitutional framework thing we’re supposed to have.
This complaint will almost certainly fail. But the damage is already done. Other judges are watching, and some might think twice before calling out government misbehavior in the future.
That’s not how a functioning democracy is supposed to work. But then again, intimidating judges into silence probably isn’t the behavior of an administration that’s particularly committed to democratic norms in the first place.
Generally speaking, if a judge begins an order — in a case where hundreds of men were illegally renditioned to a Salvadoran concentration camp directly against that judge’s orders — by talking about Franz Kafka’s The Trial, you’d think that the judge is going to go hard against the government.
Instead, Judge James Boasberg delivers quite a frustrating ruling: after eloquently explaining why the government’s actions mirror Kafka’s nightmarish bureaucracy, he proceeds to accept the Trump administration’s transparently ridiculous claim that they have no control over people they literally paid El Salvador to imprison.
He does try to concoct a workaround — arguing that while the prisoners can’t file habeas because they’re supposedly not in US custody, their due process rights were violated, so the remedy is to somehow restore their ability to file the habeas petitions they can’t file. But as we’ll see, this “solution” seems quite toothless.
The ruling starts with this somewhat incredible paragraph:
One morning, Kafka’s Josef K. awakens to encounter two strange men outside his room. As he gets his bearings, he realizes that he is under arrest. When he asks the strangers why, he receives no answer. “We weren’t sent to tell you that,” one says. “Proceedings are under way and you’ll learn everything in due course.” Franz Kafka, The Trial 5 (Breon Mitchell trans., Schocken Books Inc. 1998). Bewildered by these men and distressed by their message, K. tries to comfort himself that he lives in “a state governed by law,” one where “all statutes [are] in force.” Id. at 6. He therefore demands again, “How can I be under arrest? And in this manner?” “Now there you go again,” the guard replies. “We don’t answer such questions.” Undeterred, K. offers his “papers” and demands their arrest warrant. “Good heavens!” the man scolds. “There’s been no mistake.” “[O]ur department,” he assures K., is only “attracted by guilt”; it “doesn’t seek [it] out . . . . That’s the Law.” Id. at 8–9. “I don’t know that law,” K. responds. “You’ll feel it eventually,” the guard says. Id. at 9.
And then he makes the direct tie-in from that story to what’s actually happening:
Such was the situation into which Frengel Reyes Mota, Andry Jose Hernandez Romero, and scores of other Venezuelan noncitizens say they were plunged on March 15, 2025. In the early morning hours, Venezuelans held by the Department of Homeland Security at El Valle Detention Facility in Texas were awakened from their cells, taken to a separate room, shackled, and informed that they were being transferred…. To where? That they were not told…. When asked, some guards reportedly laughed and said that they did not know; others told the detainees, incorrectly, that they were being transferred to another immigration facility or to Mexico or Venezuela.
Before long, Reyes Mota, Hernandez Romero, and the other detainees were shuttled onto buses, driven to a nearby airport, and loaded onto planes…. As the planes waited on the tarmac, many passengers aboard reportedly began to panic and beg officials for more information, but none was provided…. The planes eventually departed that evening and, after a stop in Honduras, landed in El Salvador…. Upon their arrival, the detainees were transferred into a Salvadoran mega-prison known as the Center for Terrorism Confinement (CECOT).
And he reminds everyone that the government literally ignored his pretty clear order to not take these men out of the country:
This Court, at a swiftly convened hearing on March 15, ordered the Government not to relinquish custody of the men,but that mandate was ignored. Such defiance is currently the subject of the Court’s contempt inquiry.
So far, so good. The judge has laid out a perfect analogy for what happened and documented the government’s contempt of his direct orders. Then he completely undermines himself:
While it is a close question,the current record does not support Plaintiffs’ assertion that they are in the constructive custody of the United States. Even crediting the public statements characterizing the arrangement as outsourcing the U.S. prison system and acknowledging the President’s unofficial assertion of his power to request a release, such comments cannot overcome a sworn declaration from a knowledgeable government official attesting that the CECOT Class’s ongoing detention is a question of Salvadoran law
This is where the ruling goes completely off the rails. Judge Boasberg claims that further details that the DOJ filed under seal about the nature of the deal between the US and El Salvador suggest that the deal is basically “we ship ‘em to you, you do whatever the fuck you want with them,” and thus they shouldn’t be seen as being in “constructive custody” of the US any more.
