Look what happened. This is crazy. We stand on the verge of the four greatest years in the history of Make America Great Victory. How can you be against them? The Supreme Court's Chief Justice, John Roberts, has issued a rare public rebuke. It came today after President Trump wrote on social media that a judge should be impeached because he didn't agree with him. It's the latest punch in a fight that's getting more and more serious over the power of the presidency and the courts. Welcome to Sidebar from The Washington Post. I'm Libby Casey. What's kicked off this latest round is the Alien Enemies Act. Now, this is a law from the 1700s that Donald Trump talked about on the campaign trail and promised to use. This weekend, he did it. He used it to deport Venezuelans, allegedly gang members, to a notoriously brutal prison in El Salvador. Today, the group here at The Washington Post are Sidebar.
our crew. We're going to talk about some huge questions this brings up. I'm with Rhonda Colvin, senior political correspondent, James Homan, columnist and editorial writer, and joining us, Maria Sacchetti, who covers immigration for The Post. Some of the questions we're going to dive into today, who gets to make decisions, the president or a judge? Should the Alien Enemies Act be used to deport gang members? Is that legal? And how do we even know if they are gang members? So let's start with this, Rhonda.
The Alien Enemies Act, we heard Trump talk about it on the campaign trail, but I remember people saying, like, could he really do that? Would he really do that? What is this law? Yeah, and I will add to that, not only did he talk about it on the campaign trail, it was actually in the Republicans' platform, the party's national platform, a few days before the RNC. I looked it back up. There was a sentence in there saying that this specific act will be used to deport individuals. But the history of this is, as you said, 1798, the Federalists are in control of Congress, and they feel that there is an imminent war brewing between the U.S. and France. So they decide, in order to protect the country from non-citizens living here who may start an incursion, they wanted to give the president a
full power to deport or detain non-citizens from countries that we are at war with. And if you go back to the language of the act, it specifically says during wartime, which is key right now as this goes through the courts. But this has only been used three times before the Trump administration has tried to apply it in this instance. One of the more remarkable times, of course, is during World War II. It sort of set the groundwork for the internment camps of Japanese Americans, but also the detainment of Italians and Germans during World War II. But again, this was created to be utilized during wartime. And right now...
This is going to be part of the major argument that we're seeing over the use of this law. And there is this checkered history of this, James. And Ronald Reagan apologized for what happened in World War II. And paid reparations to the Japanese who were still living in 1988. It is a dark chapter. This is one of those laws that has remained on the books. It was one of those things that Stephen Miller, who's now Deputy White House Chief of Staff, talked about constantly to anyone who would listen during their four years in the wilderness, that they were going to be a lot more aggressive about using these.
archaic tools if they got another chance. And that's what they're doing. So Maria, you cover immigration so closely for the Washington Post. You knew this could come up at some point that this was something the Trump administration wanted to do. But how did we actually find out that it was being employed this weekend?
So the president signed a proclamation. We were reporting on this, and the ACLU filed what we thought at the time was a preemptive lawsuit. So they were concerned that people were going to be swept out of the country under this act, and they filed a lawsuit. And that led to a temporary stop on the administration using it. But when the Trump administration finally published the proclamation, I read to the bottom, and I could see that it was dated the day before. So it's like, wait a minute. So you signed this. We asked, is this correct? And it turns out it was. He had signed a proclamation and not revealed it to the public.
