Amicus with Dahlia Lithwick: "The Forgotten Lawsuits Targeting Trump’s Worst Abuses"

Podcast: Amicus with Dahlia Lithwick
Episode: The Forgotten Lawsuits Targeting Trump’s Worst Abuses
Original Release: December 20, 2025
Host: Dahlia Lithwick
Guest: Lee Gelernt, ACLU attorney

Brief Overview

This episode zeroes in on a series of lesser-known but high-stakes legal battles challenging the Trump administration’s aggressive use—some would say abuse—of executive power to target immigrants, especially under the Alien Enemies Act (AEA). Host Dahlia Lithwick and guest Lee Gelernt, lead ACLU attorney in several of these cases, unpack the legal history, court showdowns, human consequences, and ongoing resistance efforts to safeguard due process and hold the executive branch accountable.

Main Discussion Points & Insights

1. The Trump Administration’s Draconian Immigration Tactics

• Lithwick opens by describing Trump’s recent ramp-up of violent, inflammatory anti-immigration rhetoric and aggressive enforcement tactics, including mass arrests and secret detentions that harken to dark historical moments. She references public outcry over the treatment of migrants (01:17–04:00).
• Gelernt frames the administration’s legal posture as an effort to “eliminate due process”—not merely target criminals but strip entire classes of people of legal protection, demonstrating open contempt for judicial oversight (01:17, 24:25).

“They have done everything they can to avoid scrutiny by the courts… That’s the whole game for them, eliminating due process."
—Lee Gelernt (01:17)

2. The Alien Enemies Act — Its History and (Mis)application

• Gelernt gives a primer on the Alien Enemies Act, passed in 1798: intended for use only during actual wars or military incursions by nation-states (07:43–10:24).
• Historically used just three times (War of 1812, WWI, WWII), most infamously in Japanese internment.
• Trump has used the AEA for the first time ever in peacetime, to designate a Venezuelan gang (“TDA”) as a foreign invader—a stretch far beyond congressional intent.

"I think probably the administration has been surprised about how much pushback they've gotten across the ideological spectrum."
—Lee Gelernt (10:08)

3. The Secret Invocation and Lightning-Fast Litigating

• Trump signed an executive order secretly designating TDA as a terrorist threat and invoked the AEA, swooping up Venezuelan men for mass deportation, often based solely on tattoos (11:36–17:40).
• Gelernt and the ACLU moved overnight to challenge the action, relying on tips from lawyers and whistleblowers. They filed legal action in the middle of the night to halt deportations, leading to a dramatic emergency hearing (12:23–17:40).

"We were lucky to hear from immigration lawyers that their clients had been moved to Texas. Otherwise, it was very clear the Trump administration intended to do this in secret without any court supervision."
—Lee Gelernt (17:20)

4. Who Was Targeted — The Flimsy Criteria and Lack of Due Process

• The criteria for detention were arbitrary—often just the presence of tattoos regardless of real gang involvement. People with no substantive connections to crime (makeup artists, soccer players) were swept up (19:43–22:45).
• Due process was eliminated: Attorney General Bondi issued a memo saying detainees had no right to any review. Gelernt fought in Supreme Court for meaningful hearings and won stopgap injunctions (19:43–22:45).

"These men were given no chance... The government had zero evidence against any of them."
—Lee Gelernt (22:05)

5. Escalating Contempt for the Judiciary

• Lithwick and Gelernt highlight a profound escalation in executive contempt for the judiciary, especially compared to Trump’s first term. Officials openly flouted and misread court orders, refusing to cooperate even in the face of judge’s explicit instructions, resulting in ongoing contempt proceedings (22:45–30:54).

"It’s as if they don’t feel like we have three branches of government... just treating the courts as an annoyance."
—Lee Gelernt (25:00)

• Judge Boasberg’s pointed admonishments and the administration’s repeated evasions raise existential worries about the rule of law.

6. What Happened to the Deported Men

• Some deported men spent months in the notorious Sicot prison in El Salvador, suffering torture and abuse—before being returned to Venezuela, the country from which they fled. The government’s indifference to this suffering deepens the stakes of the legal fight (28:08–30:54).

