This ruling was released in the middle of last month and I really wish I had gotten to it sooner.

Let’s not pretend this will change anything about how this administration full of white Christian nationalists will treat detained migrants. And it definitely won’t change anything about how the American government in general treats anyone who is incarcerated, even if they’re just stuck there awaiting trial.

But it still needs to be seen to be believed. The baseline disregard for detainees health and well-being is nothing new. Neither are the attempts of law enforcement officials to lie their way out of a lawsuit. But the absolute stupidity of the lies and the complete lack of effort of those attempting to shield themselves from accountability goes past the normal ghoulishness we associate with the people doing the imprisoning.

There’s a new level of contempt on display here — one that indicates these people have nothing to fear from the courts because this administration will never consider these acts and the lies used to cover them up as something in need of punishment.

The background of the case is this: Erron Anthony Clarke arrived in the United States in 2018 on a work visa at the request of a US employer. He remained in the country after his visa expired but married a US citizen which put him on track to obtain permanent residency. He picked the wrong time to pursue his legal options, as the New York Times reports:

On Nov. 6, Mr. Clarke applied to become a permanent resident, noting in his application that he had worked in the United States without authorization. As part of his application process, he arrived on Dec. 5 for a fingerprinting appointment at an ICE office in Hauppauge, N.Y. He was pulled over and arrested by immigration enforcement agents shortly after leaving the facility. ICE immediately began proceedings to deport him.

These are the conditions he dealt with while being detained by ICE: he was placed in a 6′ x 6′ cell with eight other people. The cell’s temperature dipped below 30 degrees and occupants were forced to sleep on the floor next to an open toilet. The lights stayed on 24 hours a day. The only reprieve from these conditions came when ICE moved him to other detention centers in order to prevent him from appearing in court.

For 12 hours that night, Mr. Clarke was detained in the tiny room in the federal courthouse. On Dec. 6, he was moved to an ICE detention facility in East Meadow, N.Y., only to be brought back to the squalid conditions three days later.

After petitioning for his release, Mr. Clarke was again transferred on Dec. 10 to an ICE detention facility, this time in Newark. After the agency initially ignored his order to present him for a hearing, he appeared on Dec. 11 before Judge Brown, who ordered him immediately released. Yet Mr. Clarke was held for another night in Newark.

New York federal court judge Gary Brown isn’t happy to have found this sort of thing going on almost literally under his nose in the Islip (New York) courthouse detention facilities. He’s even less happy to have been repeatedly lied to by federal law enforcement officers, whose contempt for the rule of law meant they couldn’t even be bothered to lie semi-competently.

From the decision [PDF] (that I’ll be quoting extensively):

The ICE agent swears that “[b]ased on that investigation, Acting Supervisory Detention and Deportation Officer John T. Keane executed a Form I-200, Warrant for Arrest of Alien.” Yet the documents submitted do not fully support this. The arrest warrant is unsigned and dated December 5, 2025 – the date of Clarke’s biometrics appointment and ensuing arrest – and bears no time notation. That warrant offers check boxes to indicate the basis of probable cause; the only box marked states the warrant emanated from “biometric confirmation of the subject’s identity and a records check of federal databases.” Thus, the warrant was issued after the biometric appointment.

Crucially, in issuing the warrant, the officer did not indicate that removal proceedings had been commenced, even though there are two boxes to so indicate. At the Court’s direction, ICE also supplied a Notice to Appear (NTA) – the charging document that commenced removal proceedings. The NTA is also dated December 5, 2025, again without a timestamp. There remains a serious question as to whether the NTA preceded Clarke’s arrest; if not, then ICE improperly arrested him. ICE’s declaration offers no insight into this question.

Also, the alleged “investigation” apparently occurred on the same day that Clarke’s spouse filed the paperwork to convert him to a full-time resident due to his marriage to her. That means ICE was doing nothing more than running searches on anyone expected to appear at the court in hopes of finding people it could detain and remove. This action had nothing to do with Clarke or his pending legal residence status and everything to do with expelling him from the country before his application for permanent residence was processed.

Then there’s the matter of the holding facilities, which were their own violation of Clarke’s rights. The court demanded answers from ICE. It did get ICE to talk. But all ICE had to offer was another set of lies.

First, it defied the judge’s oral and written order demanding Clarke be released immediately on December 11. The government received both before 3 pm on December 11, but ICE held Clarke for another night before finally releasing him on December 12.

Then it produced a endless string of lies when the court demanded the full records of Clarke’s detention (and movements to and from the Islip holding cell), along with photos of the cell Clarke had been held in.

Not only did the government ignore most of the court order, the stuff it sort of complied was a blend of lies and preposterous assertions:

In response, the Government filed a declaration from Supervisory Detention Officer John C. Diaz, based entirely on ICE records and conversations with other officers.

In addition to being rank hearsay, the information presented in the Diaz Declaration proves evasive and demonstrably false. For example, Diaz swears that Clarke “was booked out of NCCC at 3:45 p.m., and into CIHR on the same day at 3:53 p.m.” Given that the two facilities are more than twenty miles apart, requiring a drive of 35 minutes or more, it is physically impossible that ICE officers moved Clarke from one facility to another in eight minutes. Even more preposterous is Diaz’s sworn statement that Clarke was “booked out [of the Central Islip hold room] on December 10, 2025, at 8:30 p.m.” and then “transported to Delaney Hall Detention Facility (“DHDF”) [in Newark. N.J.] where he was booked in at 9 p.m.” Since that journey of about 60 miles consumes, depending on traffic, more than 90 minutes to as much as three and a half hours, it is again objectively impossible that the transport was completed in 30 minutes.

Time-keeping at ICE detention facilities appears to be deliberately sloppy:

These misstatements of fact serve to undermine the information presented and the reliability of the records maintained by ICE. Moreover, the declaration contains material misstatements. Clarke’s stay at the NCCC provides a powerful example. Diaz presents a series of booking times and concludes under oath that Clarke spent a total of under 65 hours at the NCCC. (stating that Clarke “spent two days, sixteen hours and forty-five minutes at NCCC.”). This is important, Diaz emphasizes, “because NCCC does not house DHS detainees for more than seventy-two-hour periods.” However, examination of the NCCC booking times presented by Diaz in his declaration – from December 6 at 11 a.m. to December 9 at 3:45 p.m. – reveals that Clarke spent about 77 hours at NCCC.