Now, that's unusual. Usually if the president's going to sign something and make a proclamation, he's literally going to make that public. We didn't proclaim it. Exactly. Yeah. And they didn't. So the ACLU was preparing for this law, but were they taken off guard as well? I think they've been preparing for this for a long time, because as you know, you know, it was in Project 2025 and others and people have been talking about it. But and so people have feared that they were going to use this law, which, you know, is really just after the birth of the country. Right. Not so long, you know, not so long after that. Before, I think we had light bulbs, you know, and things like that. So this goes back a long way. One thing I thought was so interesting, too, is that when you look back after 9-11, you know, the country was.
just convulsing. You know, there were tons of immigration arrests after that and things like that. And they didn't invoke it then either. So one of the things in the Alien Enemies Act that the Trump administration has been saying is it's a times of war, but also during an incursion. And they've been trying to tag these gang members, Tren de Aragua and some others, as invaders, as trying to link them to an enemy state. And that's kind of a way to kind of saying they're piggybacking off Venezuela. And the argument against that is like, no, the Venezuelan government opposes the gangs. They're going after them and they oppose what you're doing now. And so...
So there's just a lot of questions about the legality of using this, especially at this time. I want to play some tape of how President Trump talked about this on Sunday night after we learned that this was all unfolding and that planes had actually left the country already with these alleged gang members on them. So this is how President Trump is thinking about these people and, in his mind, categorizing them as enemy combatants. Let's listen. They invaded our country. So this is, in that sense, this is war.
In many respects, it's more dangerous than war because, you know, in war they have uniforms. You know who you're shooting at. You know who you're going after. These are people that came out. They're walking down the streets. That's President Trump. And you may hear a lot of background noise. It's because he was on Air Force One. He's doing one of these, like, chat with the press, talked about a lot of things. James, has this been legally tested yet, this idea that these alleged Venezuelan gang members are...
classified as like wartime enemies. So basically everything Maria is talking about is the ACLU. As soon as they found out that this had actually happened, went to test it as quickly as possible. They pre-filed the suit at 4.20 PM on Saturday. The White House puts out the public version of the proclamation that Trump had secretly signed a full day earlier. And at five o'clock, a court hearing to study this begins. The reason that the administration had kept it quiet was they wanted to get the planes out before they could be stopped. So the first flight with these...
people, goes out at 526 p.m. The second takes off at 545. At 647 p.m., the judge, Boesberg, who we'll talk about more in a second, he says, turn the planes around. And then he ends up issuing a written order at 726 PM that doesn't say turn the planes around, but it says this is a temporary restraining order. We need to assess this before you can subject these people to potentially irreparable harm of sending them out of the country without due process. And so then the planes end up landing in Honduras and then El Salvador, all three. There's a third flight that actually takes off from Texas after the judge issues the order. And then Sunday morning, the president of El Salvador, Nayib Bukele, tweets, quote, oopsie, too late with a video of these alleged gang members being paraded, frog marched off of airplanes. And the secretary of state.
Marco Rubio retweeted it. I mean, he shared that as well. So that's sort of echoing what a foreign leader is saying, sort of mocking our court system in some people's eyes. So we keep saying alleged gang members because do we have any proof yet, Maria, that these are people who've broken the law and we're not saying they have, we're not saying they haven't. What do we know? I mean, we have asked repeatedly for a list of names and we have not been given one. I haven't seen it. And so what we would normally do as reporters is check the names. The criminal records are public court records. So we should be able to know who they are and what happened to them and what they did.
Because some folks, you know, undoubtedly there's gang members on the list and people commit crimes. I mean, that's something that we can verify and check. So that's something, you know, I think a lot of reporters, you know, and in the public, you know, have been asking about, you know, how can we, you know, if the Trump administration is going to make these allegations, like we would ask any administration to prove it, you know, tell us who they are. And so that's, that's one big. Big question we just don't have an answer to right now. Could you also see the story that our colleague Sylvia Foster filed this morning? It profiles these four men in Dallas who were swept up in this deportation effort. They're Venezuelans. They're in the system, right? They're working through the court system to try to sort of be here and stay here. The families say they are not gang members. What they do have are tattoos. And so the families, when they found out they were being deported...
