The government usually has an advantage when defending its policies against legal challenges. In general, the Courts often accept the factual statements and formal representations of the Executive Power about what is happening and why, instead of investigating what could be happening.
However, the torrent of litigation unleashed by the first months of the second mandate of President Donald Trump – combined with his habit of spreading distortions and shameless lies – is testing that practice.
The tensions show the obstacles faced by the courts in their attempt to hold on to the truth and underline to what extent the blatant manipulation of the facts by the president has raided the way to aggressively reinforce his authority and support his agenda.
After he was accused of breaching a court order by deporting hundreds of Venezuelan migrants to El Salvador, the government replied that the judge had no right to dictate the order, partly because, he says, those men are terrorists who invaded the United States on behalf of the Government of Venezuela.
But every element of that statement is subject to a serious dispute. At least outside a court.
Government’s efforts to mold the factual panorama in which the legal and political battle is fought around deportations are part of a broader pattern. He has adopted what they seem to be deceptive or fallacious positions in other litigation.
For example, while Trump himself proclaims that billionaire Elon Musk leads the agency dismantling initiative known as Doge, the Government has presented judicial writings denying any link. Officially another person directs her and Musk is an advisor to the White House.
The government has also insisted that it is due to judicial orders to raise freezing of spending when, in practice, agencies continue to block money. The legal lagoon? Technically, the political officials of the agencies invoked other legal authorities to retain the funds.
In the case of deportation, the basis of the government’s legal argument is that it does not matter what a judge perceives the facts, because Trump determines reality.
The case focuses on the Law of Foreign Enemies, a law of 1798 that allows the summary deportations of citizens of a hostile nation during the war. Trump has declared that he can use it to deport people that government officials consider members of a Venezuelan band called Train de Aragua, without individual immigration audiences.
On Saturday, James Boasberg, the main judge of the Federal District Court of the Columbia district, prevented the Government from deporting people based on the invocation of the law by Trump. The Government quickly asked a Federal Appeal Court to annul that order, while stating that several Trump statements established legal truths.
“The determination of whether there has been an ‘invasion’ or a ‘predatory incursion’, if an organization is sufficiently linked to a foreign nation or government or if national security interests have been somehow committed in such a way that they require the application of the Law of Foreign Enemies is fundamentally a political issue that the President must answer,” he said.
A White House spokeswoman referred a publication on Trump’s social networks on Tuesday in which he attacked Boasberg, who was appointed by Obama, and asked for his dismissal.
The Department of Justice has also urged a Court of Appeals to withdraw Boasberg from the case, insinuating that it cannot be trusted to protect classified information. (His past as President of the Foreign Intelligence Surveillance Court implies that he has extensive experience supervising cases of terrorism and espionage). Attorney General Pam Bondi has accused him of supporting “terrorists above the security of Americans.”
But regardless of whether there is evidence that each Venezuelan transferred to El Salvador to be admitted to a high security prison is really a member of the band, is it true that Train de Aragua is a terrorist group?
Last month, the State Department appointed Train of Aragua, along with several drug cartels and more bands, such as “foreign terrorist organization”, obeying a previous executive order from Trump.
But that was a remarkable change in the way in which the Executive Power has used the power granted by Congress to consider terrorist organizations. In the past, these groups were mostly militant Islamists, along with some communists and a branch of the Irish Republican Army.
By definition, terrorists are people who use criminal violence to promote an ideological objective, trying to force changes in politics.
Aragua’s train is undoubtedly a dangerous criminal organization, but nothing indicates that it is motivated by some concrete ideology, since it is dedicated to the smuggling of people, to extortion kidnapping and drug trafficking. Its objective seems to be rather obtaining illicit profits.
In an email, the White House Press Office listed a series of crimes that have been accused of members of Aragua, asking: “Does the members of the ADD do not seem terrorists to the NYT? How strange they have decided to defend this.”
Ali Soufan, former FBI agent who was the main investigator against Al Qaeda during the period around the terrorist attacks on September 11, said the government should present evidence that Aragua’s Train was trying to influence the actions of the US government before qualifying them as terrorists.
“For all that I have read about them, it is an evil organization, but we must be careful to only apply the accusation of ‘terrorism’ to the actions that legally adjust to the crime. Otherwise the term runs the risk of losing its credibility and seriousness,” he said.