This is obvious bullshit, and the judge knows it. Because there’s almost no one in the world who thinks that if the US government called up President Bukele and said “yo, we need that person back” that Bukele wouldn’t do it. Hell, we know this because the US already did that. As an article the NY Times wrote back in April revealed (buried so deep down that I haven’t seen much commentary on it) El Salvador has already sent back at least eight people that were incorrectly sent there:
In Washington, the Trump administration was working to address Mr. Bukele’s confusion about whom the United States had sent him. Eight women who had been mistakenly sent were swiftly flown back.
So when the US wants someone back from CECOT, they get them back. But somehow that information isn’t at play here.
Judge Boasberg does admit that it’s entirely possible the government is lying to him, but basically says his hands are tied by the Supreme Court:
This conclusion, to be sure, presumes the truthfulness and reliability of the Kozak Declaration, which is rendered more difficult given the Government’s troubling conduct throughout this case. The Court nonetheless follows the lead of the Supreme Court, the D.C. Circuit, and other courts within this district in taking Kozak at his word. In Munaf, the Supreme Court instructed federal district courts not to “second-guess” assessments of the political branches as to the nature of detention under a foreign sovereign. See 553 U.S. at 702. Applying that principle, our Circuit has found governmental submissions similar to the Kozak Declaration to be conclusive on the question whether ongoing detention is “on behalf of the United States.”
Seems bad!
He also admits that the Trump admin’s claims in this case aren’t nearly as detailed or believable as in the precedents he feels bound by, but basically says the plaintiffs (who, again, are mostly disappeared in a concentration camp no one gets released from) really need to provide more proof that the US government has some say in their detention, even as he admits it contradicts other statements that [checks notes]… the US government is making.
Plaintiffs, however, have unearthed no comparably reliable evidence to rebut the Kozak Declaration. The Court must therefore at this point accept the Government’s representations as to the nature of the CECOT Plaintiffs’ ongoing detention,despite their incongruity with multiple public statementsmade by both Salvadoran and U.S. officials.
Great.
The judge then proceeds to explain why this exact scenario — shipping prisoners beyond the reach of habeas corpus — was one of the grievances that led to American independence. But apparently that’s just an interesting historical footnote now:
The Court is nonetheless mindful of the possibility, raised by Plaintiffs, that the Government has adopted and presented its arrangement with El Salvador as a “ruse — and a fraud on the court — designed to maintain control over the detainees beyond the reach of the writ.” …. Our legal tradition is wholly incompatible with the establishment of a network of overseas prisons, shielded from the Great Writ by the facade of foreign control, to which the Government routinely exports detainees without due process — a legal no man’s land.Indeed, the Habeas Corpus Act of 1679 generally prohibited detention “beyond the seas” to places where the writ did not run, … and such abuses partly animated this nation’s War for Independence. See Declaration of Independence para. 21 (U.S. 1776) (listing amongst grievances against the King that he “transport[ed]” colonists “beyond Seas to be tried for pretended offences”).Were such a scheme to subsequently be made apparent to the Court, it would follow the Supreme Court’s instruction to “take such action as will defeat attempts to wrongfully deprive parties entitled to sue in Federal courts [for] the protection of their rights in those tribunals.”
It feels like he’s begging for evidence that the Justice Department is lying to him and reminds the government that “any official who makes knowingly false statements in a sworn declaration subjects himself to perjury prosecution.”
Having accepted the government’s lie about custody, the judge then concocts a workaround that’s somehow even more absurd: since the men’s due process rights were violated, the equitable remedy is… to have the Trump admin somehow restore their ability to file habeas petitions they can’t file because they’re supposedly not in US custody.
That principle permits Plaintiffs to proceed here. Just like litigants have since the beginning of our legal tradition, they may invoke this Court’s equitable authority to restrain the Government from infringing upon constitutional protections. They need not do so in habeas, nor are they obligated to identify a cause of action conferring that right.