In Venezuela, we're like, okay, well, they'll come home. We'll welcome them home. But they didn't come home because James, they instead went to a maximum security prison. In El Salvador. And the mom sees her son in this video that the El Salvadorians posted with his head shaved. And it really speaks to what's going on here and the reason why due process matters. Basically, what the Trump people want us to do is...
trust them. And they haven't been particularly trustworthy. And we've heard from other lawyers who say that one lawyer said that her client was LGBTQ and had tattoos and had fled Venezuela, filed a valid asylum claim and was sort of picked up in this dragnet, along with people who are serious gang members. And it is important. I think Trump really desperately wants this fight to make it look like the Democrats are defending gang members. And I think that there is widespread public support for
getting really serious violent gang members out of the country. But we don't know that all these people are. And we still don't have their names. They don't have access to phones. There also has not been any kind of declaration of war or resolution from Congress that would seem to activate.
this from being able to go into effect. We're going to talk more about the legal questions in a few moments, but I do want to play a clip from Tom Homan, who's The Borders Are, on Fox News Monday. And he'll talk about judges, but I also just want to give a sense of the fight that they want to have. To your point, James. I wake up every morning loving my job because I worked for the greatest president in the history of my life, and we're going to make this country safe again. I'm proud to be a part of this administration. We're not stopping. I don't care what the judges think. I don't care what the left thinks. We're coming. So The Borders Are is lumping together the politics of this, Rhonda, with the legality of it. Yeah, and you know, as James was just saying, people want to feel safe. Being tough on crime has always been a winning.
issue for politicians. So if you were just looking at surface level of what Holman is saying, most Americans would say, yeah, we want to be protected from gangs. But the concern a lot of groups like the ACLU is having is that this is not the right process. It's done in the cloak of darkness. It's done in the middle of night. It isn't going through the due process or the hearings that would typically take place when you were doing these deportations. So it seems as if...
these, you know, an antiquated law is being applied to a situation where it should not be applied. At least that's the argument. But again, many Americans may just see that clip and say, yeah, I can get behind that, that the Trump administration is keeping us safe. And again, this was a winning issue on the campaign trail. He talked about it by name, the act, he talked about it by name in October at a rally. He was, I don't know if you guys remember, but he said that there was a town in Aurora, Colorado or near Aurora, Colorado that was overrun by Venezuelans. And his administration would use this act to deport them and call it Operation Aurora. So this is going back to before people went to the polls to vote. So he did say he was going to use.
this act. And most people thought he might apply it to southern border non-citizens, but this may be widely applied, or at least we're starting to see them apply this to a small group and see how it broadens out there. I will add to this, because of something James had just said about people being rounded up, there has also been reporting that the Navajo Nation has had calls from people who said they are getting rounded up in ICE raids. That was back in the first week of the Trump administration. So there could possibly be this, you know...
chilling effect almost among people, people of color who feel like they are not safe going around, that they have to take extra identification. The ACLU has been telling people you might want to have some ID on you because we can't control this right now. What's really remarkable is that the administration is looking to the president of El Salvador as a model for doing a lot of this. These are Venezuelans who are being sent to El Salvador. We mentioned President Bukele. He has become a favorite of all the factions in sort of MAGA world. And some Republican senators, Tom Cotton from Arkansas, went down to visit him. He's in his 40s.
came into office, suspended civil liberties, sidelined the judiciary. His methods have been brutal. He has rounded up without due process more than 80,000 suspected gang members and basically said they're going to stay forever in this maximum security prison. But what's wild is that he is popular for it. And I think that you kind of have to consider that. His methods are...
But his approval rating is more than 80%. And he was only supposed to be able to serve one term, but he suspended the Constitution so that he could run for a second term. And the Trump folks see this strongman, and Trump likes a strongman. That's what he's trying to project with so much of this. And it's sort of unusual to see the American president mimicking this Latin American strongman. So Maria, ICE has tried to deport people from this country to third countries, to other countries in the past. What's definitely unique about this moment?
