The Trump White House is denying it defied a judge’s order to halt deportation flights by using a wartime power to speed up removals. A former federal prosecutor tells us why the administration’s rhetoric may be brasher than its legal arguments.
Guest: Elie Honig, CNN Senior Legal Analyst
Have a tip or question about the new Trump administration? Call us at 202-240-2895.
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Guest: Elie Honig, CNN Senior Legal Analyst
Have a tip or question about the new Trump administration? Call us at 202-240-2895.
Learn more about your ad choices. Visit podcastchoices.com/adchoices (https://podcastchoices.com/adchoices)
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NewsTranscript
00:00And I want to just tell you that this has been a great honor. I was asked to do it and
00:06I said, is it appropriate that I do it and then I realized
00:11It's not only appropriate. I think it's really important and I may never do it again
00:16Last week President Donald Trump gave a speech at the Department of Justice
00:20Now presidents have spoken at DOJ before but most try to stay away whenever possible to avoid any appearance of playing politics
00:29Remember the Justice Department is supposed to be independent objective following the facts and the law no matter who's in the White House
00:37But President Trump seems to have other thoughts about that
00:41So now as the chief law enforcement officer in our country, I
00:46Will insist upon and demand full and complete accountability for the wrongs and abuses that have occurred
00:53During this speech he attacked the media. He attacked Biden era officials. He attacked judges involved in cases against him
01:00It's not even imaginable how corrupt they were
01:04Now baselessly accusing a judge of being corrupt isn't new terrain for President Trump
01:09But in his second term some believe his administration is taking a new approach to rulings
01:14He doesn't like by just flat-out ignoring them
01:17The White House is arguing it did not violate a federal judge's order when it
01:22Deported hundreds of suspected gang members on flights to El Salvador over the weekend the question before the court
01:27Did the White House intentionally defy the judge's order to stop the deportation and turn the planes around?
01:34While he considers challenges to the president's invocation of the alien enemies act the White House
01:40Denying it defied the order to halt the flights that actually flew
01:45Saying it came after the migrants had already been removed from the u.s.
01:50Territory though on Monday the Trump administration made an extraordinary
01:54Argument that the federal judges oral order to turn those planes around was not
01:59Enforceable because it was not in the written order and Trump supporters are Tom Homan did not mince words
02:05We're not stopping. I don't care what the judges think. I don't care the left thinks we're coming
02:10So what do judges think about that?
02:15My guest is Ellie Honig, he's a CNN senior legal analyst and a former federal prosecutor
02:21We're going to talk about why even if the phrase
02:23Constitutional crisis is overblown in this case. It could tell us a lot about how Trump intends to carry out his immigration agenda
02:32From CNN. This is one thing. I'm David rind
02:36So
02:42Ellie I first want to better understand this wartime authority that the Trump administration is invoking here to speed up deportations
02:50What exactly is the alien enemies act? So David, this is a law that was passed way back in
02:571798 what it does is it gives the president very broad authority to deport non-citizens
03:04So that would be people who are here illegally
03:06but also people who are here on visas or green card holders what are sometimes called legal permanent residents and
03:11That law gives the president the power to deport those people in two scenarios
03:16One is where we are in a declared war with a foreign nation
03:19Obviously, that's not the case
03:21the second one though is where there is an invasion or an incursion by a
03:26Foreign government and to that end Donald Trump. That's the one Trump's relying on he issued a proclamation
03:32Which you have to do as part of this
03:34Saying two things really that he finds that the presence of these gang members trend the agua here in the United States is
03:42essentially the same thing as an invasion and then second of all he says he finds that this gang is somehow aligned with or
03:50Promoting the same goals as the Venezuelan
03:54Government now both of those arguments sound like stretches to me, but they will be litigated in the courts ultimately
04:02Because it's not like the Venezuelan government is attacking the u.s. In any way, but they're making the argument that they're kind of loosely
04:10Affiliated there and for that reason we can classify it as you know, we're being attacked quote-unquote by this gang
04:18Yeah
04:19You you can tell that the statement Trump issued was lawyered and then lawyered again and then lawyered again
04:24To try to make it fit within this law. I should add David
04:28There's another argument though that the Trump administration is going to make which is you the courts do not even have the authority
04:35to review this that Congress in passing this law meant to vest this power in the president and
04:41Not have it be subject to review by the courts. And if that sounds sort of, you know, kingly or imperial
04:47It's actually not necessarily there are several
04:50Areas where the courts will say well we find that we do not actually have the power here the jurisdiction
04:56To second-guess what the president or maybe Congress has done. So look for that argument as well
05:02Well, so the invoking of this act did end up in court over the weekend
05:06Like it was brought even before basically it was enacted and then we saw this kind of really blow up over
05:12The idea of the first flights under this act, right?