The judge does conclude the due process violation is clear, citing recent Supreme Court holdings in this and related cases:
In light of those Supreme Court holdings, this Court ultimately agrees with the CECOT Plaintiffs that they are likely to succeed on the merits of their due-process claim. Defendants plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States — a right that need not itself be vindicated through a habeas petition. Perhaps the President lawfully invoked the Alien Enemies Act. Perhaps, moreover, Defendants are correct that Plaintiffs are gang members.But — and this is the critical point — there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government’s say-so.Defendants instead spirited away planeloads of people before any such challenge could be made. And now, significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations.
So what’s the remedy for this constitutional violation? The judge orders the government to “facilitate” the prisoners’ ability to seek habeas relief — the same meaningless directive that’s already been ignored (if not mocked) in similar cases:
Because the other preliminary-injunction factors also support the CECOT Plaintiffs, the Court concludes that their Class is entitled to preliminary relief. In short,the Government must facilitate the Class’s ability to seek habeas reliefto contest their removal under the Act. Exactly what such facilitation must entail will be determined in future proceedings. Although the Court is mindful that such a remedy may implicate sensitive diplomatic or national-security concerns within the exclusive province of the Executive Branch, it also has a constitutional duty to provide a remedy that will “make good the wrong done.”
Let’s recap this judicial pretzel: The prisoners can’t file habeas because they’re supposedly not in US custody. But their due process rights were violated by being denied the chance to file habeas before removal. So the remedy is to restore their ability to file habeas… which they still can’t do because they’re not in US custody.
As is now clear, CECOT Class members were entitled to notice and an opportunity to challenge their removability pursuant to the Proclamation. That process — which was improperly withheld — must now be afforded to them. Put differently, Plaintiffs’ ability to bring habeas challenges to their removal must be restored. In light of the well-established law of remedies and the example that has already been set by all three levels of the federal judiciary, then,Defendants must facilitate Plaintiffs’ ability to proceed through habeasand ensure that their cases are handled as they would have been if the Government had not provided constitutionally inadequate process.
The judge acknowledges what’s really at stake here:
The Court determines that such a remedy balances Defendants’ distinct role in conducting foreign affairs with the grave need to right their legal wrongs;absent this relief, the Government could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action.See Abrego Garcia, 145 S. Ct. at 1019 (statement of Sotomayor, J.).
Well, duh. That’s the whole fucking concern. And, yes, the government already did snatch people off the street to send to a foreign country, effectively foreclosing any corrective course of action.
So what happens now? The judge punts, asking the government to submit a “plan” for facilitating something they’ve already shown zero interest in facilitating:
Mindful of national-security and foreign-policy concerns,the Court will not — at least yet — order the Government to take any specific steps. It will instead allow Defendants to submit proposals regarding the appropriate actions that would “allow [Plaintiffs] to actually seek habeas relief.”
We all know how this ends: the DOJ will file some theatrical bullshit claiming they’d love to help but gosh, foreign sovereignty and all that. The judge will wring his hands some more. And hundreds of men will continue rotting in CECOT because everyone involved would rather play legal theater than acknowledge the obvious solution: if you shipped them there, you can damn well get them back.
Perhaps Judge Boasberg will surprise us and come up with something that has actual teeth, but it feels long past the time for that.
Meanwhile, the men who were disappeared into this Kafkaesque nightmare remain trapped in a foreign prison, casualties of a legal system more interested in procedural niceties than actual justice. The judge opened with Kafka, which would lead you to believe his goal is to not be just another cog in a Kafkaesque machine, but the authority who puts an end to the nonsense. Instead, we just keep getting another round of bureaucratic bullshit.
If you’re going to plan military operations over Signal, you probably shouldn’t accidentally add a journalist to the chat. And if you’re going to do government business over Signal specifically to avoid federal record-keeping laws, you definitely shouldn’t get caught doing it. Yet here we are: A day after we learned that top Trump administration officials — including Secretary of Defense Pete Hegseth, VP JD Vance, Secretary of State Marco Rubio, CIA Director John Ratcliffe, and Director of National Intelligence Tulsi Gabbard — were coordinating Yemen bombing plans over an unsecured Signal group chat (with bonus journalist Jeffrey Goldberg accidentally included), the first lawsuit has arrived.
The watchdog group American Oversight’s filing makes the obvious point: Using Signal to dodge the Federal Records Act’s requirements is, well, illegal. The law is quite clear about this:
To comply with the statute, the agency head “shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.”