Well, I mean, first of all, I mean, they're sending people to El Salvador and they're putting them in jail, right? We don't know who those folks are. Just back up a bit, if you don't mind. I mean, one thing that is not unique to this moment is that immigration arrests and deportations, you know, the folks who get swept up have been secret for years. You know, I was covering this under the Obama administration and the courts were packed with people and people in shackles and, you know, and facing, those are civil proceedings. They look criminal, but they're civil. And that has been the case for a long time. But the Trump administration is kind of capitalizing on that secrecy to send people it is portraying as criminals without having to prove it, not even in a civil immigration court.
You know, so these folks are getting, one thing that I think sometimes gets missed is these folks are getting deported without a hearing. So some folks had hearings pending, allegedly, and they're not, you know, Tom Homan has said before, you know, they're going to have their day in court and I'm going to deport them with a final order. They're not waiting for that. And so that we know of, right? So it's possible some of the folks they put on planes had final orders, but we don't know that. And I just want to back up a little bit more. When they're talking about Venezuelan gang members, what a lot of people forget, and the Trump administration has not explained, it's changed on this, is that in one of his final acts in office, Trump granted protection from deportation to Venezuelans. Why did he do that if they were gang members? He did this.
And Rubio, the Secretary of State, who is the steward of a lot of this, he was an aggressive advocate. He was exhorting the Biden administration to grant them temporary protected status. Why? You know, this is just a couple of years ago. So, and why are they now all gang members? You know, hundreds of thousands of Venezuelans were eligible for this protected status. We call it TPS, temporary protected status, legal status. It's a quasi, yes, it is a legal status, very provisional. I mean, it expires, but, and it can be renewed. It's not a permanent residency or path to citizenship, but it's permission to work and stay here because your country is too, it is engulfed in a crisis and too dangerous to send you home. And Secretary of State Rubio thought that just a couple of years ago. Why doesn't he think that anymore? Yeah, I just want to interrupt real quick, Ronda. We did see a story this week from our colleagues that Venezuelan parents...
couple of parents in DC were grabbed by border control, separated from their children. And that's despite the fact, wait, you wrote that story, Maria? I'm like, there's this reporter named Maria Sacchetti who worked on the story. I should have checked your byline again. So that's a story that you were writing. Yeah. And that, but that, this is a family that had TPS. They're not, it's like.
They haven't. They haven't. And then I think it was, I'm sorry, I have to check the facts on this, but I think it was like two years later, the Border Patrol decides out of the blue to charge them with crossing the border illegally. Now, it's an extraordinary thing to do because usually that's something, it's a petty offense, minor, some compared to jaywalking. And it's usually resolved right away. It's such a minor offense that the trial is in groups. You don't get an individual lawyer. It's just 50 people plead guilty at once and then you're let go. And so for them to, you know, come after them so much.
later and 2,000 miles away from the border is an extraordinary thing. But there's real concern that the Trump administration is going to start tagging Venezuelans as being part of this gang without ever having to prove it, not in a criminal court and not in the civil immigration courts. And that is something. So you put out these proclamations, you put out these press releases saying they're gang members, but you don't have to prove that to the American people. That is a very big deal. Stay with us, Maria. We're going to come back in just a moment to talk more about this fight in the courts and what it means. You're listening to Sidebar from The Washington Post.
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This is Sidebar from The Washington Post. You can listen to us on your favorite podcast app or find us on YouTube. Just look for The Washington Post. So James, how surprising is it to have the Chief Justice of the Supreme Court put out a statement today with a rebuke, with a real kind of reprimand and a, hey, these are the powers and this is the power that we have here in the courts. It's a really remarkable statement. Only two sentences, but packs a real punch from Chief Justice who has been signaling that he feels this way. He writes an end of year judicial report where he kind of hinted at some of this, but this is coming right after Donald Trump puts on Truth Social that this judge in Washington should be impeached. Elon Musk, others.