It also lied about the rooms people were being held in — or, at the very least, refused to answer any questions about them truthfully.

While there are other misstatements in the Diaz Declaration, of greater concern isICE’s failure or refusal to provide information ordered by the Court. First, though ICE provided its approximate measurements of the Central Islip hold rooms (four rooms measuring, according to Diaz, about 10’ x 7’ or 8’), nowhere in his declaration does he provide the capacity of those cells, a critical question here. Id.

While even that could be seen as a convenient omission, ICE has flatly refused to provide the requested photographs of the facilities. (“DHS is not prepared at this time to provide photographs of CIHR.”). Though legally immaterial – DHS was ordered to provide such photographs – part of the expressed rationale proves revelatory. Diaz avers that:

CIHR is populated 24/7 by detainees, and taking photographs while detainees were present would create privacy concerns for those detainees. [ ] Moving detainees out of CIHR for the purpose of taking photographs is also challenging, because those detainees would have to all be transported to a different facility.

If ICE is incapable of clearing a cell for the split second it takes to snap a photograph, it raises – or perhaps answers – other questions, such as ICE’s ability to clean, inspect and maintain the Central Islip hold rooms.

ICE is sliding headfirst towards a contempt holding. And even if that will just become another thing ICE (and the administration overseeing it) chooses to blow off, at least all of this will be on the public record:

ICE’s failure and, in at least one instance, flat out refusal, to comply with the Court’s directives along with its provision of demonstrably false evidence, requires some comment. While this matter was necessarily conducted in haste, and the Court believes that the assigned AUSA struggled to handle these matters in a reasonable fashion, ICE’s transgressions which include (1) failure to produce the Petitioner for the hearing, (2) failure to provide the holding capacity of the Central Islip hold rooms, (3) refusing to provide photographs of the Central Islip hold rooms and (4) ignoring this Court’s order providing for Clarke’s immediate release, cannot be overlooked.

Of these failings, perhaps the most indefensible is the agency’s refusal to provide photographs consistent with this Court’s order. A party who believes that a court order is unlawful – or in this case, unduly burdensome – does not have the right to resort to self-help. That party has legal alternatives – like a motion for reconsideration (which certainly would have been entertained here) or an interlocutory appeal – but cannot just simply refuse to comply.

Remember this the next time some government official is complaining about ICE being treated like a pariah or anonymous officers are bending reporters’ ears to tell them they’re just trying to do the right thing by enforcing immigration laws. They’re not. And they are the villains people think they are. This is what came to light as the result of a single detainee filing a complaint about the conditions of his incarceration. Imagine what could be exposed if people with actual power got involved.

Whether the Trump administration likes it or not, the right to a fair trial still exists. And even the person the government is now subjecting to what looks a whole lot like a vindictive prosecution is still a beneficiary of this right.

Kilmar Abrego Garcia was deported to El Salvador’s infamous CECOT earlier this year along with another hundred-plus deportees the country’s dictator agreed to take off the United States’ hands in exchange for a few million dollars.

Garcia kept fighting this deportation, arguing that it had violated his due process rights. The administration kept fighting to keep Garcia silent and locked in a foreign hellhole. The administration lost. A court ordered his return to the US. Nothing got much better once Abrego Garcia returned. The government whipped up an extremely questionable criminal case against him in order to keep him jailed. Then it offered him the unpalatable option of pleading guilty to a bunch of criminal charges or being deported to other countries with similarly miserable histories of human rights violations.

The judge handling the case finally released Abrego Garcia over the recent holiday season and demanded the government try to convince it that it isn’t engaged in purely vindictive prosecution of someone who has angered it by successfully evoking his constitutional rights.

The government won’t have to provide that answer for another couple of weeks yet. In the meantime, though, it no longer has a trial date to look forward to. That’s been set aside as the court awaits the govenrment’s explanation for its actions. The government has also been hit with a gag order that is supposed to prevent government officials from further disparaging Abrego Garcia with public comments and social media posts.

It violated that gag order almost immediately, with DHS sub-boss Tricia McLaughlin reposting a far-right podcaster’s declaration that Abrego Garcia was a “MS-13 terrorist.” This is the sort of thing the administration has been doing ever since it was forced to respect Abrego Garcia’s rights.

The government definitely shouldn’t be doing this, especially those involved with his arrest, deportation, detainment, or otherwise expected to possibly testify against Abrego Garcia in court. Now, as Politico’s Josh Gerstein points out at Bluesky, Abrego Garcia is seeking sanctions because another government official with a penchant for blatantly ignoring court orders — Border Patrol Commander Gregory Bovino — is doing the sort of thing this court order [PDF] explicitly forbids.

Once again, the government has responded to a Court order with which it disagrees by pretending it doesn’t exist. Mr. Abrego moved for sanctions based on senior DHS official Gregory Bovino’s flagrant violation of this Court’s October 27 Order (Dkt. 183, the “Order”) governing extrajudicial statements relating to this case. (Dkt. 271). The government’s brief opposing that motion largely ignores the Order.

[…]

Nor, in any event, can Mr. Bovino’s statements seriously be characterized as ones “that a reasonable lawyer would believe [are] required to protect a client from the substantial undue prejudicial effect of recent publicity” or “limited to such information as is necessary to mitigate the recent adverse publicity.” Far from being “meek,” as the government ludicrously characterizes them (Dkt. 282 at 7), Mr. Bovino’s statements include descriptions of Mr. Abrego as “an MS-13 gang member…ready to prey on Americans yet again,” “a wife-beater,” “an alien smuggler,” and someone who “wants to…leech off the United States.” Mr. Bovino went on to describe the judges presiding over Mr. Abrego’s civil and criminal cases as “activist” and “extremist.”