Each agency head is further required to establish a records management program providing “effective controls over the creation and over the maintenance and use of records,” id. § 3102(1), and to “establish safeguards against the removal or loss of records the head of [the] agency determines to be necessary and required by regulations of the Archivist,”
When records are handled in a manner that contravenes the FRA, or a parallel agency record-keeping policy, the FRA obligates the agency head to “notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency . . . .”
While there are multiple layers of problems here — from the careless handling of national security information to the sloppy inclusion of an outside journalist to the fundamental question of bombing people halfway across the world — the lawsuit zeros in on what appears to be a deliberate attempt to dodge accountability. Rather than using secure government systems that properly preserve records as required by law, this administration chose to conduct war planning over Signal — a choice that seems designed specifically to keep these discussions hidden from legally mandated record-keeping requirements.
Signal is not an authorized system for preserving federal records and does not comply with recordkeeping requirements under the FRA or NARA guidance
Messages in the Signal chat about official government actions, including, but not limited to, national security deliberations, are federal records and must be preserved in accordance with federal statutes, and agency directives, rules, and regulations.
This incident didn’t come as a complete surprise to American Oversight. The watchdog group has been trying to get access to administration Signal messages since January, having filed multiple FOIA requests specifically seeking both email and Signal discussions between various agencies and the White House. Those requests remain pending, but this accidental revelation suggests they were right to be concerned.
On January 28, 2025, American Oversight submitted a FOIA request to DoD (bearing American Oversight internal tracking number DOD-25-0183) seeking all records reflecting communications, expressly including Signal messages, between DoD officials, including Pete Hegseth, and anyone in the White House Office, containing one or more specified key terms, from January 20, 2025, through January 27, 2025. On January 28, 2025, DoD acknowledged the request and assigned it tacking number 25-F-2084. Upon information and belief, American Oversight’s request remains pending
And then there’s this simple fact: this Signal group chat only came to light through sheer incompetence. How many other potentially illegal chat groups exist where officials remembered to double-check their participant lists? As the filing notes:
Defendants’ use of Signal, as demonstrated by this particular example, presents a substantial risk that they have used and continue to use Signal in other contexts, thereby creating records that are subject to the FRA and/or the FOIA, but are not being preserved as required by those statutes.
Defendants’ use of Signal, as demonstrated by this particular example, strongly suggests that they have used Signal to communicate about matters that may otherwise have been discussed via email, thereby avoiding creating records responsive to American Oversight’s FOIA requests for emails.
Beyond just preserving these specific Signal messages, the lawsuit aims to stop this administration’s apparent pattern of using non-secure messaging apps to dodge their record-keeping obligations. Though given their demonstrated technical expertise so far, perhaps we should be grateful they’re not trying to conduct military operations via ExTwitter DMs.
Though, if they were doing that, perhaps we would have had Elon Musk leaking the messages himself.
Oh, and this morning the case got assigned to Judge Boasberg, who is already dealing with this administration’s nonsense regarding the rendition flights to El Salvador. So that should be fun.
In Mike’s thorough post yesterday on the topic of the Trump administration’s naked contempt for judicial oversight, the main theme and takeaway from it was a simple one: this authoritarian regime would much rather waste everyone’s time trying to play procedural and semantic games with the courts than actually participate in honest deliberations with them. This is no small thing and it portends so much more about how this adminisration is going to behave across the government. Trump and his complicit cabinet, some members of which will inevitably be hung out to dry eventually when things go wrong enough, have no time for process. No time for rules. Or truth. Or honest dialogue. There is only the end goal that has been demanded by the mad king. Any norms or rules that get in the way of the goal are to be routed around in as contemptious a manner possible.
So it goes in the ongoing case before federal judge James Boasberg. This is the case in which the court ordered what the administration calls “deportations” — though since they are without any form of due process it’s more accurate to call them human trafficking — conducted as a result of Trump’s invoking the Alien Enemies Act of 1798. Boasberg issued verbal and written orders that the rendition flights be stopped and that any planes that hadn’t arrived at their destination, including those in the air, be returned until Boasberg could evaluate the legitimacy of the use of the centuries old law.
But some of the planes didn’t stop, and not all in the air were ordered to turn around. With no due process, there is no assurance that the government’s claim as to who the people on these planes are is accurate. Even as the judge demanded information on the timelines at play to determine if his orders were violated or ignored, administration officials as high up as the Secretary of State Marco Rubio jeered gleefully on social media sites with retweets and the like. Boasberg, a decidedly conservative judge, was falsely mocked as a “radical left lunatic.”