05:16So yeah at issue here is the timeline when certain things were said when actions were or weren't taken
05:22So, can you tell me exactly what happened here? Yes
05:25There is a very important question separate from the question of whether the Alien Enemies Act applies, which is did the Trump administration
05:34Intentionally defy a court order what happened was on Saturday this past weekend. The judge held a hearing a
05:42Federal judge last night ordering a halt to the removals under the law and ordering in fact any planes carrying deported migrants
05:51Even in the air to turn around and return to the u.s
05:55And in about 647 p.m
05:57The judge said orally from the bench to the government to the DOJ lawyers
06:02Make sure any planes don't take off and if any planes are in the air turn them around and then
06:07About a half hour later
06:09There was a written order issued that actually did not say anything about the planes and when the judge ordered the deportations to stop
06:15With planes apparently in mid-flight
06:19El Salvador's president responded to the news by posting this oopsie too late
06:24With a laughing with tears emoji
06:27DOJ has argued. Well, it's really the written order that controls not the oral order
06:32That's a weak argument to me
06:34but the question the thing we now need to know is where exactly were those planes at what time and
06:40Was this an intentional effort by the government to ignore the judge?
06:44It appears that was not the case now or was the government sort of slow sloppy
06:50Reckless careless in conveying the judge's order over to the people who are controlling these planes
06:56And there's a big difference there
07:05Yeah, the government now says that all the people on this plane that took off just minutes after the judge issued his order at
07:11726 p.m. Were not removed solely because of this alien enemies act proclamation
07:18But it continues to push back on requests for additional information about the flights
07:22I do want to ask you about something White House Press Secretary Caroline Leavitt told our Caitlin Collins on Monday
07:30Subject to the written order of this judge
07:33Departed u.s. Soil u.s. Territory before the judge's written order
07:38but what about the verbal order which of course carries the same legal weight as a written order and said for the planes to turn
07:44There's actually questions about whether a verbal order carries the same weight as a legal order as a written order and our lawyers are
07:52Determined to ask and answer those questions in court
07:55Sean she said there are questions whether a verbal order carries the same weight as a written order. Is that true?
08:01Are there actually questions about that take it from somebody who made a living appearing in front of federal judges. That's a ridiculous
08:09Distinction when a judge looks at you from the bench, especially if you're the Justice Department and tells you do this
08:15I'm ordering you to do that. That is the law
08:18That is that and if the order comes out and it's a written order
08:22You know an hour later half hour later and it doesn't say everything the judge told you to do in court
08:28This isn't some game of gotcha. Oh, you forgot to type it up that way
08:32No, good faith DOJ lawyer acts that way
08:35And by the way, just to sort of support my point if you look at the Trump administration's brief on this point arguing that well
08:41It's really only the written order not anything else. All they can come up with is one case from a regional circuit court
08:5035 years ago having to do with child custody
08:52So if that's the lead case and basically the only case that that's an indication that you've got a weak argument
08:58Stephen Miller the deputy chief of staff is also making an argument that a judge has no say
09:04You know in terms of
09:06Trump's role as commander-in-chief as it relates to certain actions. What do you make of that?
09:12so this argument actually sounds more aggressive and more sort of
09:19Imperialistic than it actually is. Well, so first of all, there's a there's a term in law justiciable
09:24This is not justiciable. In other words, this is not subject to judicial remedy. Steve Miller used the legal word
09:32Justiciability and what that means is there is an area of law that says in certain types of issues
09:38the judiciary judges cannot come in and second-guess or
09:42Micromanage or overturn things that the executive or maybe Congress have done
09:47So there are areas where the courts have said that's not justiciable. That's not something we can decide
09:53District Court judge can no more enjoin
09:56The expulsion of foreign terrorists to foreign soil that he can direct the movement of Air Force One
10:02That he can direct the movement of an aircraft carrier that he can direct Marco Rubio
10:09The problem with the way Stephen Miller laid the argument out is he seemed to be arguing we've already decided
10:15We the administration have already decided. This is something the judges can't decide therefore. That's that it's not up to Stephen Miller though
10:22of course, it's up to the judges, but it I
10:25Fully expect the Trump administration to make that argument you the courts cannot should not rule on this
10:31You you have to just give way to the president here
10:33And by the way, it wouldn't shock me if they succeed on that
10:36But that's a separate thing still from a judge makes an order
10:41Whether it be from the bench or written and then the administration, you know goes out of its way to it to ignore it
10:47If that turns out to be the case, it's absolutely two separate things. So so one thing is
10:52Did you the administration
10:55Defy intentionally or recklessly in order of the court?