Abrego Garcia’s continue to press the case for sanctions against the administration, adding to the mix the comments DHS Undersecretary made late last week in apparent violation of the still-standing gag order:

On December 27, 2025, DHS Assistant Secretary for Public Affairs Tricia McLaughlin shared a post on X stating: “MS-13 terrorist Kilmar Abrego Garcia was released by a rogue judge and is now making TikToks.” Ms. McLaughlin added: “So we, at @DHSgov, are under gag order by an activist judge and Kilmar Abrego Garcia is making TikToks. American justice ceases to function when its arbiters silence law enforcement and give megaphones to those who oppose our legal system.” Neither Mr. Bovino’s nor Ms. McLaughlin’s statements “protect” the government—they defame Mr. Abrego, this Court, and the Federal District Court for the District of Maryland.

On top of asking for sanctions this court has yet to deliver, Abrego Garcia wants to know who’s handling what in the upper echelons of the administration, since it’s become apparent that not even high-ranking officials appear to be concerned that they’re violating court orders.

The Court should grant Mr. Abrego’s requests that the government be ordered to disclose (1) whether and how the prosecution provided relevant DHS employees with a copy of the Order, (2) who authorized Mr. Bovino and Ms. McLaughlin to speak about Mr. Abrego’s case, and (3) what guidance that person or persons gave Mr. Bovino and Ms. McLaughlin about what they could and could not say on national television or social media, as well as all communications between counsel for the government and Mr. Bovino, Ms. McLaughlin, or DHS regarding Mr. Bovino’s and Ms. McLaughlin’s statements, including any attempts to obtain a retraction or apology, so that the Court may determine the appropriate course of action.

It’s a long shot and the government is sure to insist that pretty much everything listed here is a privileged communication between lawyers and government officials. But there’s a chance some of this might actually make its way into open court, which will allow the American public to see how this administration operates when it clearly feels it doesn’t have to answer to anything but its basest urges.

Given the recent Supreme Court ruling that (surprisingly!) said Trump did not have the executive power to commandeer National Guard troops to aid and abet law enforcement/deportation efforts in Illinois, this ruling [PDF] from the Ninth Circuit Appeals Court was, perhaps, inevitable.

If it’s illegal to do it in Illinois, it’s equally illegal in California (as well as Oregon and any other state the administration has targeted). It may still be legal in Washington DC, but it’s probably only a matter of time before that deployment of National Guard troops (especially those from other states) is declared equally illegal.

The extremely short order by the Appeals Court vacates the stay it had placed on the lower court’s ruling in favor of the rule of law (which is, of course, a ruling against the Trump administration), allowing it to take force. It only runs two pages, but it does contain at least one surprising element: capitulation by Trump’s DOJ.

On December 23, 2025, this court issued an order directing defendants to file a supplemental brief “explaining why the partial administrative stay should not be lifted” in light of the Supreme Court’s decision in Trump v. Illinois, No. 25A443 (U.S. Dec. 23, 2025).

Defendants filed their supplemental brief on December 30, 2025. Defendants represented that “[w]ithout prejudice as to any other arguments defendants may present, defendants do not oppose lifting of the partial administrative stay and hereby respectfully withdraw their motion for a stay pending appeal.”

Trump, meanwhile, continues to operate in his usual fashion, sporting the sort of reckless “never say die” attitude that usually results in death by misadventure.

Earlier on Wednesday, Mr. Trump said he was, for now, abandoning his efforts to deploy the Guard in Los Angeles, Chicago and Portland, Ore. But he suggested that the administration may deploy them again the future.

“We will come back, perhaps in a much different and stronger form, when crime begins to soar again — Only a question of time,” Mr. Trump wrote on Truth Social.

There’s the patented Trump bravado — something that runs on a clean blend of bigotry and ignorance. Because this loss came at the hands of SCOTUS, administration officials are unable to deploy their usual “activist judge” bitching since the activist judges in the Supreme Court are mostly MAGA-cooked.

And they can’t claim this is the “liberal” Ninth Circuit going rogue, since its ruling is based entirely on the precedent set by the nation’s top court. All that’s left to do is the sort of social media sour grapes shit Trump is known for. At least until the administration decides to break every pane of glass in the Overton Window and just start turning every “Democrat” city into the Kent State campus.

But until that happens, the threats of bringing “liberal” states to heel by commandeering their National Guard are as empty as the heads of the administration’s most powerful members.

It’s hilarious that a single Salvadoran migrant has made the Trump administration look so pitiful. During one of its first purge efforts, the administration deported Kilmar Abrego Garcia and another 100-plus migrants to El Salvador’s infamous CECOT prison.

Since then, the administration has done nothing but lose when it comes to Abrego Garcia. He not only managed to get returned to the US, but he’s successfully pushing back against the bullshit prosecution the DOJ cooked up to punish him for daring to stand up for his rights.

At this point, the DOJ is almost out of options. The Tennessee judge overseeing the attempted prosecution has not only allowed Abrego Garcia to go free on bail, but has taken setting a trial date completely off the docket until the government can provide an argument for engaging in the prosecution that isn’t just “because he pissed us off.”

The timeline of this prosecution strongly suggests the government can’t contradict Abrego Garcia’s vindictive prosecution allegations. Abrego Garcia’s first experience with US law enforcement happened in November 2022 when he was pulled over for speeding by Tennessee Highway Patrol officers. The locals referred the case to Homeland Security Investigations based on “suspicions of human trafficking.” Garcia, however, was free to go and didn’t even get a speeding ticket.

On March 12, 2025, he was arrested and interviewed by HSI. The decision was made to deport him. Although the 2022 traffic stop was discussed, Abrego Garcia still wasn’t charged with any crime beyond being in the country illegally. HSI closed its human trafficking investigation on April 1, 2025. Again, no charges were brought.

Three days after that, a Maryland court ordered Abrego Garcia returned to the US because his due process rights had been violated. More litigation ensued with the Supreme Court finally weighing in on the issue on April 10. Then this happened:

[O]n May 21, 2025, a Middle District of Tennessee grand jury presented a two-count indictment against Abrego arising from the November 30, 2022 traffic stop. An arrest warrant issued, prompting the United States to return Abrego from El Salvador. Abrego was arrested on June 6, 2025, and was brought to this District.