Republican congressman introduced articles of impeachment. And Robert says in this two-sentence statement, for more than two centuries, it has been established that impeachment is not the appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose. And I just want to point out, this was not a statement coming in some kind of a hearing. It just landed, right? It wasn't part of a process that we all expected. It dropped from the sky. It dropped from the sky. We heard Roberts do something similar in the first term. There were times where Trump would really start to kind of rattle the cage of judges. And some of it is that judges are getting threats.
these people are being attacked. And what's so wild about this case in DC is Trump's calling him this big liberal judge. And so this guy, he's not. His name is James Bosberg. He goes by Jeb. He is very close with a lot of the legal establishment. He was actually appointed by George W. Bush to the DC Superior Court in 2002. And then Barack Obama put him on the district court in 2011. He is a really good basketball player, six foot six, but he's also a brilliant guy. Went to St. Albans, went to Yale, got a master's degree in history, goes back to Yale Law School. He's actually housemates with Brett Kavanaugh. And he is considered a...
feeder judge, meaning that the people who come and clerk for him almost always end up going to clerk for Supreme Court justices. And John Roberts thinks so highly of Judge Bosberg that Roberts named him as the presiding judge of the FISA court, the Foreign Intelligence Surveillance Act court, which is one of the most sensitive roles in government in 2020 and 2021. So Roberts, I think, saw these attacks on this really admired judge and felt like he had to speak up. I have another little tidbit, which is that I actually, last time I had jury duty, I was in a federal civil case and Judge Bosberg was the presiding judge. So it was a two-week trial. I got to watch him closely. He's a serious, sober-minded jurist. He's not some...
Liberal hothead. Well, even in Trump's statement, he wrote that he was appointed by Barack Hussein Obama, which is clearly a dog whistle of like the other and foreign is sort of the implication there. So, Rhonda, where does this get us here at this moment? Because the judge had told the Department of Justice to like cough up the information on the timeline that James had taken us through earlier. You know, when the flights departed, why weren't they brought home? Just lay it all out. Where is that process at? Well, there was a hearing, as you said, the judge asked the DOJ to start answering questions about the flight. What we have as far as the latest.
while we're taping is that the DOJ has refused those answers and said, we stand by this decision and how it was applied. So that's where we are at right now. Don't know the future, but it feels like a case that will just continuing being sort of that tennis match. I would assume that the ACLU will continue on in their efforts, but you know. Where does this go? We don't know, but that's where we are with the latest. So there's the politics of this, and then there's the law of this. And I think we've been trying to kind of distinguish between the two. So there's what people like Tom Holman or Stephen Miller, who works at the White House, say publicly. But then there's what they actually file legally. So James, are the two of them aligned? They're not. And it's important. There's a lot of conversations. This is a constitutional crisis. So far, the Justice Department is stonewalling, refusing to answer basic questions, hiding behind national security and a maximalist view of executive power. But they are also insisting in court.
that they complied with the order and that they didn't disobey the order. So they're out there sort of blustering and saying, we don't have to follow orders, but they're arguing in court that they, you know, they're making silly arguments like the planes were in international waters. So U.S. law doesn't apply, which is not true, but they're not out there. They're making arguments and they're appealing and they're asking the appellate court to disqualify this judge. They're not showing up for court. Well, I want to contrast that with how Stephen Miller is talking about it. So here's Stephen Miller on CNN on Monday afternoon. And let's just sort of listen to where he thinks the power should reside. If the president has to litigate every national security action.
with 700 district court judges that we don't have a function of democracy. That's Casey Hunt trying to get a word in edgewise there on CNN, who was really, really trying soberly to use your word, James, and clearly stick to the facts and just get him to commit yes or no about whether they were going to follow the judge's rules. I mean, if that's true, then why did Stephen Miller's think tank file so many lawsuits, right, against Biden administration policies? That's the thing. I mean, they filed legal challenges as well. In fact, they created something after leaving office that's modeled after the ACLU, and they filed a battery of lawsuits that stymied Biden's policies or tried to, and some were unsuccessful. Some important ones were unsuccessful. But this is what both sides do. So I mean, the ACLU does this, and so does America First Legal, which was Stephen's think tank legal organization. And so we see this all the time. Maria, what questions do you have right now going forward?
