As our readers know, Donald Trump’s Justice Department had a devastating day in federal court earlier this week in struggling to defend the administration’s use of a wartime statute invoked three times in U.S. history.
U.S. District Judge Alvin Hellerstein compared the Trump administration’s actions to a “secret court” or an “Inquisition like Medieval times,” then extended his prior order blocking the deportation of certain immigrants in his jurisdiction by 14 days.
“This is the United States,” Hellerstein, a 91-year-old jurist appointed by Bill Clinton, declared with indignation.
The full transcript of our conversation with Harry Litman is below:
HARRY LITMAN:
Hi everyone, welcome to another Substack Live.
As listeners know, I really like to use Substack Lives to get right down to some important breaking news by experts who are in a position to talk about it, and that's what we have today.
Adam Klasfeld, generally known to you from his new Substack, but many other virtuoso coverage of the last several years is with us. And that's because yesterday he was in a courtroom where there is actually an initial discussion of the merits of the Alien Enemies Act.
Remember, with all this procedural wrangling, we haven't had a court yet pass judgment on this issue. I think it's fair to say interpretation that the administration is relying on that some number, some hundreds of individual members of the Tren de Aragua drug gang centered in Venezuela somehow amount to a predatory incursion by a foreign country.
And Judge Hellerstein, who now has an actual case before him, didn't seem too sympathetic to that argument.
But let's go right now to Adam, who was there and can really give us a sense of what the vibe was and what the words were in the courtroom. Adam, thanks so much for joining.
ADAM KLASFELD:
Thank you for having me. I really appreciate it, Harry.
HARRY LITMAN:
You were there, witness to history or something. We're finally seeing the merits arguments being confronted. Can you sort of set the scene for us?
ADAM KLASFELD:
Well, to set the scene, Judge Alvin Hellerstein is a Bill Clinton appointee, a 91-year-old man, and the indignation coming out of him from start to finish, this hearing was just absolutely brutal for the government. And one of the trends that you'll pick up on the significance immediately is that arguing for the government again was someone from Maine Justice.
It wasn't someone from the Southern District of New York, and it's very clear that Washington is really trying to put forward their position on it, and people in the Southern District of New York are not really participating, except for sitting at the table. Not a word from them.
But Hellerstein, this was a hearing where he compared what the Trump administration was doing to a “secret court,” and said it was like an “inquisition, like in Medieval times.” That was a quote that played in every newspaper. And he out-and-out said that it looks like what they're doing is against the law, that the proclamation does not comport with the law.
Every time the government advanced its position, Hellerstein very much pushed back. The oral arguments with the ACLU's attorney, Lee Gelernt, by contrast, were pretty brief. There wasn't much challenging of this.
This was in contrast to the initial TRO decision. And remember, this is the hearing that ended with Judge Hellerstein extending his TRO to get ready to rule.
HARRY LITMAN:
Yeah, so let me set it up a little more. People will recall, Boasberg's ruling goes up to the Supreme Court, which rules 5-4, although affirming the due process rights, that you need to bring this in federal habeas corpus.
And in short order, three putative deportees do, and this is one that is in the Southern District of New York. In fact, Adam, you can explain this: It even seems to be a potential class action.
But it had been in front of Hellerstein, who had done the initial, we're getting familiar with these emergency processes, TRO, and was moving now to the injunction stage. So was this for argument? Were they taking testimony? What's left between now and a ruling?
ADAM KLASFELD:
What's left is Alvin Hellerstein writing it. Right now, we just heard oral arguments on it. The judge extended his TRO for the purpose of giving himself time to write a ruling that will withstand the inevitable appeal.
So you mentioned this is a class action. Right now, the class is estimated to be eight because it includes all of the people who are subject to the Alien Enemies Act Proclamation who are in the Southern District of New York.
And the government claims that there are eight people, but that number could be fluid.
Now, what will happen if Judge Hellerstein rules that the Alien Enemies Act [proclamation] is illegal, that could have much broader effects, and hours before this hearing began, we heard another judge issue preliminary findings in Colorado when she issued another temporary restraining order that talked about the definitions just not making sense.
Just take a step back here: As I'm sure your readers and your listeners know, the Alien Enemies Act usually applies by statute to a declared war or predatory incursion. And she went line by… word by word, but through the statute. We're not in a state of war. The Alien Enemies Act has been used three times in U.S. history, the War of 1812, World War I, and World War II. This does not fall into a state of a declared war, which Judge Hellerstein said during the hearing, made very clear that's the province of Congress. So it seems that he is teeing up a ruling on this that finds it definitionally inapplicable so far as a declared war goes.
He would hear the government on a certain argument that, “Well, there are non-state actors who sometimes work with government entities.” So in this case, the government claims that TdA, Tren de Aragua, works hand in glove with the Venezuelan government.
HARRY LITMAN:
And let me interrupt you just there because, as you know, of course, it's got to be under the statute a predatory incursion by a foreign country.
