Trump's Justice Department Finally Told a Lie So Brazen It Had to Take It Back
(min-width: 1024px)709px,
(min-width: 768px)620px,
calc(100vw - 30px)" width="1560">Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
On Wednesday, Donald Trump's Department of Justice made a startling admission in court: It had put forth false information in its effort to secretly deport hundreds of young immigrants to Guatemala in the dead of night. DOJ lawyers had previously told a judge that the children's parents were all clamoring for them to be sent back to Guatemala. In truth, however, not a single parent requested their child's return , and many were not prepared to take them in if they suddenly arrived on their doorstep. This is not the first time lawyers at the Justice Department have been caught lying to the judiciary, and it won't be the last.
On this week's Slate Plus bonus episode of Amicus , co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the Justice Department's latest act of apparent perjury and its ongoing insulation from real consequences. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: On Labor Day weekend, the government tore hundreds of unaccompanied minors from their beds in the middle of the night and tried to pop them onto flights to Guatemala without notice or due process of any kind. This could have been Judge James Boasberg and those flights to El Salvador all over again. But because judges are learning as they go, it didn't become that. Then this week, it became manifest just how bad things were.
Mark Joseph Stern: We already knew that, over Labor Day weekend, the Trump administration was loading Guatemalan children onto planes to be illegally deported to their home country. The plaintiffs filed a horrific declaration detailing what had happened at these shelters, which I'll quote: “Staff witnessed children who had been pulled out of their beds. They were confused and scared. At Hands of Healing Los Fresnos, one young girl was extremely distracted, crying and repeatedly saying that she could not go back to Guatemala. At New Hope McAllen, one young girl was so scared that she vomited and asked to speak with a clinician. At Urban Strategies Alamo, one young teenager was scared that he might end up murdered like one of his family members.” So it was pretty clear at the time that this was not some grand, benevolent family reunification project.
Judge Sparkle Sooknanan, a Joe Biden appointee, almost immediately entered a restraining order, and quickly held a hearing at which she ordered the government not to deport these children. She did not leave a single loophole that the Justice Department could exploit, which shows how judges are learning from the flap with Judge Boasberg in March. But the Justice Department threw an absolute fit. And Drew Ensign, who represented the Trump administration at that hearing, told her : “It's outrageous that the plaintiffs are trying to interfere with these reunifications. All of these children have parents or guardians in Guatemala who have requested their return.”
But this past week, the Justice Department had to admit that this was not even close to being true. As Kyle Cheney and Josh Gerstein wrote at Politico , the government acknowledged that, in reality, none of these children's parents had asked for them to be sent back. And that information was confirmed by a report from the Guatemalan attorney general submitted to the court by the plaintiff. So the Justice Department was caught yet again lying brazenly to a judicial officer.
The wonky part of this is that there's a presumption of regularity, right? There's a long-standing presumption that Justice Department lawyers don't straight-up bind to the courts. And we've heard judges clocking that this presumption has quickly been eroded in the courts . Judges across the board are like: You know what? You lied before, and I'm not affording you this presumption that you're in here telling me the truth. And that really changes the entire ballgame, when judges start to think that you are standing in front of them and lying.
But there's also something here to file under “shit you tell your toddlers.” Because Drew Ensign did not, in fact, go to the court and say: By the way, I lied last week. So how does the Justice Department address this when they're called upon to explain that they simply fabricated the idea that all of the hundreds of parents had been consulted and desperately wanted their children back?
The Justice Department sent someone else to make that representation, an attorney named Sarah Welch, who said, Sorry, we were wrong. By the way, in the interim, this case was reassigned, for technical reasons, to Judge Timothy Kelly, a Donald Trump appointee. He might seem more likely to be sympathetic to the Trump administration than Judge Sooknanan. But according to Politico, he seemed disturbed at this hearing that the Justice Department previously put forward a grievous lie. And perhaps he was also disturbed that the guy who made that lie under oath in court couldn't even be bothered to show up to correct himself on the record.
We need one more beat on Drew Ensign, because he is the same person who told Judge Boasberg that those flights to El Salvador were not taking off when they really were. Judge Boasberg was so incensed that he initiated contempt proceedings . What's the status of that?
These proceedings are on hold because a three-judge panel of the DC Circuit froze them in August. In the majority of that 2–1 decision were two Trump appointees, Neomi Rao and Gregory Katsas. They actually had different reasons for doing so: Rao thought that the details of the contempt enforcement were illegitimate; Katsas thought the government didn't clearly violate Judge Boasberg's order, if you squint and look sideways. Either way, the effect of their decision was to free Drew Ensign and his compatriots from further proceedings for criminal contempt. And unless the full DC Circuit steps in—or maybe the Supreme Court, though that strikes me as very unlikely—these individuals will remain unpunished and uninvestigated. I guess they will just continue to bind to the courts with abandon. After all, in the Trump administration, when you don't face accountability for one misdeed, you keep doing that same misdeed over and over again.
Sign up for Slate's evening newsletter.