You know, as a reporter, you know, just the basics would be good. I mean, this immigration system has been secret for a very long time. The kinds of things that you're seeing unfold in the civil immigration system would never be tolerated in the criminal system. You know, if you get arrested for immigration violations, those are civil. They can put you in shackles, they can deport you, they can jail you, but that's...
Civil detention is not supposed to be punitive. They don't have to tell you who they are. You can't pull a court record. You can't look at the evidence for yourself. Anyone in this country can pull a criminal court record if you want to and find the evidence for yourself. We just can't get the basic facts. We never have been able to, in my experience, from the civil immigration courts. In something like this, when we're going to pay to jail people in another country that has had questionable human rights issues and complaints about human rights violations, there really is an urgency to find out what's going on.
You raised an important point that I think somehow we skipped over, that the U.S. is paying El Salvador to take these prisoners around. It also points to, and I think more reporting will have to be done, but how far does this go back? Like I mentioned on the campaign trail in the fall, Trump was talking about this act. He actually praised it as a time when there were strong politicians who would pass laws like this. He said that at an Arizona rally. So it appears that they were laying framework a while back, even though you did mention that there was sort of a flip-flop.
in the way Rubio has seen Venezuelan TPS holders, in the way Trump has seen them. There was a flip. But it does feel that at least months ago, from what we can see, they might have been planning this in a way knowing it would go up to the courts and being ready for those challenges. And the other point I'll make is this particular gang in February was designated as a terrorist organization by Rubio. And I'm wondering, because that is a formal action, was that part of the groundwork that was being laid so that they can argue in court that this is a terrorist organization, we're at war, and this is our case. So I know we may not have all those answers right now, but I'm just wondering how far does this go back?
And how far forward will it go? These are a few hundred people we're talking about on these flights. Can it be used on a larger scale? Well, and that's the question. If you don't have to prove that they're gang members, you know, are people who aren't gang members, who have nothing to do with this, who happen to be from the region, for example, Aragua in Venezuela, are they going to get swept up in this? Are they going to be tagged in that way? Or someone who has tattoos? We don't know. And I will emphasize, you know, this is definitely beyond Trump. I mean, I asked many of these same questions under the Obama administration when they were touting secure communities as sweeping out MS-13 gang members. And in fact, a lot of people who had nothing to do with the gangs or had no criminal records were getting swept out. And so this has been a secret issue for a long time. And, you know, we're asking these same questions again today. We're going to make one final pivot today because James has been tracking something very significant.
on the domestic and international front. Donald Trump spoke with Vladimir Putin, the president of the US, with the leader of Russia. What do we know about their phone call today, James? The two leaders talked for more than two hours. It started about 10 a.m. Eastern, went past noon, and Trump and Putin agreed to a partial ceasefire. Basically, Russia has agreed to end strikes immediately on energy.
and infrastructure. The Kremlin said that the strikes will stop right away on Ukrainian targets, think power plants, nuclear facilities. And it's not clear yet if Ukraine will accept, but we expect that they will. And Putin and Trump also agreed to immediately begin negotiations in the Middle East for a naval ceasefire in the Black Sea, and then to keep negotiating for an eventual ceasefire. So we don't know the full readout. There was some reporting that Trump might agree to let Russia control Crimea, to acknowledge that Crimea belongs to Russia. That does not appear to have happened. So this is a step in the right direction, but it's not a full ceasefire. James, Rhonda, Maria Cicchetti, thank you so much.
and really appreciate you all being here. We'll be back on Thursday with more from Sidebar. So we'll catch you then. A reminder, find us in your podcast app or find us on YouTube. I'm Libby Casey. We'll talk to you Thursday. Did you know you can play the Washington Post's games for free? Find the crossword, keyword, ridges, and on the record in the Washington Post app or at washingtonpost.com slash games. No subscription required.