So to the extent he was questioning the poor DOJ lawyer, and we've been hearing in different settings about how they go in unprepared and just get slapped around. But was their position that somehow the conduct of the gang equates to conduct by Venezuela, or was their position that somehow the conduct of the gang equates to conduct of a different, I guess — The gang itself would be the flag in the United Nations foreign country, or were they trying to have it both ways?
ADAM KLASFELD:
They were trying to position TdA as some sort of quasi-state actor. Now, the judge, Judge Hellerstein, would listen to them on that topic, but ultimately didn't seem to find that very persuasive.
HARRY LITMAN:
Do you? You're a journalist, but really.
ADAM KLASFELD:
No, just as a factual matter, there's all sorts of reporting showing that there's a strong disconnect, if anything, between this gang and the Venezuelan government. It didn't get to the point. We weren't at a kind of evidence gathering over it.
Just on the law alone, the judge was very, very skeptical of this. It really was clear to everyone in the courtroom where he was leaning. It was a brutal hearing.
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HARRY LITMAN:
Tell us a little bit more about the actual questioning, how long, the thrust of it, what the DOJ lawyer tried to say, et cetera.
ADAM KLASFELD:
Well, at one point, and I think this is very representative for a lot of the Trump DOJ lawyering these days, the lawyer made the point that, in his opinion, this is one of Trump's most popular policies.
And Judge Hellerstein shot back immediately, “It's not about popularity.” And that's the sort of thing that you have all of this rhetoric taken to a courtroom, that's something out of a White House press release. That's something out of Truth Social, and it's why the local prosecutors won't touch it. The local prosecutors are not taking this case. This is coming from Maine Justice.
And I want to again take a moment to emphasize the weirdness, the utter weirdness, of seeing top-ranking DOJ officials, case after case, arguing this: a deputy assistant attorney general, in one case, Emil Bove, arguing Eric Adams alone at the table. That took place at SDNY, too.
HARRY LITMAN:
And I'll second that having been at DOJ. That just doesn't happen. Sometimes you say, “Oh, pretty please, can I have an argument?” And they make you hold the hand of some local person who knows what's going on. But the note...
They really, they don't have people. We saw just yesterday in this district, three more attorneys resign because they were being forced, or they attempted to force them to apologize for the Mayor Adams case, which of course, the whole point is, was properly brought and had the facts or law.
So for all the kind of Cold War that now exists, as I understand it, with at Main Justice and every office, SDNY, there must be truly no love lost between them and Main Justice.
ADAM KLASFELD:
Absolutely, and I'll take a step back here to say I've been covering specifically the Southern District of New York from the beginning of my career. That used to be my beat, and it's known as the Sovereign District of New York.
And people remember during the first administration, the first Trump administration, a series of U.S. attorneys resigning one after another because of interference from Main Justice, and it started right away with the Eric Adams case here. And now we're also seeing the laying back of the folks who usually work in that district and Washington taking over.
And specifically the Main Justice that openly announced itself as Trump's lawyers.
HARRY LITMAN:
Yeah, and I mean, you had that stunning time where someone actually candidly answered a question, this is in the AEA, though not this case, and said, “Yes, we mistakenly sent Abrego Garcia to El Salvador,” a position that many others had affirmed, and for that reason, expressly, that person was fired after a 15-year career.
Okay, but Adam, I think I interrupted you as you were kind of giving us the flavor. So about how long does he torture the DOJ lawyer, this Hellerstein, and what sorts of questions? Is he actually asking him to make defenses on the merits? Is he trying to get at the facts? What does Hellerstein, how does he use the time with the department lawyer?
ADAM KLASFELD:
Well, he went issue by issue and, first of all, tried to take on the motion to decertify the class.
Obviously, it's the Trump administration's preference that they take it one by one as ineffectively as possible. He talked about the fact that they are required under the Supreme Court's ruling to provide notice and a hearing, and hashing out what that means, what they want.
And in the administration's view, they don't need to provide any sort of notice in Spanish, which is the language that the immigrants who are detained can understand.
So it's already a part of his order that they must, [under] the temporary restraining order, they must provide them notice in Spanish. [The other part is] figuring out the number of days.
It was the ACLU's position that it should be 30 days because that's what the amount of notice that accused Nazis got during World War II, the last time [the Act was invoked].
HARRY LITMAN:
Clever, yeah.
ADAM KLASFELD:
So as it turned out, just because, and for very technical reasons, the INA mandates 14 days. That's the number that the judge went with, but just, it was a lacerating hearing. At every turn he talked about how, I don't know if he used this word, but how lawless this was — comparing it to the Inquisition, comparing it to a secret court, and saying they must do more.
This ran more than an hour, really on very technical issues. He's being very careful because it's eminently clear in all of these cases that this is going up on appeal. That's why he extended this temporary restraining order. It gives him another 14 days to write this opinion.
HARRY LITMAN:
There's an interesting practical issue here because as I say, there were three so far, and this was a couple days ago, habeas corpus actions. One of them is in the Southern District of Texas, and the Southern District of Texas sits below the Fifth Circuit Court of Appeals.