So far, the government has turned over 3,000 pages to the court. Abrego Garcia hasn’t seen many of these because the government claims almost everything it has provided are privileged communications. The court says that may be true in some cases, but it hardly matters because what it has seen so far undercuts the sworn statements the DOJ has previously made in this case. The government has argued (not very convincingly) that this can’t possibly be vindictive prosecution because the acting US Attorney Robert McGuire did all of this on his own without any input from the rest of the administration.

Not true!, says the court [PDF]:

The central question after Abrego established a prima facie case of vindictiveness is what information in the government’s control sheds light on its new decision to prosecute Abrego, after removing him from the United States without criminal charges. These documents show that McGuire did not act alone and to the extent McGuire had input on the decision to prosecute, he shared it with (Associate Deputy Attorney General Akash] Singh and others.

Specifically, the government’s documents may contradict its prior representations that the decision to prosecute was made locally and that there were no outside influences. For example, Singh contacted McGuire on April 27, 2025, to discuss Abrego’s case. On April 30, 2025, Singh asked McGuire what the potential charges against Abrego would be, whether the charging document would reference Abrego’s alleged MS-13 affiliation, and asked for a phone call before any charges were filed. In a separate email on April 30, 2025, Singh made clear that Abrego’s criminal prosecution was a “top priority” for the Deputy Attorney General’s office (Blanche). He then told McGuire to “sketch out a draft complaint for the 1324 charge [making it unlawful to bring in and harbor certain aliens].”

On May 15th, McGuire emailed his staff that “DAG (Blanche) and PDAG would like Garcia charged sooner rather than later.” Then, on May 16, 2025, counsel of record Jacob Warren emailed Singh and reported, “if the DAG (Blanche) does want to move forward with the indictment on Wednesday, we think it would be prudent to loop in the press office ASAP.” Finally, on May 18, 2025, Singh emailed McGuire and others, and instructed them to “close[ly] hold” the draft indictment until the group “g[o]t clearance,” to file. The implication is that “clearance” would come from the Office of the Deputy Attorney General, not just McGuire.

The upshot is this: the government can assert all the privilege it wants to, but the system of checks and balances means it can’t bypass constitutional rights just by denying criminal defendants access to anything that might support their arguments.

The Court recognizes the government’s assertion of privileges, but Abrego’s due process right to a non-vindictive prosecution outweighs the blanket evidentiary privileges asserted by the government.

For now, the government is barely managing to hang onto a case it’s probably going to end up losing. All the power of the government — especially this government which has repeatedly expressed its disdain for courts, judges, and orders it doesn’t like — is meeting an unexpectedly immovable object. And if Abrego Garcia walks away from this a free man, he’s going to make it clear that even the cadre of thugs currently inhabiting White House cabinet positions still have soft, white underbellies that can be exposed.

America continues to be made great again. Or so says the collective of fascist buffoons currently holding federal positions of power.

The Trump administration has made a lot of noise about bringing the “rule of law” back to America — something that supposedly went missing during Biden’s term. The alleged lawlessness covers everything from rational immigration policies to whatever the fuck the word “woke” means to whatever White House mook is currently using that term in a disparaging way.

Trump’s return to office set in motion a whole lot of recklessness and lawlessness, starting with the wholesale dismissal of migrants’ constitutional rights and running all the way through several DOGE-gutted agencies until this regime reached its current nadir: straight up murdering people just because they happen to be in boats off the coast of Venezuela.

Anyone who actually respects the rule of law has either quit or been fired. They’ve been replaced by people Trump prefers, like former personal lawyers, Fox News commentators, and far-right podcasters.

We’ve already witnessed a lot of failure from the Trump DOJ, which can’t manage to secure indictments during revenge prosecutions ranging from anti-ICE protesters to high-profile names from Trump’s official enemies list, like NY Attorney General Letitia James and former FBI director James Comey. Everyone that failed upward due to their MAGA loyalty has made a mockery of half of the DOJ’s name: justice.

Fortunately, courts — for the most part — aren’t just rolling over for half-baked “unitary executive power” legal theories. As Reuters reports, the DOJ is in the midst of a historic losing streak that’s the direct result of Trump’s preference for loyalists.

As President Donald Trump’s crime crackdown got underway in Washington, D.C., in August, federal agents and police spotted a man named Torez Riley tugging at his backpack inside a Trader Joe’s store, searched it and recovered two firearms.

But federal prosecutors were forced to dismiss the charges after video surveillance revealed the search lacked probable cause and was unlawful.

In a subsequent legal opinion, a federal magistrate judge said the errors were part of a broader pattern of unprecedented prosecutorial missteps, resulting in a 21% dismissal rate of the D.C. U.S. Attorney’s office’s criminal complaints over eight weeks, compared to a mere 0.5% dismissal rate over the prior 10 years.

It used to mean that getting prosecuted meant getting fucked. Judges tended to side with prosecutors and rogue cops, rejecting only a small amount of cases that contained violations too egregious to be granted a “good faith” mulligan.

At this point, the DOJ is struggling to secure grand jury indictments, which is a little like struggling to lift a feather over your head. Most indictments are considered slam dunks because they’re entirely one-sided presentations made by prosecutors to people who are just there to pencil-whip their way through the day’s prosecutorial offerings.

But with Trump running the DOJ (and handpicking people like his former insurance lawyer, Lindsey Halligan to handle politically motivated prosecutions), the government’s fridge is now overstocked with unindicted ham sandwiches.

This is on top of literally hundreds of court rulings declaring the administration’s deportation efforts are illegal — specifically, the jailing and indefinite detainment of alleged immigration law violators who don’t pose a threat to public safety or a flight risk.

The blustering continues, however, with no sign of respite in sight. The administration apparently feels that if it goes hard enough for long enough, everything will eventually work out in its favor. Meanwhile, its band of bigots and incompetents continues to undercut its ability to perform well in court, much less convince judges that the government is acting in good faith.

The errors have sometimes undermined the department on civil and criminal matters it cares about, from the prosecutions of Trump’s political foes, to cases about immigration, violent crime, gender-affirming care and voting rights. At times, they came about after senior officials made public statements about pending cases on social media or television that strayed from the allegations made in sworn court filings, violating department rules designed to ensure a fair trial.