10:59That's a big problem unto itself and we're still in the early phases of this case the argument
11:05I'm talking about whether the the courts can actually have any say in supervising what the president does
11:11That's gonna go to the merits
11:12That's gonna go to whether this case ultimately ends up a win or a loss for one side of the other two different issues. Yes
11:22You
11:27Well, so even beyond this particular case and we'll see how it kind of plays out, you know
11:32Obviously, there's a lot of legal action around Trump administration action so far in
11:37This second term what can a judge do in response if it finds the administration has?
11:44Violated in order in any way. Yeah, so this is why this is such a
11:50Difficult and important question because the solutions aren't great
11:55They're not really satisfied if a judge concludes that he has been intentionally defied by the administration
12:02The first thing you can do is impose sanctions
12:05He can say I find you in contempt Justice Department or Trump administration and I impose fines or maybe I you know
12:11I recommend you for disciplinary hearings within you know, the bar licensing what that kind of thing but it that's pretty small potatoes
12:18I think if you could go back in time and say to the founders
12:22Well, what did you have in mind should be done if a president?
12:26Openly ignores a judicial order. I think their answer would be well, we did give you a solution for that
12:32It's called impeachment. But of course here we are in the real world in 2025
12:36There's a zero point zero zero percent chance that that happens. So the answers aren't really great. I should say though
12:42it's important to note that there is some hot rhetoric out there from Tom Holman and others that seems to be you know,
12:50Suggesting that the administration is openly and celebrating the fact that they're defying the courts
12:55But that's not really been the actual Trump administration's position in the courts their position in the case
13:01We've been talking about for example is well judge. We did not defy you
13:04We did not intend to defy you if something went wrong. It was accidental and here's why so there's there's a bit of a gap
13:12Between what the rhetoric from some of the surrogates and mouthpieces and you know
13:17Brasher personalities is and what the administration is actually arguing in court. Well, yeah
13:22So like we've heard this term constitutional crisis used a few times now and it sounds like this huge
13:28Emergency moment and does this kind of meet the definition for you or where do you see things?
13:34Well, so first of all, I I'm very reluctant to use that phrase
13:37I think people use it way too often to just mean like something happened that I don't like, you know
13:41The Supreme Court ruled this way and I disagree
13:45Constitutional crisis. I wanted this person indicted and they weren't or I didn't want this person indicted and they were
13:50Constitutional crisis. I don't sign on to that to me a constitutional crisis is where we don't have a next step
13:56We don't know what to do next and if the Trump administration had taken the position of we're ignoring you judge
14:04And we will continue to ignore you and we're doing it on purpose
14:08Then I think we'd be there because like we just discussed there's really not a viable
14:13Solution or remedy to that but again, they have not taken that position
14:18Um, I think look I think they've been the Trump administration has been sort of intentionally reckless in the way
14:24They've handled all this if we look at the Venezuelan deportations, you know
14:28They could have easily said look we have a hearing the judge scheduled a hearing for Saturday. Let's play it safe here
14:34Let's see what the judge rules and then we'll act accordingly instead they were scrambling the jets
14:38They had these planes loaded with individuals. They had them gassed up. They had some of them in the air
14:43They set the stage so that if there was any lapse of communication
14:47Whoops, what are you gonna do? Sorry judge that one got away from us. So there's a difference though between
14:54defiance and
14:56Being reckless or something like that. But yeah, look if we got to a point where
15:01Anyone in the administration said I refuse to follow this order then then I do think we'd be in crisis mode
15:06Well on these actual flights
15:08Do we know if all of those people on the planes were actual members of this gang that we've been talking about?