On Friday, before transfers to El Salvador, Trump signed a proclamation invoking the law of foreign enemies against Aragua’s train. He said he concluded and declared that the band was perpetrating an invasion and “carrying out an irregular war” under the direction of the government of President Nicolás Maduro of Venezuela.
“I conclude and declared” these factual determinations, Trump said, “using all the extension of my authority to direct the foreign affairs of the nation under the Constitution.”
Trump did not say if there is any evaluation that the intelligence community has done on the train relationship of Aragua with the Venezuelan government and, if so, if it supports its factual conclusions.
His most concrete statement was that the band experienced significant growth between 2012 and 2017, when Tareck El Aissami held the position of governor of the Aragua region, before Maduro appointed him vice president.
The presentation of the Department of Justice before the Court of Appeals cited Trump’s “conclusions” as the facts for which the courts must evaluate the issue, including the repetition of the observation about the Aissami, and added: “The president could adequately conclude that, given what a significant TDA has been intertwined in the fabric of the state structures of Venezuela, it is a de facto arm of the Maduro regime.”
But both documents omitted a fact that seems relevant: the Aissami is no longer part of Maduro’s government, which is processing it by corruption. Nor is it mentioned that Maduro and his assistants have expressed hostility towards the Aragua train.
In an audience held on Saturday, Boasberg was skeptical about the government’s arguments before ordering any ongoing deportation based on Trump’s order. He indicated that the arguments presented by a lawyer from the American Union of civil liberties seemed convincing. Among them was that the law applied only to hostile acts perpetrated by enemy nations and consistent with war, and was not relevant to illegal immigration or for “non -state actors, such as criminal gangs.”
The judge ordered the Government not to expel anyone based on the Law of Foreign Enemies, and verbally indicated the Department of Justice to turn around the planes that were already in the air. A written version of that order omitted the part related to airplanes.
When it was clear that the planes that Venezuelans transported to El Salvador had not returned, the government seemed to present several arguments about why that should not be considered a violation of the court order.
First, he pointed out that migrants were already in international airspace when the judge issued the written version of his order, so he lacked jurisdiction. He has not explained why that would be a difference in terms of jurisdiction: men remained in American custody while flying, and the judge’s order was addressed to the officials in charge of the operation.
But in a letter presented on Tuesday, the Department of Justice raised a different reasoning: men had already been “expelled” at the time they left the US airspace, before the order. An official also told the judge that a third plane, who left Texas after the order, transported men who were subject to the final orders of expulsion, so they had not been deported “only” based on the law of 1798.
The government has also suggested that Boasberg had no legitimate authority to intervene. In general, the courts “have no jurisdiction on the management of the president’s foreign affairs, their powers under the Law of Foreign Enemies and its Fundamental Powers under article II to expel foreign terrorists of American soil and repel a declared invasion,” Karoline Leavitt, a white house secretary of the White House.
The Department of Justice, in a letter, repeated the general statement that in certain matters of national security and foreign affairs a president exercises a power that the courts should not even review.
Although the judges and magistrates tend to be respectful of the Executive Power in those areas, the Supreme Court has not only examined that conduct of the presidents, but has issued sentences against them.
The letter also cited a case of the time of World War II in which the Supreme Court said that a German repatriated by virtue of the Law of Foreign Enemies could not challenge its deportation before the Courts. However, that case occurred during a declared war and the plaintiff did not dispute being a German citizen.
Trump’s lies and exaggerations date back to the time when he was a pompous real estate promoter who promoted himself, and his projects. When issued a sentence against Trump in 2023, a judge said he had committed fraud persistently, creating a “fantasy world” by describing the size and value of his buildings.
He later amounted to the national policy of the Republican party by spreading the lie that President Barack Obama was born in Kenya, not in Hawaii.
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And in his first term, Trump issued a constant flow of false statements about both trivial and transcendental issues, whether the size of his inaugural crowd or the winner of the 2020 elections. The Washington postponed 30,573 false or misleading statements during his first mandate.
After an audience held on Monday against Boasberg, Skye Perryman, of the Democracy Forward group, which helps represent the plaintiffs, criticized the factual premise of the legal arguments of the government.
“The president is not a king, and all Americans should be worried about this illegal extension of warf -time when we are not really at war,” he said.