These mistakes are causing department attorneys to lose credibility with federal courts, with some judges quashing subpoenas, threatening criminal contempt and issuing opinions that raise questions about their conduct.

Reuters calls these “errors,” but they’re actually “failures.” The administration is very deliberate when it comes to its efforts to allow (and encourage!) Trump to rule like a king, bypassing the legislative process entirely with daily executive orders and Truth Social posts that are meant to be treated as executive orders.

Meanwhile, the DOJ is bragging that none of this — from the failure to secure indictments to the hundreds of adverse rulings it has generated since the beginning of the year — matters. Its statement to Reuters gives away the game: the administration believes (and not unreasonably!) that it has the Supreme Court in its pocket:

“This Department of Justice is winning in court on behalf of the Trump Administration and the American People with 24 successful rulings at the Supreme Court emergency docket so far and multiple prominent indictments of transnational terrorists, violent criminals, and even politicians who have allegedly engaged in corruption.”

That the Supreme Court has decided to handle most of its stuff completely off the record with its reliance on its shadow docket, it is aiding and abetting the administration’s autocracy speed run. But the DOJ can’t pretend it’s “winning.” To get “24 successful rulings” (which overstates things a bit), it first had to lose far more cases at lower levels just to get the MAGA majority of the Supreme Court to reject (or ignore) rulings against the DOJ and the administration’s routinely unlawful behavior.

We can hope that sooner or later the administration’s complete disregard for the rule of law and the US Constitution will catch up to it. But hope is only going to get us so far if the nation’s top court keeps ignoring cases that might generate precedent that works against the bigoted efforts of the administration. Maybe it will finally reach a tipping point and return the nation back to the stuff that actually made it great. Until it does, we can at least take solace in the fact that the rest of the federal court system isn’t just rolling over for Trump. It’s generating precedent almost daily.

More importantly, most federal judges no longer consider Trump’s DOJ to be a credible party in criminal cases or civil litigation. That means the government’s omnipresent threat (“your word against ours”) to people it’s trying to punish becomes less useful with each passing day. The lower courts know this government can’t be trusted. And as all of this continues, the Trump administration gives the courts more reasons to treat it as the most unreliable of narrators.

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.

Here’s another ruling the administration will probably choose to ignore if it can’t get SCOTUS to slide it a mash note under the table during the next shadow docket drop.

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.

Donald Trump has an enemies list. Not a secret one, either. It’s actually been published at the official White House website. But he has plenty of enemies beyond that. And ever since his return to office, he’s been engaged in acts of vengeance. Federal agencies have been purged of anyone who isn’t a MAGA loyalist. Journalistic entities have been threatened, sued, and — most recently — been placed under the “leadership” of people who serve Donald Trump, rather than their actual employers or the journalistic standards they’re supposed to uphold.

He’s also gone after a number of law firms who’ve represented people suing Trump and the administration. He’s also targeted lawyers who represent people he personally doesn’t care for, like the FBI agents who investigated the January 6, 2021 insurrection attempt by his supporters.

Mark Zaid has represented a number of clients, including national security whistleblowers during the Obama years. In contrast to Trump’s opportunistic thuggery, Zaid doesn’t have a political ax to grind when he chooses to represent someone in court. All Trump has is political axes in need of grinding. Since he can’t fire Zaid directly, he’s doing what he can to make it more difficult for him (and others on the president’s neverending shitlist) to represent current and former government employees.

Eisen and Zaid, the lawyers representing the FBI agents, themselves became the target of a presidential memorandum in March that revoked their access to classified material. Both have aggravated Trump for years. Zaid represented a whistleblower who helped bring about Trump’s first impeachment.

Zaid sued to restore his security clearance in May, in a case that is ongoing. His lawyer, Abbe Lowell, is a high-profile defense attorney who left Winston this spring in order to form his own firm. Lowell said his goal is to represent those “unlawfully and inappropriately targeted.” New York Attorney General Letitia James, who won a fraud judgment against Trump and is now a target of his DOJ, was one of his first clients.

Fortunately for Zaid, he’s one step closer to getting his security clearance restored. DC federal court judge Amir Ali says [PDF] what’s immediately obvious: the president can’t just revoke security clearances simply because he doesn’t like a lawyer’s clientele. That’s a violation of First Amendment rights and that still doesn’t fly here in the US, despite Trump’s continuous efforts to make every right dependent on loyalty to the president.

It’s so obviously a violation of rights that even the government doesn’t try to rebut Zaid’s main argument. Instead, it tries to argue that the president is pretty much a king and can do whatever he wants when it comes to determining who gets to do what in this nation:

This case involves the government’s retribution against a lawyer because he represented whistleblowers and other clients who complained about the government, carried out by summarily canceling the attorney’s security clearance without any of the process that is afforded to others. In defending its actions, the government does not meaningfully rebut that the decision to deny this attorney the usual process was based on his prior legal work for clients adverse to the government.

The government instead asserts, emphasizes, and repeats that the executive branch has exclusive power to determine who meets the requirements for security clearance. […] That is well established, but does not answer the question in this case. It is equally well established that the executive branch’s exclusive power to determine who satisfies the eligibility criteria for security clearance does not mean it can conduct that determination however it wants and free from the Constitution’s limits.

If you need more evidence that this is nothing more than blatantly unconstitutional vindictiveness, you’ll find it in Judge Ali’s 39-page opinion. Zaid, who has held a security clearance for the last two decades, first angered Trump in 2019, bringing forward a whistleblower complaint that led to the House filing articles of impeachment. Here’s how Trump reacted to that:

When Zaid’s representation of the whistleblower became public, the President publicly rebuked him, including by showing Zaid’s photo at a 2019 rally and calling him a “sleazeball.” The President later said: “And [the whistleblower’s] lawyer, who said the worst things possibly two years ago, he should be sued and maybe for treason. Maybe for treason, but he should be sued. His lawyer is a disgrace.”

