The back and forth between a federal judge and the Trump administration over the timing of two flights it arranged last weekend deporting a group of Venezuelan immigrants to El Salvador under the extraordinary powers of a wartime statute will last at least another day.
The judge in the case, James E. Boasberg, has given the Justice Department until noon on Thursday to respond to his demand for the information, which he originally wanted by noon on Wednesday.
But two hours before that deadline, Justice Department lawyers made an emergency request to push it back. While Judge Boasberg granted the lawyers an additional 24 hours, he wrote in an order that the grounds they had offered for the delay “at first blush are not persuasive” — and even took a swipe at department for having asked so last-minute.
Judge Boasberg has asked the government to tell him — under seal if necessary — what time the planes took off from U.S. soil and from where, what time they left U.S. airspace and what time they landed. Much of this information appears to already be available in public flight databases, but clearly the judge wants an official record from the administration.
The judge is trying to determine whether the Trump administration violated his order not to deport the immigrants on the flights, which the administration has denied.
(A third plane also flew to El Salvador on Saturday but it has not figured in the dispute between the judge and the administration because officials say that the immigrants on board were removed under traditional immigration practices, not under the wartime law known as the Alien Enemies Act.)
The Justice Department’s request for the stay was not the only step officials have taken in recent days to try to avoid handing over information about the flights.
Earlier this week, department lawyers sought to cancel a hearing where they were supposed to talk about the flights in open court and then, in a highly unusual move, tried to have Judge Boasberg removed from the case altogether.
When they filed their emergency request asking for a stay on Wednesday morning, the court papers used bombastic language attacking Judge Boasberg, who has already faced calls for impeachment by President Trump and some of his congressional allies. The department lawyers described the judge’s demand for the flight data as “a picayune dispute over the micromanagement of immaterial fact-finding.”
In addition to asking for a stay, the Justice Department has also said it is considering invoking what is known as the state secrets privilege to get around giving the flight information to Judge Boasberg. That doctrine can sometimes allow the government to shield information from being used in court cases if it jeopardizes national security.
In his order granting an additional day, Judge Boasberg pointed out that if Justice Department lawyers intend to invoke that privilege, they are going to have to explain to him why it was required.
“This court is obligated to determine whether the circumstances are appropriate for the claim of privilege,” he wrote.