"The abuse was absolutely horrific… these men spent three months essentially in hell."
—Lee Gelernt (29:42)

7. The Political and Narrative Impact — “Worst of the Worst” as Cover

• The administration continually frames its actions as focused only on “the worst of the worst,” using crisis rhetoric and militarized language (53:02–54:44), but records show ordinary people are routinely caught up.
• Lithwick: Once the government targets groups via martial rhetoric, the template can be endlessly expanded, justifying ever-broader abuse.

"It pulls together a whole bunch of the themes… using this locution of battlefields and war in a domestic policing situation, you can't unroll this. Once you've planted the idea that you're at war domestically..."
—Dahlia Lithwick (51:17)

8. Litigation Tactics and The State of Play

• Habeas corpus actions had to be filed in multiple jurisdictions, urgently, to block secret removals. All are now consolidated for a pivotal 5th Circuit hearing in January 2026 (46:29–50:27).
• The Supreme Court has blocked further AEA use for now. The next appellate decision is likely to shape whether the law can be used at all outside of real warfare.

9. The Broader Lawlessness and What Comes Next

• Lithwick and Gelernt agree: Trump’s first term had troubling policies, but the second term brings open contempt for legal limits and the judiciary—accelerating threats to basic constitutional structure (56:18–60:39).

"We are going to see one draconian policy after another... I don't know that there's going to be one point [of public outrage]... It's just gonna be a slog, a day to day slog, where we just have to keep pushing back and not get dispirited."
—Lee Gelernt (58:17)

• Gelernt emphasizes the importance of not succumbing to despair, urging listeners to “keep fighting and keep their head up and go from there,” however exhausting the grind (62:03).

"Things are bad, but they're not hopeless. And the fighting has produced real gains."
—Lee Gelernt (62:22)

Notable Quotes & Memorable Moments

• "They have done everything they can to avoid scrutiny by the courts… That’s the whole game for them is eliminating due process."
  —Lee Gelernt (01:17)

• "What we didn't know at the time, only suspected, is that almost all of these men, perhaps all ... were picked up based on essentially, tattoos."
  —Lee Gelernt (19:50)

• "[Judge Boasberg] said, ‘You have only one thing when you go out there and be a lawyer, and that's your integrity and your truthfulness. I hope you at the Department of Justice recognize that.’... a remarkable thing for a federal court judge to have to say to the Justice Department."
  —Lee Gelernt (24:49)

• "I think people understand if you're accused in any area of life, you just want the opportunity to say, Wait, can I please tell you what happened?... That's all that due process ultimately boils down to."
  —Lee Gelernt (29:28)

• "It’s not going to be one moment. Just this is what it means to fight for social justice. It's a grind. It's a day to day grind."
  —Lee Gelernt (58:40)

• "One thing that litigation can do is provide a platform to tell what’s happening, to tell the story of what’s happening on the ground."
  —Lee Gelernt (62:03)

Timestamps for Key Segments

• [07:43] — Explaining the Alien Enemies Act’s history and explicit limits
• [12:23] — How the secret invocation of the AEA was discovered and challenged
• [19:43] — Selection criteria for deportees and the elimination of due process
• [24:25] — Administration’s contempt for the judiciary and differences from Trump 1.0
• [28:08] — What happened to the deported men in El Salvador’s SICOT prison
• [35:49] — The obstruction and legal maneuvers in contempt proceedings
• [44:39] — Challenges in representing and locating the deported class
• [46:29] — Details on the legal strategy against future use of the AEA
• [50:27] — The dangers of militarized rhetoric and “enemy within” framing
• [58:17] — The ongoing struggle against a lawless regime, and why to persevere
• [62:03] — The value of storytelling through litigation and hope for continued resistance

Conclusion

This episode is a bracing look at how obscure legal tools, once weaponized, can devastate lives—and threaten the very scaffolding of the rule of law. Through meticulous reporting and firsthand advocacy, Lithwick and Gelernt illustrate the importance of relentless legal challenge, public narrative, and solidarity in the face of executive overreach.

Key takeaway: Victory in court matters beyond winning a single case. Each fight preserves due process, draws public attention to injustice, and keeps alive the possibility of a just, lawful society—even (especially) when those in power aim to snuff it out.

Host sign-off:
"Lee, you keep winning, I will keep telling the stories."
—Dahlia Lithwick (62:34)

For more details and ongoing legal updates, see the ACLU’s coverage and join Amicus Plus for extended analysis.