US District Judge James Boasberg vowed on Friday to find out whether officials in the Trump administration violated his orders temporarily blocking the use of an 1798 law for deportations by refusing to turn two flights around last weekend.
“I will get to the bottom of whether they violated my order – who ordered this and what the consequences will be,” Boasberg said near the end of an hourlong hearing over whether he should lift the pair of orders he issued last Saturday.
Rather than participate with a coequal branch of government, however, Marco Rubio, Kristi Noem, and Pam Bondi have instead decided to play more childish games. Transparently childish, too, by any honest reading of their response. As had been speculated in previous news on the case, the government has decided to attempt to invoke state secrets privilege over the information the court has demanded. Which, again, is solely information about the timing of the order for the takeoff and the eventual landing of deportation flights that the court had temporarily ordered to be ceased. And because this administration can’t help itself, it did so with the vocabulary of a teenager refusing to go to bed on time.
The Court has all of the facts it needs to address the compliance issues before it,” Attorney General Pam Bondi and other top DOJ officials wrote in a filing to US District Judge James Boasberg. “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.”
“The information sought by the Court is subject to the state secrets privilege because disclosure would pose reasonable danger to national security and foreign affairs,” the officials wrote in the 10-page filing.
Among the questions Boasberg wanted the Justice Department to answer are ones concerning the exact timing of when the two planes took off from US soil and left US airspace that day, as well as the specific times individuals deported under Trump’s proclamation were transferred out of US custody that day.
Since the CNN post couldn’t be bothered to be so direct, allow me to: the Trump administration is full of shit. They know they’re full of shit. They know we know they’re full of shit. But they also are more than happy to wield what they think is a power card, believing they’ve found some procedural loophole. We just make this claim, they seem to think, and it lets us do whatever we want!
But that isn’t how asserting this privilege works at all. The judge will now have the opportunity to review whether the government’s assertion is warranted.
He told the government last week that it could submit the information under seal or invoke the privilege, though he said if DOJ decides to shield the information, he “is obligated to ‘determine whether the circumstances are appropriate for the claim of privilege.’”
The Trump administration appears to want it both ways. It wants to claim it has not violated any court order while also blocking the information to validate that it had not. There is nothing about what the government previously falsely called routine deportations that should have any play in state secrets. When did the planes take off, when did they land, and who did they contain? If those are state secrets, then anything can be a state secret.
And that’s the danger here. It’s the reason the administration must lose this game. If any judicial oversight can be routed around simply by putting a few complicit signatures on a piece of paper that says “state secrets,” then there simply is no judicial oversight.
And, in that negation of a coequal branch of government, you have the end of our Republic.
I think lots of people know the kind of person who thinks they’re more clever than they really are. The kind of person who thinks that they can outwit the system by playing stupid games. The kind of person who thinks that this kind of beating the system is because they’re smart. This kind of person is usually viewed as a dipshit. Donald Trump’s DOJ seems to be, as a group, acting like just that kind of dipshit.
Like that overconfident student who thinks they’ve discovered one weird trick to beat the system, the DOJ keeps playing increasingly transparent games in court — making patently ridiculous arguments while acting shocked and offended when judges see right through their obvious nonsense.
It is a form of contempt. Not necessarily in the legal sense. But it is a kind of obvious contempt for the very systems and institutions of our judicial system that they are supposed to be protecting as a part of the constitutional order. And while judges are often willing to give great leeway to bad actors in their courtroom, at some point the outright contempt for the court can turn into something judges will start calling out.
I’m reminded of a college classmate who exemplified this mindset perfectly. He’d spend countless hours finding elaborate ways to game every assignment and test, devising increasingly convoluted schemes to avoid doing the actual work. The irony was that his schemes typically required far more effort than simply completing the assignments properly would have taken. But he sure was proud of the ways he believed he was beating the system.