And as really sort of universal as the proposition that you have to give some due process before sending people to a gulag, in effect, is becoming, that would be one place that it could go elsewhere.
So there is, I think, even as the judiciary seems to coalesce around the unlawfulness of what the administration is doing, I think there's some practical import to who is out of the gate first.
Though, as you say, obviously, it's going up on appeal. So from here, it sounds like you'd be stunned if Hellerstein did anything other than grant the writ and require notice, opportunity, and the like.
At that point, if not before the administration can appeal, the Second Circuit sits not just in New York, but other states. Will Klasfeld still be on the job when it goes to appeal, and what happens next? And will we look to you for sort of updates?
ADAM KLASFELD:
I'd be happy to share updates at any time, and yes, I will still be on it.
HARRY LITMAN:
So you'll go to the Second Circuit and the like?
ADAM KLASFELD:
Absolutely.
The Second Circuit is a little more than 10 blocks away from my house, and I wouldn't miss it, and even for viewers listening right now, the Second Circuit does live streams of all of its arguments over its website.
To plug something that I'm doing, one of the things with All Rise News will do is give people the links to all of that sort of information.
HARRY LITMAN:
That's this new substack you've just started?
ADAM KLASFELD:
Absolutely.
HARRY LITMAN:
Give us 15 seconds on that just so we know.
ADAM KLASFELD:
Absolutely. So my friend Tim Mak and I started a new Substack called All Rise News that's dedicated to protest, the law, and what you can do about the headlines that you're reading.
I've been on the legal beat for about two decades now, and people always ask me, after they hear about the court ruling, what is to be done?
HARRY LITMAN:
Yeah, I get that all the time, too. That's very clever: All Rise. It's also the protesters.
OK, so then it will you have a sense of what it'll look like? You know, 91 year old senior judge. I worked in the Clinton administration when he was appointed. Sharp guy. But, you know, it's a pretty big job.
And they're all being very careful because even if the higher courts basically agree with their legal analysis, their remedial one — I think we're really seeing this with Judge Xinis and Abrego Garcia, you know, you could step a little bit too far and have five justices perhaps contradict you. And we don't know yet, right?
In the D.C. Circuit, in the Fourth Circuit, at least if plaintiffs are able to successfully argue that cases are related, we have a sense of what panels will look like.
In the Second Circuit, we do not, correct?
ADAM KLASFELD:
We do not. That's true, because this case hasn't gone up on appeal. So it will be assigned a panel. It doesn't seem...
This looks like, by all accounts, it's shaping up to be pretty lopsided. I don't expect that this... The Second Circuit will disturb it, but we'll see. I'd never make predictions. But this is a case that...
This is just one of the cases, as you noted a number of times, Harry, that is part of this new constellation of Alien Enemies Act cases, because instead of one case under the jurisdiction of Boasberg. It's now all over the country.
HARRY LITMAN:
And ultimately, it has to go to the court, right? I'm going to be talking about this in a in 45 minutes on “Deadline: White House” because of Abrego Garcia, which has been the leading case. There's been this somewhat cryptic order to freeze everything for a week — and some suggestion maybe that the DOJ is, you know, possibly seeing some reason here. Because even from their own political vantage point — and you're right they love the argument, it would appear that, “Liberal, legal nerds want to give due process. We want to get bad guys out of the country.”
But every day that the focus is on, especially Abrego Garcia, is another day they don't get to see that.
So maybe they're seeing reason, although it would — They'd have to eat a lot of crow.
A lot of times they've said, oh, we couldn't possibly get them, et cetera. But so that's obviously this is the No. 1, I think, white-hot issue in the whole administration to date. And it'll be the test case for whether or not they obey the orders of the court.
So that's among that and other reasons, like the terrible human complications here, that's why I think we're following it closely.
ADAM KLASFELD:
You know, and on your point about it being a white-hot issue, I think it's scanning to the public.
The public is very much disturbed by the administration's claims that they can grab anyone and whisk them to a foreign gulag, as you just said. We just ran a story of looking at phone call apps.
HARRY LITMAN:
Yeah, you guys are great. Yeah, go ahead.
ADAM KLASFELD:
Oh, thank you. Thank you.
But phone call data from this popular app 5 Calls, their internal data showed that that was the most popular call, the most popular phone drive was about Kilmar Abrego Garcia. That people were calling all over the country about that, and it really just shows that people get the importance of due process, that this is what animates people.
And it cuts against the conventional wisdom that it's all about bread and butter topics. No, people understand it's not just an abstraction when you say due process.
HARRY LITMAN:
At least when packaged in such a compelling story, I'll put it that way, because you and I both have been sort of fighting that kind of legal nerd battle that, as I say, the administration seems to welcome.
Adam, thanks so much for your time here.
Congrats on the new Substack, and hopefully we'll be talking to you in the not-too-distant future about the next stages of this case.
ADAM KLASFELD:
I'm looking forward to it, Harry.
HARRY LITMAN:
Thank you again.
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