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Michael Popak
When a senior federal judge uses Kafka and the trial novel as his template for holding the Trump administration accountable, you know good things are going to follow. Judge Boasberg, chief judge of the D.C. court, federal court, has just issued an order. You might think, well, he issues a lot of orders against the Trump administration and immigration, but this one's different because now he has certified a class of those 250 men that were sent in the middle of the night from the US To El Salvador without due process rights, without notice, with nothing, no habeas corpus rights, and purposely sent in the middle of the night by Donald Trump to avoid federal court supervision and jurisdiction. They're, they're likely coming back. And the Supreme Court's going to have to weigh in it all over again because Judge Boasberg has just ruled that that class needs to be certified. He has found that there is constructive custody by the United States in those prisons and Salvador. He's, he's not falling for the ruse that he mentions in his decision, citing Kafka to start. He's not falling for the federal court, for the Trump administration ruse that they're going to act like they don't have any relationship with El Salvador in order to make sure these people stay away from federal jurisdiction. He's not buying it. And this new order is the next step on, on the road to both contempt and another Supreme Court decision likely against Donald Trump. I'm Michael Popak. You're here on Midas Touch Network. Let's get to the breaking news. When I see Kafka, I get excited because the trial is one of my favorite books. And the reason that the judge starts from first word of his order with Kafka is to show you the Kafkaesque world that these people, human beings, were placed in by the Trump administration. Here's how he starts. Let me read to you from the actual decision, which we will post on Legal. I have substack as well. One morning, Kafka's Joseph, Joseph K. Awakens to encounter two strange men outside his room. As he gets his bearings, he realizes that he's under arrest. When he asked the strangers why, he receives no answer. We weren't sent to tell you that, one says proceedings are underway and you'll learn everything in due course coming from the trial. Bewildered by these men and distressed by their message, K tries to comfort himself that he lives in, quote, a state governed by law, one where all statutes are in force. He therefore demands again, how can I be under arrest? And in this manner. Now there you go again, the guard replies. We don't answer such questions. Undeterred, K offers his papers and demands their arrest warrant. Good heavens, the man scolds. There's been no mistake. Our department is only attached to guilt. It doesn't seek it out. That's the law. I don't know that law, k responds. You'll feel it eventually, the guard says. He then compares it as such on page two of his order. Such was the situation into which Frango Reyes Mota, Andre Jose Hernandez Romero and scores of other Venezuelan non citizens said they were plunged on March 15 of 2025. In the early morning hours, Venezuelans held by the Department of Health of Homeland Security at El Valle Detention center in Texas were awakened from their cells, taken to a separate room, shackled and trance, and informed they were being transferred to where they they were not told. When asked, some guards reportedly laughed and said that they did not know. Others told the detainees, incorrectly they were being transferred to another immigration facility or Mexico or Venezuela. Eventually they were shuttled onto a buses, to planes and loaded onto airplanes. Under what authority? And the and the judge continues, this judge knows this case well because he already ruled that the Trump administration has committed, likely committed criminal contempt by refusing his two separate orders to ground those planes, turn them back around and bring those people back to federal jurisdiction pronto. Trump administration said no. They laughed at his face. They said they'll never return those planes, just like they'll never return Abrego Garcia without a fight and a contempt order. He found them in contempt for having violated both of his orders. That contempt order is up on appeal, so it's been stayed for now. So the lawyers doubled back to Judge Boasberg and said, we got another way to do this. That's how crafty lawyers fighting for liberty, fighting, fighting for democracy are at the American Civil Liberties Union. And they ran to Boasberg and said, we got a better idea. The supreme court has already ruled 9, 0 and in two more cases 7 to 2 and 6 to 3, that everybody, even undocumented noncitizens, have due process Fifth Amendment rights under the habeas corpus body of law here in America to get before a federal judge here and what if they're sent somewhere else than to have them returned in order to go through the due process and notice process. So they filed an amended suit with Judge Boasberg. They didn't give up. Even though the Supreme Court suggested they had to file individual habeas corpus petitions all around the country. They said, why can't we join them all together and put this 250 that have been sent to El Salvador in one class. And the Trump administration fought back and said, we don't have custody and control over those people. And the judge says, what do you mean? They said, well, we dropped them off, but now they're the concern of the El Salvadorans and they're the concern of President Bukele. You mean you didn't get a receipt? Those are my words. When you drop them off in the middle of the night, you're paying $6 million to house them. What is the contract? What is the relationship? How can you say you don't have joint custody over these people? You've said it's a tool in your tool bag. Why can't you get them back? The judge never believed it. He let the parties participate in discovery to find out what is the relationship between the United States and El Salvador. Why? Why? And. And he's conscious, the judge said of the ruse, that they're. That the Trump administration is playing fast and loose with that relationship. The two, the true terms of it, in order to put people outside federal court jurisdiction. This is all the backdrop that's repeated and reported in this order. At one point, the judge in the order cites to the Declaration of Independence and says effectively that since 1776, when we separated from King George in our bill of complaint in the Declaration of Independence, we said one of them was, you were taking colonists away from the colonies and away from the court system and sending them off back to England, making the comparison. This is very similar to taking them away from federal jurisdiction and putting them in El Salvador. I never thought much about teeth grinding until my dentist asked me if I'd been waking up with jaw tension. It turns out I was grinding at night and doing nothing meant risking long term damage. But spending hundreds of dollars on a custom night guard? Not ideal. That's where Remy comes in. If you're part of the 30% of Americans who grind their teeth, your smile needs protection. And there's no better solution than Remy's Custom fit nightguard. 