Here’s how things were going earlier this year, when Zaid again crossed Trump’s angry radar:

More recently, in February 2025, Zaid filed a lawsuit against the government on behalf of several Federal Bureau of Investigation employees to protect them from being targeted for work they did investigating the January 6 attack on the U.S. Capitol. Four days later, a news source reported the President was planning to target Zaid, among others, by revoking his security clearance. The next month, the Director of National Intelligence announced on social media that she had revoked Zaid’s and others’ security clearances and access to classified information. And on March 22, 2025, the President issued a presidential memorandum to executive agency heads that included Zaid among a list of people for whom access to classified information was “no longer in the national interest.”

The government insisted the administration has the unilateral right to revoke clearances. The court agrees… to a point. But when clearances are revoked (or even denied), there’s a process involved that allows the person on the receiving end of this clearance stripping to appeal or challenge that decision. At the very least, they’re allowed to ask why. This summary stripping of security clearance from multiple lawyers at one time is obviously a rights violation (due process) that compounds the other alleged rights violation (free speech).

Based on the preliminary injunction record, the court finds the government has not conducted any individualized assessment of Zaid’s eligibility for security clearance. It instead denied Zaid the process and individualized assessment afforded to others because of his prior representation of whistleblowers and other clients in matters that were adverse to the government.

[…]

Because Zaid’s claims all challenge the legality of revoking his security clearance without meaningful process, they go only to the “methods used” to revoke his clearance.

The government pretends this is simply about denying access, which it can do. But it isn’t. It’s about selectively removing access, which isn’t really about the security clearance process, but whether or not the government can use the process to engage in retaliatory action against people it doesn’t care for.

So it tried this:

As mentioned, the government’s principal approach here has been to offer an expansive reading of the cases it likes (Egan and Lee) and to leave out the cases it doesn’t (Greenberg and Rattigan).

And ends up with this after Judge Ali parses the cited cases the government really wishes he wouldn’t have read so closely:

[E]ven the cases the government selectively quotes from recognize the line between “ends and means.

Furthermore, the court practically invites every other lawyer named in the White House memo to get busy suing over their stripped clearances:

The government, second, asks the court to just construe the presidential memorandum as an individualized national security assessment. But the court finds the memorandum was not based on any such assessment. It is undisputed that no government agency conducted an assessment of Zaid’s eligibility for clearance, and the memorandum itself does not purport to make any national security assessment—in fact, it does not mention national security at all. The memorandum instead directs agencies to summarily revoke Zaid’s clearance based on the “national interest,” which courts have consistently recognized as distinct from and more nebulous than a particular determination about national security.

Zaid wins, for now. The government has until December 30 to challenge the injunction. If it can’t raise a better argument than it has here (and there’s no reason to believe it can), Zaid’s clearance will be un-revoked on January 13, 2026. And the others who were targeted by the White House memo need to lawyer up and get their clearances back too. Certainly, the administration will try to get the Supreme Court to undo this, but for now, the clock is ticking.

This administration runs on vengeance. If it’s not Donald Trump aiming the DOJ at his personal enemies, it’s the DOJ itself taking a shotgun approach to justice (read: filling it full of holes) by filing as many criminal charges against anti-ICE protesters as possible. The charges have been transparently bogus — an obvious attempt by the administration to intimidate protesters into silence. And juries — even extremely submissive grand juries — have refused to buy what the government can’t even be bothered to sell properly.

Every loss by this administration is a win for what’s left of America and its constitutional ideals. Here’s one to cherish, just because the DOJ decided to brag about this supposed slam dunk a couple of months before a California jury went Wembanyana and swatted this shot halfway across the court.

The story starts here, back in September:

A tow truck driver from South Los Angeles has been arrested on a federal criminal complaint alleging he illegally towed a government vehicle used by law enforcement during an immigration-related arrest. 

The U.S. Department of Justice issued a media release on Tuesday morning indicating that Bobby Nunez was charged with one count of theft of government property. 

An affidavit filed with the complaint states that on Aug. 15, Nunez interfered with federal law enforcement officers conducting immigration enforcement in downtown L.A. This particular case involved a 23-year-old Colombian woman named Tatiana Mafla-Martinez, whose vehicle was boxed in by two government vehicles, preventing her from getting away. 

Here are some more details about the case, albeit supplied solely by the government:

While the second man was being addressed by the officers, Nunez allegedly got into his tow truck and towed one of the government cars blocking Mafla-Martinez’s car. Per the DOJ, the car he towed had its keys inside and also had a firearm, although it was locked in a safe. 

“Addressed” of course means “arrested.” And while the officers were otherwise occupied, Nunez towed their vehicle away because it was blocking access to the apartments. Nunez apparently resided at these apartments. The government says it found the tow truck “parked in its assigned parking space” two days after this incident (August 17). Somehow, it didn’t get around to arresting him for another two weeks.

After the arrest, DOJ prosecutor Bill Essayli decided to get on the X and brag about the nailing of this alleged criminal:

“Apparently he thought it would be funny to interfere with our immigration enforcement operations,” he wrote on X in September. “Now he can laugh behind bars while he faces justice. Nunez is looking at up to 10 years in federal prison if convicted.”

Whether or not the tow truck driver, Bobby Nunez, thought this was funny remains (like the rest of the case) an unproven allegation. But it is objectively funny, as this recording clearly demonstrates:

Essayli should know better than to run his mouth in public. His career with the Trump administration has basically been a long run of failures in courts while pursuing federal charges against protesters, journalists, and anyone else the administration thinks needs to be vindictively prosecuted.

The last laugh belongs to Bobby Nunez:

The South Los Angeles tow truck driver who was arrested in September on a federal criminal complaint charging him with “stealing government property” after he towed a government vehicle whose occupants were making an immigration arrest in DTLA was acquitted last week, prosecutors say.

We see what Essayli said about this. Nunez’s lawyers — both public defenders — pointed out the actual facts of the situation:

Deputy Federal Public Defenders Rebecca Harris and David Menninger, argued that the law enforcement vehicle was blocking the driveway to the apartment complex and that their client moved it only one block away to stop the impediment of traffic in the high-density apartment complex. It was returned less than 15 minutes later, they argued.