That same misguided energy now permeates Trump’s DOJ (indeed, I just looked up on LinkedIn if that classmate might now work for the DOJ — thankfully he’s not there). These officials pour tremendous effort into crafting obviously laughable legal arguments, filing misleading declarations, and playing semantic games with court orders — all while seemingly convinced of their own clever brilliance. Just like my former classmate, they’re expending more energy trying to game the system than it would take to actually fulfill their constitutional duties and serve the American people. The result is a particularly toxic form of institutional contempt — not just disregard for the courts, but a sort of smirking certainty that they’re somehow outsmarting the entire judicial system.
It is nearly impossible to keep track of all of the various lawsuits that have been filed against the plethora of illegal actions taken by the Trump administration in the last two months since inauguration (though kudos to folks like Just Security who have been tracking them as best as they can).
The Boasberg case represents a critical escalation in this pattern of contempt. While legal scholars debate what precisely constitutes a constitutional crisis, Corbin Barthold makes a compelling case that we’ve now crossed that threshold. When a federal judge explicitly orders planes carrying deportees to return and the administration simply ignores that order, we’re witnessing something qualitatively different from their usual games.
THE LONG-AWAITED CONSTITUTIONAL CRISIS has now arrived. It is time for a court to say so.
On Saturday night, James Boasberg, a federal judge in the District of Columbia, issued a pair of emergency orders. The government, he had just been told at a hastily convened hearing, was removing from the country, without due process, more than a hundred alleged gang members. The planes, he learned, were already in the air. To justify this stunning move, President Trump had issued a proclamation invoking the Alien Enemies Act of 1798.
At around 6:45 p.m., Boasberg orally ordered the planes turned around. “Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” he ruled from the bench. “This is something that you need to make sure is complied with immediately.”
At 7:26 p.m., he issued a briefwritten orderbarring the government from relying on the Alien Enemies Act to remove noncitizens from the country.
The government ignored both orders.
This outright defiance marks a subtle, but notable, departure from the administration’s playbook the past few months. Until now, they’ve preferred more smirking forms of contempt — slow-walking court orders, playing word games with compliance, or burying judges in misleading declarations. But each of these smaller acts of contempt has apparently emboldened them toward more brazen defiance.
A second administration official said Trump was not defying the judge whose ruling came too late for the planes to change course: “Very important that people understand we are not actively defying court orders.”
This argument, that the order came too late, is nonsense. But it’s notable how the administration is trying to insist it’s actually obeying orders in court, while doing wink, wink, nod, nod stuff out of court.
The administration’s attempts to characterize this as a routine “deportation” matter represent perhaps their most cynical wordplay yet (and one the media should stop repeating, though that’s a different issue). Deportation is a legal process with established due process rights. What happened here was something far darker: the US government engaging in what amounts to human trafficking, shipping people to El Salvador as forced labor without any due process. The mask slipped entirely when El Salvador’s President tweeted “Oopsie… too late” in response to Judge Boasberg’s order — a tweet that Secretary of State Marco Rubio and Elon Musk both found amusing enough to amplify:
The full scope of what’s happening deserves to be called out directly. Start with the legal sleight-of-hand: The administration has resurrected the Alien Enemies Act, a widely disparaged authoritarian relic that only applies during “a declared war” or “invasion” — neither of which exists. They’re wielding this zombie legislation to deny basic due process rights to people on American soil, shipping them to El Salvador (not even their country of origin) to become literal slave labor — all funded by US taxpayers.
The contempt deepens with their public justification. Without due process requirements, they don’t actually have to prove their claims that these people are gang members. And they can’t — because the claims are false for many of those shipped out. Reports show that many of the deportees have no gang connections at all. Any competent law enforcement official would recognize these allegations as nonsense.
But the most chilling display comes in their response to judicial oversight: when a federal judge attempts to restore basic due process rights, the administration not only ignores his order, but the Secretary of State publicly mocks it while coordinating with their partner in human trafficking. This isn’t just contempt of court — it’s contempt for the entire concept of legal constraints on executive power.
The administration’s response to Judge Boasberg perfectly encapsulates their broader strategy: when the facts aren’t on your side, attack the judge. Their characterization of Boasberg as a “radical left lunatic partisan” would be merely laughable if it weren’t so deliberately misleading. This is the same conservative judge who repeatedly ruled in Trump’s favor in other cases — ordering Hillary Clinton’s emails released, blocking the release of Trump’s tax returns, and limiting disclosures from both the Mueller investigation and the classified documents grand jury.