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He goes through laboriously the details of the planes, the surreptitious absconding of these people, the kidnapping, if you will, the sending to a deep dark gulag. And he says courts are facing a new threat by this president. In effect, we've never had a president that's tried to delegate and offload and export our justice system to, to foreign countries that don't respect the rule of law and don't respect our rule of law. The judge finally declares after he goes through the record that the relationship between the Trump administration and the El Salvadorans about Sitcott is much closer than Donald Trump would like you to believe that they that the United States continues to have constructive custody over these people. And even though the Trump administration fights that characterization, the court has made those findings. And therefore, having made those findings, they have also decided that the writ of habeas corpus pursued by a class action of joining all 250 people together, represented by one set of lawyers, is the right way to go. And at the end of the order, the judge says the following. I'm going to read to you from a couple of pages of it in a minute. But the judge says the following, that the motion for class certification as to the seek cot class, that's all 250 that are in that El Salvadorian maximum security prison is granted. There's one group that he didn't give class certification to. Those are people that haven't yet left the country. He's really focused on the due process rights of people that have left the country. And he's ordering, much like Judge Zinnis, that they, the Trump administration, facilitate their return. That's a new word, that's a term of art now that the Supreme Court has defined, you must facilitate the release from those jails and to bring them back. And he wants, within one week's time, one week from yesterday, he wants the Trump administration, he's ordered them to provide notice about how they intend to facilitate that ability. Now, this is different than the nationwide injunctions that are up at the United States Supreme Court about whether federal judges have that power. This is different than that, because here he's not using a nationwide injunction. He's just certifying a class of 250 and he's doing an order on top of it. And that's different, but it's still driving the Trump administration batty, still driving them up the wall. Let me just read from one aspect of this besides the Kafka references on page four. Judge Boasberg says in light of the Supreme Court rulings that happened over the over the last month or two, this court ultimately agrees that the C COP plaintiffs are likely to succeed on the merits of their due process claims. They were deprived of their individual rights to seek habeas relief before their summary removal, a right that need not itself be vindicated through a habeas petition. So he's also allowing Fifth Amendment attacks other than through habeas corpus as well. But the part that I found most interesting is just watching this judge both struggle with how to restrain the Trump administration and then figuring it out in real time pursuant to his 69 pages and doing it in such an artful way. What's going to happen now? Trump administration is not going to abide by this. They're already attacking Judge Boasberg, Jeb Boasberg. They're already saying he's a leftist, Marxist, radicalist. He's none of those things. He's a middle of the road moderate Democrat who is also or democratically appointed, who was also appointed by Republicans, who was appointed by Justice Roberts, who was protected by Justice Roberts recently and defended by him, who was the roommate of three of Justice Kavanaugh on the Supreme Court. He picked the wrong fight with the wrong guy, if you know what I mean. But he's gonna, the Trump administration's gonna do what they did in the Abrego Garcia case. They're gonna flirt with disaster again. They're gonna throw rocks at a prison to try to get themselves inside of it. They are going to refuse this, take it up on appeal to the Court of Appeals, who already overturned a part of what Boasberg had done in the past. So maybe they'll take a shot to try to get it to happen again. If they don't like that result, here comes number 20, emergency application to the United States Supreme Court. But it starts here and it starts now with Judd Boasberg signing his name to this order along with Judge Zinnis yesterday. One, two, punch. You put them all together and what do you got? You got Donald Trump on a tremendous losing streak when it comes to immigration combined with due process. We'll follow it all right here on the Midas Touch Network. While you're here, hit the subscribe button for Midas Touch. Go over to Legal AF, the YouTube channel. Hit the subscribe button for that as well. And we got a new Legal AF substack you're going to love because I post these kind of cases there for you to read under Filings af. So until my next report, I'm Michael Popo. Can't get your fill of Legal af. Me neither. That's why we formed the Legal AF substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing in the oral argument there, including a daily roundup that I do called wait for it Morning af. What else? All the other contributors from Legal AO for there as well. We got some new reporting, we got interviews, we got ad free versions of the podcast and hot takes where Legal AF on substack come over now to free subscribe.