Lawfare Daily: Two Appeals Concerning Alien Enemies Act Removals in Apparent Defiance of a Court Order
Summary
Roger Parloff and Lee Learned discuss two D.C. Circuit cases stemming from the Trump administration’s secret use of the Alien Enemies Act to deport Venezuelan men to El Salvador. They detail how the executive branch allegedly violated a judicial order by transferring detainees during a court recess, sparking a criminal contempt inquiry against Attorney General Todd Blanche and Judge Emil Bove. The episode analyzes the government’s arguments regarding order ambiguity and privilege, while also covering a separate appeal concerning the detainees’ due process rights and the judiciary’s jurisdic…
Topics discussed
Introduction: Rule of law and the upcoming en banc hearing
Overview of the two DC Circuit cases and focus on contempt
Background: Secret invocation of the Alien Enemies Act
The Alien Enemies Act history and the emergency TRO filing
The government's misleading statements to the district court
The emergency hearing and issuance of the TRO
Violation of the order and transfer to El Salvador
Government's defense and the threat of Supreme Court appeal
Whistleblower disclosures and premeditation evidence
Impact on Judge Boasberg and the men's suffering
Legal theory: Race against the courts as contempt
Supreme Court rulings on due process and secrecy
Internal DOJ emails and the 'Oopsie' retweet
The government's mandamus brief and legal response
Amicus briefs and the unprecedented nature of the case
Government argument: Ambiguity in the written order
Rebuttal: The oral order and linked written order
Government's concession regarding Secretary Nom
Subjective understanding and the 'gotcha' strategy
Declarations, privilege claims, and isolated lawyers
The September 25 case: Due process and jurisdiction
Conclusion and Lawfare Media support
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