The jury apparently agreed: no (lasting) harm, no foul. The government suffered some temporary embarrassment but it still managed to carry out its arrests even if one of its cars was now located a few hundred feet away from where officers had (deliberately and carelessly) parked it.

Bill Essayli managed to handle the loss with whatever grace he has left in his body, simply stating that Nunez had been found not guilty and that he had no further comment. Local abhorrent/Trump deputy chief of staff Stephen Miller, of course, had to get up on his bitchiness horse and ride off into the sunset of his own humanity:

“Another example of blatant jury nullification in a blue city,” Miller wrote on X on Sunday. “The justice system depends on a jury of peers with a shared system of interests and values. Mass migration tribalizes the entire legal system.”

Good luck trying to parse whatever the fuck that is. I’ve tried multiple times and the best I’ve come up with is “Froth froth froth froth blue city froth.” Complaining about jury nullification is something someone does when they don’t like the outcome. And what makes this nullification more “blatant” than any other goes unexplained, although we all know it just means that it happened in Los Angeles.

If the DOJ is going to insist on being Trump’s vengeful marionette, things are never going to improve. Juries can be swayed easily, but they also tend to know when the government expects them to be the kangaroos in the court. The more extreme the government’s actions, the less likely they are to be complicit in obvious bullshit. No one in the administration is learning anything from this, which means they’re doomed to repeat their own recent history ad infinitum.

At long last, El Salvador native Kilmar Abrego Garcia has been released from custody. Abrego Garcia was among the hundred-plus migrants rounded up by ICE and shipped to El Salvador’s infamous torture prison, CECOT. Months of litigation ensued. The Trump administration was ordered (multiple times) to bring him back from El Salvador, with the court finding Garcia’s due process rights (along with most of those sent to CECOT) had been violated.

The government has done everything since then to make Abrego Garcia miserable. Once Garcia was returned to the US, he was immediately jailed as the government dreamed up a bunch of serious crimes to charge him with. According to multiple statements (mainly tweets and such) made by DHS and the administration, Garcia is an MS-13 gang member and human trafficker. Those charges were somehow extracted from a years-old traffic stop where Garcia was released and never charged with anything, much less placed into the deportation pipeline.

Garcia has fought the government every step of the way. And, in return, the government has been vindictively combative. Costa Rica’s government has agreed to allow Garcia to be deported there. But the government wants a head on a spike to intimidate other migrants, so it has given Garcia the option of being prosecuted (while remaining in jail the entire time) or being booted out of an ICE plane in extremely dangerous places like Liberia or Uganda.

If this all looks like a petty group of administration officials trying to punish someone for fighting back, it also looks that way to the court handling the criminal case brought against Abrego Garcia. Not only has the court released Garcia pending his trial, it is now about halfway towards dismissing the case entirely if the government can’t come up with an explanation that doesn’t sound like revenge.

The federal judge overseeing the human smuggling case against Kilmar Abrego Garcia has canceled an upcoming January trial.

In lieu of that proceeding, the court will hold a one-day evidentiary hearing dedicated to ferreting out whether or not the Maryland man was vindictively and selectively prosecuted by the government.

This week, U.S. District Judge Waverly Crenshaw, a Barack Obama appointee, slammed the brakes on the controversial prosecution in a relatively terse four-page order – a decided victory for the father of three and an equally stinging loss for the Trump administration.

In the ruling, the judge said the evidence provided by the defense had turned the case in Abrego Garcia’s favor long ago – at least on the due process issue of whether the prosecution is vindictive.

As the order notes, the court is doing the DOJ a favor here. There’s apparently already enough on the record that supports Abrego Garcia’s vindictive prosecution allegation. But the government will get one chance to rebut this early next year.

According to Abrego, the Government has already shown that it cannot [rebut his allegations], given what Abrego asserts to be troves of evidence in the record indicating that his prosecution is actually vindictive. (See Doc. No. 275 at 11–15). Based on this record, Abrego argues that the Court could rule on his Motion without an evidentiary hearing or the testimony of Blanche, McHenry, and Singh.

Nevertheless, the government asserts it can rebut the presumption, and that the evidence does not show actual vindictiveness. To rebut the presumption, the government intends to rely on the testimony of Supervisory Special Agent John VanWie (“SA VanWie”) of Homeland Security Investigations (“HSI”) Baltimore and Special Agent Rana Saoud (“SA Saoud”) of HSI Nashville, and, perhaps, the testimony of Assistant U.S. Attorney Robert McGuire.

Considering this landscape, and Abrego’s insistence that the current record alone warrants dismissal in his favor, whether the Court needs to hear testimony from Blanche, McHenry, and Singh, is questionable. Still, for the sake of thoroughness and to make sure that all parties are fully heard, the Court finds it prudent to proceed with an evidentiary hearing on Abrego’s Motion In doing so, it will limit the hearing to only the second step of the prosecutorial vindictiveness analysis: whether the government can produce objective, on-the-record explanations for Abrego’s prosecution that rebuts the presumption of vindictiveness. If the government can rebut that showing, the Court will revisit the government’s Motion to Quash…

Apparently the government thinks it can win this battle by bringing some mouths to a document fight. Abrego Garcia has already obtained plenty of damning information (which the Trump administration adds to on nearly a daily basis) that makes it clear this is all about punishing him for daring to object to his deportation to CECOT.

I’m sure everyone called to testify will say things about how this is all an extremely normal way to handle someone who asserted their due process rights. But maybe the government should just give up on this one. If the testimony manages to raise questions about the alleged vindictiveness, it doesn’t let the government off the hook. All it does is open it up to further discovery via Abrego Garcia’s pending subpoenas.

And I’m sure the judge will have something to say about the DHS’s actions over the weekend, where it took to social media to complain about a gag order while simultaneously violating it.

The Department of Homeland Security’s complaint about being under a gag order on Saturday in its case against Kilmar Abrego Garcia, a Maryland man who the Trump administration illegally deported to a notorious prison in El Salvador earlier this year, likely violated the court order.

Tricia McLaughlin, the Assistant Secretary for Public Affairs at the DHS, said that Abrego Garcia being able to make viral TikTok posts was unfair in a rant on X: “American justice ceases to function when its arbiters silence law enforcement and give megaphones to those who oppose our legal system.”

