Justice Denied in the D.C. Circuit

Judge Katsas and Judge Rao have written a dishonest and partisan exoneration for one of the Trump administration's guiltiest acts

Back in March, we know that the Trump administration kept two flights in the air after a federal judge specifically ordered them to turn around and come back. We know that the planes were carrying over 200 people whom the administration was trying to deport without any due process whatsoever to a secret prison in El Salvador, where they would be confined in torturous conditions at the U.S. taxpayer's expense.

We know that the administration defied the federal judge's order willfully—maliciously. A whistleblower who worked on the case (and who was certainly no liberal for most of his career) has since come forward to report that one of the Justice Department officials working on the case—Emil Bove—suggested to his underlings that they might need to say "F-- you” to the courts if the latter stood in their way.

Now—about four months later—Bove has just been confirmed by the Senate to a lifetime appointment as a federal judge on the Third Circuit Court of Appeals. And two of his new-found colleagues on the federal bench—Judge Gregory Katsas and Judge Neomi Rao—both appointed by Trump to the D.C. Circuit—have struck down contempt proceedings against Bove and the other officials who defied the order.

The opinions in which Katsas and Rao stopped the contempt proceedings were an extraordinary patchwork of dishonesty and motivated reasoning. They acknowledge that Judge Boasberg's contempt proceedings—which haven't even reached a final judgment—shouldn't ordinarily be appealable at this stage at all. In order to justify intervening at this premature stage, they deploy an extraordinary remedy.

Katsas: "There is no basis for interlocutory appellate jurisdiction. Nonetheless, mandamus is appropriate because the government is plainly correct about the merits of the criminal contempt."

Plainly correct, he says. Despite the fact that we know from public reporting that the government flouted Judge Boasberg's order—despite the whistleblower's disturbing allegations—Katsas finds the government is so indisputably correct in their interpretation that the contempt proceedings cannot even be allowed to continue to a final resolution at the trial court level, but must be halted by extraordinary means.

Judge Katsas at times seeks to pretend that he has no opinion on the underlying merits of the case. Maybe, he glancingly suggests, the government shouldn't have abducted 200 innocent people without charge or trial and sent them to a foreign concentration camp to be brutalized on the U.S. taxpayer's dime. "Perhaps it should warrant more careful judicial scrutiny in the future," he lightly suggests at the end.

But he also gives his true feelings away in his slighting references to the plaintiffs in the case—whom he refers to throughout as "alleged TdA members" (alleged on the government's say-so, and over their consistent denials, which they were never permitted to adjudicate in court, which is the whole point of this case). In an appalling footnote, he judges them presumptively and collectively guilty. He writes:

"In a different AEA removal case , the Solicitor General indicated that TdA members 'have proven to be especially dangerous to maintain in prolonged detention.' [...] Some of them 'recently barricaded themselves in a housing unit for several hours and threatened to take hostages and harm ICE officers.' [....] Given these facts, it is unsurprising that the government moved expeditiously."

I can't imagine a more naked violation of the ostensible principles of fairness and equity that purportedly govern the administration of justice in this country. Katsas admits that these supposed events took place in a "different AEA removal case" and involved different people. But apparently, the plaintiffs in this case are judged guilty by association, merely because they too are "alleged TdA members."

Katsas and Rao are both gifted at spinning webs of spurious pseudo-logic. They can parse words in the district court's orders to try to find unexpected pockets of "ambiguity" that were not evident to any rational person who followed these proceedings at home. They can natter on for pages about the writ of mandamus and the distinction between civil and criminal contempt and the procedural posture of the case.

All of which goes to show how the grand inquisitors and Moscow show trial judges of yore managed to wrap a cocoon of legitimacy and intellectuality around what was essentially a raw exercise of brutality and political power. Apparently it is possible to dress up obscene violence—sending 250 innocent people to be tortured in a secret dungeon—in the trappings of judicial reasoning.

But in his little footnote on page 9, Judge Katsas let the mask momentarily slip. Despite the pretense of legality, he actually believes the plaintiffs are presumptively and collectively guilty. He says they are responsible for whatever other "TdA members" are alleged to have done in a separate case. And therefore, they have no rights whatsoever that the U.S. courts and federal government need respect.

Oh, Katsas and Rao, you stand for all/ The hypocrisy, falsity, and callousness of the Law, to quote Hugh MacDiarmid. They clutch their pearls in outrage at the supposed horror of ICE detainees barricading themselves in a room as a last resort to try to survive (and what were they supposed to do instead? Apparently the courts will offer them no remedy). But they have not one word to say at all against a government that sent hundreds of innocent people to torture and indefinite confinement without the slightest judicial hearing.

Of these two circuit judges, I can only repeat what the poet Edgar Lee Masters wrote as the epitaph of his own "Circuit Judge":

I in life was the Circuit Judge, a maker of notches,

Deciding cases on the points the lawyers scored,

Not on the right of the matter.

O wind and rain, leave my head-stone alone!

For worse than the anger of the wronged,

The curses of the poor,

Was to lie speechless, yet with vision clear,

Seeing that even Hod Putt, the murderer,

Hanged by my sentence,

Was innocent in soul compared with me.