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Trump administration invokes state secrets privilege for deportation flights, disputes Nazi analogy

homesafetytechpros — Wed, 02 Apr 2025 00:44:02 +0000

Immigration Law

Trump administration invokes state secrets privilege for deportation flights, disputes Nazi analogy

March 25, 2025, 11:02 am CDT

A prison guard transfers deportees from the United States, alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador, on March 16. (Photo by the El Salvador presidential press office via the Associated Press)

Government lawyers are arguing that the state secrets privilege protects the Trump administration from divulging details about deportation flights to El Salvador in Central America, and that the Venezuelans aboard weren’t entitled to notice that would give them time for a hearing.

Lawyers made those assertions Monday to a federal judge and a federal appeals court considering the administration’s use of the Alien Enemies Act of 1798 to deport suspected Venezuelan gang members. The deportees were taken to a prison in El Salvador, where the conditions “are reportedly parlous,” according to Chief U.S. District Judge James E. Boasberg of Washington, D.C., who is overseeing the challenge to the law.

The New York Times, the Associated Press, Politico, the Washington Post, NPR and NBC News have coverage.

In a March 24 notice, the government invoked the state secrets privilege to avoid disclosing further details about flights carrying the deportees in what the New York Times termed a “stubborn response” and “a patent act of defiance.”

Boasberg had sought information about the timing of the flights to determine whether the government violated his March 15 temporary restraining order telling U.S. officials to stop or turn around the flights.

The government court filing said disclosing information about tracking of the flights “would both endanger the government personnel operating those flights and aid efforts by our adversaries to draw inferences about diplomatic negotiations and coordination” regarding the removal of “terrorists and other criminal aliens from the country.”

The New York Times said the government stance “is extraordinary in part because it is refusing to provide information to Judge Boasberg—a former presiding judge of the nation’s national security surveillance court—even privately and in a secure facility for handling classified information.”

Earlier Monday, Boasberg refused to vacate his TRO that bans the administration from using the Alien Enemies Act, last invoked during World War II, for the deportations.

The government has argued that Venezuelan gang members were acting under the direction of the Venezuelan government, a hostile nation, and their arrival in the United States was a “predatory incursion,” according to the New York Times.

Boasberg said in his opinion the government’s “unprecedented use” of the act outside wartime “implicates a host of complicated legal issues.” But there was no need to resolve the “thorny question” about the use of the act, Boasberg said, because the plaintiffs are likely to succeed on the claim that they were entitled to hearings before deportations.

That issue was before the U.S. Court of Appeals for the District of Columbia Circuit on Monday as the government sought a stay of the TRO. According to the Washington Post, government lawyers acknowledged that the suspected gang members are entitled to hearings but said the government doesn’t have to tell them that they have been deemed to be “alien enemies” or give them time to request hearings.

D.C. Circuit Judge Patricia Millett commented that there were no procedures in place to notify the suspected gang members.

“Nazis got better treatment,” Millett said, referring to the use of hearing boards to remove suspected Nazis during World War II.

“We certainly dispute the Nazi analogy,” said Deputy Assistant Attorney General Drew Ensign.

The case is J.G.G. v. Trump.

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Trump blasts Bragg for death analogy used in hush-money case

homesafetytechpros — Sat, 14 Dec 2024 09:20:23 +0000

Left to right: Republican presidential candidate former President Donald Trump speaks on Tuesday April 2, 2024, at a rally in Green Bay, Wis. (AP Photo/Mike Roemer), Judge Juan Merchan poses for a picture in his chambers in New York, Thursday, March 14, 2024 (AP Photo/Seth Wenig), FILE — Manhattan District Attorney Alvin Bragg gestures while speaking during a news conference Feb. 22, 2024, in New York (AP Photo/Frank Franklin II).

Attorneys for President-elect Donald Trump on Friday again asked the judge overseeing his New York City-based hush-money case to dismiss the indictment and vacate the jury’s guilty verdicts.

Earlier this week, Manhattan District Attorney Alvin Bragg filed the state’s response to Trump’s motion to dismiss.

In the 82-page filing, the Democratic Party prosecutor suggested New York Supreme Court Justice Juan Merchan could use the “abatement-by-death” process to give the case some finality.

In the 23-page reply, a section header refers to the district attorney’s suggestion as a “Dark Dream Scenario” that is “Not An Option.”

Trump’s attorneys Todd Blanche and Emil Bove rubbished the idea as an effort to “fabricate” an “unconstitutional” adventure into a “Wonderland” and “make new law contrary to binding precedent.”

