Faced with a flurry of adverse court orders it would rather not follow, the Trump White House is increasingly deploying a strategy of claiming or even manufacturing its own uncertainty to dodge their effects without appearing to outright defy them.
The Trump administration has faced several major legal setbacks in recent weeks, most notably in its efforts to deport undocumented immigrants without due process under the Alien Enemies Act or in spite of protective orders.
In each of the two cases, when ordered to take specific steps to recall deportation flights or secure the release of a man wrongly deported, the administration has opted to adopt twisted readings of the order rather than comply.
In the case in Washington, where the administration was told to recall planes that contained alleged Venezuelan gang members deported under the Alien Enemies Act of 1798, the administration took advantage of its own perceived uncertainty to flout the order.
Officials affirmed in court that they understood they needed to recall the planes. But after they failed to do so, the justice department claimed to the US district judge James Boasberg that they had not been certain after all because his verbal directive was not in the written order.
In the other deportation case in Maryland, where the administration was told by the US supreme court to facilitate the return of Kilmar Ábrego García, it twisted what the order said to manufacture uncertainty.
Justice department officials told the US district judge Paula Xinis they thought they were in compliance because Trump had posed the question of returning Ábrego García to the Salvadorian president Nayib Bukele in front of reporters in the Oval Office. (Bukele responded that he did not “have the power” to return Garcia.)
The recalcitrance is a product of the Trump White House’s maximalist interpretation of its executive powers, and its boast that the courts have no practical way to ensure that every part of orders are complied with fully and expeditiously.
According to people familiar with the matter, some officials have been unconcerned about antagonising judges in the lower courts because they think, ultimately, the supreme court will pare back the orders the administration finds most objectionable.
The administration’s attempts to cloud their own readings of the orders have been accompanied by a simultaneous effort to misrepresent the orders in public, where officials do not face the prospect of sanctions for misrepresenting positions in court.
Barely a day after the supreme court mostly upheld a lower court order to get Ábrego García back on US soil to face immigration proceedings in the US, Trump’s immigration policy chief, Stephen Miller, made claims that were nowhere in the ruling.
“The ruling solely stated that if this individual at El Salvador’s sole direction was sent back to our country, we could deport him a second time,” Miller said, adding the supreme court had found in the favor of the government, rather than the plaintiffs.
Miller appeared to have attributed the administration’s own intended course of action to the supreme court, which in fact ruled the US needed to return Ábrego García so that he could face further proceedings – as he was entitled to had he not been wrongly deported.
The ruling said the lower court needed to give due regard to the president’s sole power to conduct foreign policy, but it did not say, as Miller suggested, that El Salvador dictated to Trump whether he could comply with the order.
The obfuscation has worked to some degree, buying the Trump White House weeks of delays as the federal courts grapple with how to decide which complaints of uncertainty are bad-faith excuses.
But the stakes have since increased, with both judges declaring they have reason to believe that Trump officials acted deliberately to flout their decrees. To get to the bottom of the matters, both judges have opened investigations into who may have been responsible.
The decisions represented a developing effort by the federal judiciary to hold the White House accountable for its apparent willingness to violate court orders and test the limits of the legal system.
On Tuesday, in the Ábrego García case, Xinis rebuked the administration for doing “nothing” to secure his release and ordered it to answer questions in writing and in depositions about what steps it had taken to comply with the supreme court order.
The next day, Boasberg issued a scathing 46-page opinion finding that there was probable cause that officials acted in criminal contempt of his order to recall the planes of hundreds of suspected Venezuelan gang members.
On Thursday, the administration faced another legal defeat when a three-judge panel at the US court of appeals for the fourth circuit unanimously slapped down an appeal against Xinis’s move to open an inquiry.
“The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,” wrote the circuit judge J Harvie Wilkinson, a Ronald Reagan appointee.
“This should be shocking not only to judges, but to the intuitive liberty that Americans far removed from courthouses still hold dear.”