The contempt here operates on multiple levels: there’s the surface-level dishonesty of painting a conservative judge as a radical leftist, but more insidiously, there’s the implicit message that any judge who dares enforce the law against Trump must be acting from partisan motives. This fits a broader pattern where the administration’s lawyers aren’t just playing games with legal arguments — they’re actively working to undermine the legitimacy of judicial oversight itself.
The Boasberg case may be the most brazen example, but it’s far from isolated. Across multiple courts, judges are increasingly witnessing this administration’s attempts to treat the judicial system like a game they can cleverly exploit. Their contempt generally takes three forms, each more concerning than the last:
First, there’s the malicious compliance playbook — taking court orders so literally they become absurd. The Social Security Administration exemplifies this approach. When Judge Ellen Hollander blocked DOGE from accessing records, interim SSA head Lee Dudek responded by threatening to shut down the entire Social Security system, claiming his entire IT staff were somehow “DOGE affiliates.” This led to an increasingly furious series of clarifications from the judge, culminating in her observation that either Dudek was lying or the DOJ lawyers were.
Second, there’s the strategy of procedural manipulation — exploiting court customs and courtesy to gain tactical advantages. Take the EPA case, where officials used procedural games to try to circumvent judicial oversight. They asked for a routine 24-hour extension on a hearing (which opposing counsel typically grant as a professional courtesy), then used that delay to sneak in actions that would have been prevented by the pending TRO:
Third, we’re seeing increasingly more open defiance of court orders, coupled with attempts to delegitimize any judge who rules against them. The Perkins Coie case perfectly demonstrates this escalation. When Judge Beryl Howell issued a TRO blocking an obviously unconstitutional executive order targeting the law firm for representing Democratic interests, Attorney General Pam Bondi and OMB Director Russell Vought responded with explicit defiance:
The Executive Branch’s position is that Executive Order 14230 is permissible, and that the Court’s order was erroneous. The government reserves the right to take all necessary and legal actions in response to the “dishonest and dangerous” conduct of Perkins Coie LLP, as set forth in Executive Order 14230.
At the same time, the DOJ is trying to disqualify Judge Howell for… “hostility” towards the President, again setting up the idea that any judicial action holding them to account is driven by bias, rather than an actual respect for the Constitution.
The pattern of contempt continues across other cases, each fitting into these three categories of increasingly brazen defiance:
More malicious compliance games appear in the DOGE leadership saga, where pretend DOGE boss Amy Gleason filed a declaration claiming to run the agency even as Trump himself said in his address to Congress that Elon Musk runs it. When called on this discrepancy, Gleason’s response dripped with technically-accurate-but-misleading wordplay: “Elon Musk does not work at USDS. I do not report to him, and he does not report to me. To my knowledge, he is a Senior Advisor to the White House.” The contempt deepened when it emerged that Gleason was simultaneously appointed as an HHS consultant a week after being named DOGE head.
The EPA case shows how procedural games escalate to outright dishonesty. EPA boss Lee Zeldin, fixated on a deceptively edited Project Veritas video, illegally froze a Citibank account, and attempted to launch a grand jury investigation. When challenged in court, DOJ lawyers told Judge Tanya Chutkan they couldn’t provide evidence of any criminal violation because “this Court is not in a position to rule upon whether or not this termination was consistent with the contracts.”
Perhaps most telling is the transgender military ban case, where the administration’s contempt for judicial oversight is laid bare. The DOJ keeps insisting to the judge that there is no ban on transgender service members, while Secretary of Defense Pete Hegseth openly declares exactly the opposite:
These examples paint a clear picture of an administration that, like my college classmate from years ago, believes it’s brilliantly outsmarting the system while actually just making itself look increasingly desperate to avoid any accountability. But unlike that student’s academic games, these legal shenanigans carry profound constitutional implications.
What started as wannabe-clever-but-obvious attempts to circumvent court orders has evolved into something far more dangerous: a systematic effort to delegitimize judicial oversight itself. Each time they respond to a court order with malicious compliance, procedural manipulation, or outright defiance, they’re not just showing contempt for individual judges — they’re undermining the very concept of judicial review.
The progression is clear: first came the word games and barely-technically-accurate-but-misleading declarations, then the exploitation of court procedures and customs, and now increasingly open defiance coupled with attempts to paint any judge who enforces the law as politically biased. This is how institutional guardrails get dismantled — not through dramatic confrontation, but through a thousand small acts of contempt that gradually normalize the idea that court orders are merely suggestions to be cleverly evaded.