In the state’s brief, Bragg admits that New York does not use the form of abatement that his office is proposing – and directs the court’s attention to the “Alabama rule.” The district attorney describes the rule as: “when a defendant dies after he is found guilty, but before the conviction becomes final through the appellate process, the court places in the record of the case a notation to the effect that the conviction removed the presumption of innocence but was neither affirmed nor reversed on appeal because the defendant died.”

The state’s brief then explains how Merchan might apply the Alabama rule to the present case involving the 45th and 47th president:

In this way, the Alabama rule abates the criminal proceedings without vacating the underlying conviction or dismissing the indictment. As applied here, this Court could similarly terminate the criminal proceeding by placing a notation in the record that the jury verdict removed the presumption of innocence; that defendant was never sentenced; and that his conviction was neither affirmed nor reversed on appeal because of presidential immunity.

It makes sense to borrow from the manner in which courts address abatement because many of defendant’s arguments here parallel the arguments made in favor of dismissal and vacatur upon a defendant’s death.

Those notions, Trump’s reply argues, amount to something not entirely unlike appalling – and, in any event, are precluded by law.

“As a further illustration of DA Bragg’s desperation to avoid legally mandated dismissal, [Bragg’s office] proposes that the Court pretend as if one of the assassination attempts against President Trump had been successful,” the latest motion reads. “[Bragg’s office] also thinks it ‘makes sense’ for Your Honor to pretend that the Court is in Alabama. These abatement arguments are absurd.”

While headline-generating, the abatement-by-death suggestion is one of many arrows in the district attorney’s quiver.

Late last month, Bragg’s office made it clear prosecutors intend to push forward and ask for Trump to be sentenced in connection with his 34 felony convictions on charges of falsifying business documents — after he finishes his second term as president in January 2029.

That is still Bragg’s preferred method here – effectively keeping the case in a state of formal legal limbo for the next four years. But, this week, Bragg theorized that Trump could still be formally sentenced immediately – while keeping any resulting consequences at bay.

“If defendant is sentenced before his inauguration, such a stay would merely place appellate proceedings in abeyance,” the DA’s motion reads. “If defendant takes future steps to stay his sentencing and succeeds in doing so, such a stay would delay his sentencing until after the end of his presidential term.”

Trump wholly rejected that idea, too.

“The Zombie Case, which started in 2018 and involves decades-old false allegations, cannot ‘simply’ be ‘stayed’ until President Trump leaves Office in 2029,” the defense reply goes on. “[Bragg’s office] proposed course of action would violate not only Presidential immunity, but also due process, the Sixth Amendment, and the Eighth Amendment.”

To hear the once-and-future president tell it, a recent memo by the Office of Legal Counsel relied upon by special counsel Jack Smith foreclosed against keeping a sitting president under the threat of criminal sanction – period. While the case law cited Smith – and subsequently relied upon by the defense – is necessarily federal in nature, Trump says the parallels are obvious and apply here.

The defense reply explains, at length:

President Trump would be “legally stigmatized,” in violation of the Constitution, by the proposed stay because he would be denied “any meaningful opportunity to respond to his accusers in a court of law.” The “mere pendency of an indictment” violates Presidential immunity. OLC’s conclusions are grounded in reality and compelling. [Bragg’s office] offers no persuasive reason to avoid them. Staying the proceedings during President Trump’s second term would impede the Presidency and give New York County intolerable leverage over the Executive Branch, which exists for the protection of the entire Nation…

In addition, a stay would require President Trump to lead the Country while facing the ongoing threat that this Court and [Bragg’s office] are prepared to impose imprisonment, fines, and other punishment as soon as he leaves Office. To be clear, President Trump will never deviate from the public interest in response to these thuggish tactics. However, the threat itself is unconstitutional, under the Presidential Transition Act, the Presidential immunity doctrine, and the Supremacy Clause, because it would exacerbate the stigma and distraction burdens discussed above…

Trump’s team reiterates its arguments from their earlier brief. Namely, that dismissal is required by the presidential immunity doctrine, the Presidential Transition Act, and the Supremacy Clause of the U.S. Constitution.

The heart of the defense brief, however, is steeped in attacks on Bragg’s character – and heavy focus is on the abatement idea.

Again, the defense filing:

[Bragg’s] brief includes a request that the Court disregard the New York Court of Appeals and fabricate unconstitutional “abatement” law, all based on an extremely troubling and irresponsible analogy between President Trump—who has survived multiple assassination attempts, and will soon be “the only person who alone composes a branch of government”—and a hypothetical dead defendant. That unhinged contention demonstrates conclusively that DA Bragg and [the DA’s office] cannot be trusted to separate their political motivations and careerist ambitions from their obligations to seek justice.

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