15:15So the answer is no, we don't know for sure
15:17And and it's one thing to keep in mind that I think is really important. We are very used to looking at criminal cases
15:25But criminal cases are so different from immigration enforcement matters in criminal cases, there's so much more disclosure
15:32There's there's due process rights
15:34There's transparency that does not exist by design in the immigration context
15:40So for example in a criminal case, we will have an indictment. We will know exactly who is charged with doing exactly what?
15:47We know that there's a specific standard that the case has to be proven to the grand jury by probable cause
15:54Eventually, there will be discovery. There will be an exchange of information
15:57ultimately
15:57There will be a public trial and there will be rights to counsel and rights to cross
16:02Examination and all those things that we're used to and then there will be a verdict which has to be rendered by a jury beyond
16:07A reasonable doubt. None of that applies to the immigration context. There's no such thing as an immigration indictment. There's no
16:14Area where the administration has to say specifically here's what we allege
16:19These people did wrong a lot of these laws like the one we've been talking about give the president very broad sort of summary power
16:26Now we may get more information about what the administration's position is through these court cases
16:33It may be that the courts may order DOJ
16:36Well, we need a little more information about what you're alleging or who you're saying
16:39These people are for example in the Mahmood Khalil case. This is the former Columbia student
16:45There may come a point where a court says well we need to know from you
16:49Administration what's your basis for deporting him? And why does it not violate the First Amendment?
16:53So we may learn a bit more through the court cases
16:57But remember don't think of immigration the same way we think of criminal cases. It's just a very different legal landscape
17:04Well, yeah, there was this other case involving a Brown University professor and dr
17:08Rasha al-awiya who was deported over the weekend from Boston back to Lebanon even after a judge had ordered immigration officials to give him
17:17Notice first and a source familiar with the case told CNN that federal agents found
17:22Photos of former Hezbollah leader Hassan Nasrallah and Iran Supreme Leader on her phone
17:27She attended Nasrallah's funeral on a visit to Lebanon
17:31So would evidence like that be enough to get you deported even if you're on a visa?
17:36Well, so first of all, there's actually a similar issue about defying the court order in that case
17:41There was some concern that judge voice concern that his order had been defied
17:46But again, the Trump administration came in they could have come in with the position of you're done, right?
17:50We defied you judge they didn't though they came in with the position of judge. We did not defy you
17:55Let us explain what happened and the judge has since adjourned or postponed a hearing
18:00So apparently the judge is at least somewhat satisfied by the explanation
18:05This individual this doctor, you know, she was a visa holder which does not entitle you to privileges forever. It's a privilege
18:12It's not a right. She was in the United States. She left voluntarily and then when she came back into the airport
18:19she was denied entry if this was a criminal case, which it's not but the
18:25Executive branch would have to say here's what we say this person did wrong and here's how we're gonna prove it here
18:29There are various laws that give very broad
18:32Deportation rights to the executive branch, so there's still a lot we don't know about this case
18:36but I think it's a good example of
18:38How these matters are different from what we've gotten used to from the criminal context and how there's a lot more unilateral
18:46Decision-making vested in the executive branch than in criminal cases. Yeah, Trump has argued he has wide latitude to carry out
18:53this
18:55Deportation plan and we're seeing that tested at various points around the court system LA. Thanks for the explainer. Appreciate it
19:01Thanks, David. Appreciate it
19:06On Tuesday morning
19:08President Trump went on social media to attack the judge who temporarily blocked the use of the Alien Enemies Act to deport alleged
19:15Venezuelan gang members and called on him to be impeached
19:19Hours later Supreme Court Chief Justice John Roberts issued a rare statement where he did not call out Trump by name
19:26But pushed back on calls for impeachment writing quote for more than two centuries
19:31It has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision
19:38The normal appellate review process exists for that purpose
19:42One thing is a production of CNN Audio this episode was produced by Paolo Ortiz and me David Reind our senior producers are Felicia
19:50Patinkin and Fez Jamil Matt Dempsey is our production manager
19:54Dan D'Azula is our technical director and Steve Lactai is the executive producer of CNN Audio
19:59We get support from Haley Thomas Alex Manassari Robert Mavis, and of course, we've got a lot of people from all over the world
20:05So thank you to all of you for joining us. I hope you have a great day
20:08CNN Audio we get support from Haley Thomas Alex Manassari Robert Mathers John Deonora Lainey Steinhardt
20:14Jameis Andres Nicole Passereau and Lisa Namarow special. Thanks to Wendy Brundage. We'll be back on Sunday. I'll talk to you then