Trump has already effectively neutered congressional oversight. Now his DOJ appears determined to do the same to the judiciary, treating federal judges like frustrated professors whose rules are just obstacles to be gamed. But unlike my former classmate’s academic adventures, the stakes here aren’t just a passing grade — they’re the continued functioning of our constitutional system of checks and balances.
Judges are starting to catch on, calling out these games with increasing fury. But judicial anger alone won’t be enough. An administration that responds to court orders with winks, nods, and “technically accurate” lies isn’t demonstrating clever lawyering — it’s showing fundamental contempt for constitutional governance itself. Those who shrug this off as mere legal gamesmanship are missing the escalating danger: when government lawyers treat the judicial branch as a system to be cleverly gamed rather than an essential check on power, they’re not just failing their professional obligations. They’re actively participating in the dismantling of judicial review itself.
These officials seem convinced they can keep playing these games forever — or at least until there’s no independent judiciary left to play games with. At some point, judges need to stop writing angry opinions and start issuing contempt charges. And Congress needs to wake the fuck up before it’s too late.
District Court Judge James Boasberg ruled against a journalist on Tuesday who had tried to uncover the classified documents — known as the Panetta Review, because they was completed under orders from former agency Director Leon Panetta — under the Freedom of Information Act (FOIA).
The CIA had used “sound” reasoning in keeping the documents secret, Boasberg decided in a 19-page judgment, preventing it from making its way to the public.
The journalist in question is every secretive agency’s side-thorn, Jason Leopold, who sued the CIA one day after it passed the response deadline. And now this attempt to pry more torture-related documents out of the CIA’s hands has hit a dead end. Judge Boasberg agreed that the overbroad exemptions cited are (unsurprisingly) broad enough to cover the CIA’s assertion that the 40 memos comprising the Panetta Review must be withheld in full.
In the end, requiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent – i.e., inhibiting frank and open communications among agency personnel… Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight only the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials. Protecting the agency’s withholdings in this case is thus consistent with the purposes of this exemption…
The Court, in sum, concludes that the Reviews are properly withheld under Exemption 5’s deliberative-process privilege. It further agrees that they may be withheld in full. While FOIA requires agencies to release “[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), it is clear that there are no such portions here. As the agency attests, and as the preceding discussion makes clear, “[t]he entire documents are pre-decisional, deliberative drafts . . . .” Lutz Decl., ¶ 26. Because “the selection of which facts to include [wa]s part and parcel of the deliberative assessment,” no portions can be severed without exposing the deliberative process itself.
Two interesting things to note about the Panetta Review and this particular case.
First, the CIA seems to be bolstering its FOIA exemption b(5) claims by designating documents as “draft” or “deliberative,” no matter what their actual purpose is. In its supporting declaration filed in this lawsuit, it deployed circular reasoning declaring drafts and deliberative documents are drafts and deliberative documents because they are clearly marked as such by the CIA.
In a court filing last month as part of a Freedom of Information Act lawsuit, a C.I.A. officer said that the review had been stopped abruptly in 2010, had not covered all of the documents the agency had given to the committee and “had not been formally reviewed or relied upon by the C.I.A.’s senior leadership.”
“Each document is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” wrote the C.I.A. officer, Martha M. Lutz.
The CIA’s internal document designations seem to bear some resemblance to the NYPD’s use of its “SECRET” stamp — which is deployed arbitrarily and without oversight to declare certain documents out of the reach of Freedom of Information Law (FOIL) requests. If the CIA feels exemption b(5) gives it the best chance to keep documents out of the hands of journalists like Jason Leopold. it can slap these designations on as many papers as possible and mention its predetermination in FOIA lawsuit declarations.
Second, Boasberg’s refusal to challenge even a single exemption assertion by the CIA isn’t particularly good news, considering his recent appointment to the FISA court. While he has pushed back on government secrecy in the past, he’s also been just as likely to grant its wishes. Considering he’s replacing FISA Judge Reggie Walton — one of the few FISA judges to openly question surveillance tactics and hold the NSA accountable for its abuses — this latest decision seems to indicate his appointment is a downgrade in terms of government accountability.