Not only did Trish violate the gag order, but she did so while reposting a still-unproven allegation about Abrego Garcia:

If you can’t read/see what McLaughlin reposted, it’s an X post by MAGA grifter/podcaster Benny Johnson that reads:

MS-13 terrorist Kilmar Abrego Garcia was released by a rogue judge and is now making TikToks.

To be clear, the gag order doesn’t prevent Abrego Garcia from making videos of himself lip-synching to Christian songs. The gag order targets the Trump administration because it has spent the last several months attacking Abrego Garcia on social media and smearing him with unproven allegations. Since this obviously affects Garcia’s right to a fair trial, the judge reasonably ordered the government to knock it off.

And it has responded by reposting a smear and bitching about an “activist judge” — the same judge it will have to answer to late next month. Odds are the government is going to be called to court well ahead of this deadline to explain why it thinks it doesn’t need follow orders handed down by federal judges.

The Trump administration, for all intents and purposes, declared war on Chicago back in September. It was inevitable that Chicago and the state of Illinois would eventually be targeted by Trump, what with its Democratic leadership and Trump’s faux concerns about gun violence. Less than a month into his second presidential term, the administration sued the state and city of Chicago in hopes of forcing it to aid and abet Trump’s mass deportation programs.

The unofficial declaration of war (albeit one that specifically stated in an Truth Social that “Chicago about to find out why it’s called the Department of WAR”) was followed by even more extreme bullshit by the president: a call for the arrest of Illinois governor J.B. Pritzker and Chicago mayor Brandon Johnson for “failing to protect [ICE] officers.”

Meanwhile, ICE just kept losing. Its tactics in Chicago violated prior consent decrees, which led to judges freeing detainees almost as fast as ICE could detain them. On top of that, ICE, CBP, and an assortment of federal officers violated rights on a daily basis, resulting in even more rulings against the administration.

But all of these lower court rulings are pretty much meaningless if they’re just going to be overturned by the Trump’s ace in the hole: the fully compromised majority of the Supreme Court. The state sued the administration to block its commandeering of Illinois National Guard troops. The administration lost at the lower levels, prompting a review by the nation’s top court.

We can breathe a bit easier for the moment. SCOTUS says the administration can’t take control of the National Guard… at least not with the arguments it’s currently making. The government argued that its definition of the term “regular forces” in support of its National Guard takeover referred to “civilian law enforcement officers,” i.e., federal officers from ICE, CBP, Federal Protective Services, etc. The Supreme Court says the government is using the wrong definition. From the decision [PDF]:

We conclude that the term “regular forces” in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active federal service under §12406(3), the President must be “unable” with the regular military “to execute the laws of the United States.”

Because the statute requires an assessment of the military’s ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from “execut[ing] the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 U. S. C. §1385. So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be “unable” with those forces to perform that function.

The circumstances aren’t what the administration claims they are. And if they are getting close to meeting Trump’s exaggeration of anti-ICE protests, etc., then he has the obligation to bring this before Congress, rather than unilaterally declaring everything to be so completely out of control, he’s practically obligated to take control of local National Guard units.

Despite his constant blustering and endless social media rants, the administration has yet to justify this bold, unprecedented use of military force to help handle immigration enforcement.

At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property. But the Government also claims—consistent with the longstanding view of the Executive Branch—that performing such protective functions does not constitute “execut[ing] the laws” within the meaning of the Posse Comitatus Act. If that is correct, it is hard to see how performing those functions could constitute “execut[ing] the laws” under §12406(3).

That means the injunction delivered by the Illinois federal court remains in place. The government is welcome to make other arguments at the lower level in hopes of getting this injunction lifted. But for now, Trump has lost at the highest level — and the one he most expected to have his back no matter what.

There are additional opinions attached to this very short majority ruling. The first is Justice Kavanaugh’s rather bitter concurrence. The most remarkable part of his addition to this ruling is a footnote that makes it pretty clear he’s chafing a bit after becoming part of the unofficial legal parlance. An earlier ruling of his said it was perfectly fine for federal officers to treat skin color or accented English as reasonable suspicion for a stop. The kind of stops ICE performs most frequently are now known as “Kavanaugh stops,” now that the Supreme Court (actually just Kavanaugh spouting off in the shadow docket) has determined “Terry stops” are too respectful of rights.

The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”).

Hmm. That’s certainly not what he said just a couple of months earlier. Oh, and Kavanaugh thinks the majority goes too far in its narrow reading of the statue. He proposes a hypothetical that sure sounds a whole lot like what went down in DC on January 6, 2021:

Consider a hypothetical example. Suppose a mob rapidly gathers outside the U. S. Courthouse in Philadelphia in response to an unpopular decision (or to influence the outcome of a pending matter). Suppose also that the mob is threatening to storm the courthouse and attack the federal judges, prosecutors, and other personnel inside, and to damage or burn down the building, thereby preventing the execution of federal law. Suppose further that U. S. military forces cannot readily mobilize to deploy to the site in time, that the local police and federal court security officers are outnumbered, and that the President wants to federalize National Guard units to protect the courthouse and the judges, prosecutors, and other personnel. Under the Court’s order today, even in those circumstances the President presumably could not federalize the National Guard under §12406(3).

Come on, Brett. Don’t play dumb. The storming of a federal building already happened and it was never a question of whether Trump could do anything about it, but rather a question of if he would do anything about it. We already have that answer, so this speculative theory only works when a president is more concerned about protecting people other than himself when the shit goes down. And if the administration reads between the lines of this hypothetical, it’s going to see a way to wash its hands of any responsibility if the next election results in the Democratic party taking back the Oval Office.

For now, the administration isn’t allowed to send National Guard units to Chicago. It has also already been blocked from doing so in Portland, Oregon. If Trump wants to use military troops to backstop his massively unpopular mass deportation efforts, he’s going to have to start declaring war on some “red” states, where he’s more likely to find state officials willing to deploy troops on his behalf. If he really wants this martial law thing to take off, he’s going to have to do it everywhere, rather than just in places run by people he doesn’t like.