The government typically has an advantage when defending its policies against legal challenges. Courts generally defer to the executive branch’s factual declarations and formal representations about what is happening and why, rather than probing for what may actually be going on.
But the flood of litigation unleashed by the radical opening months of President Trump’s second term — combined with his habit of peddling distortions and outright lies — is testing that practice.
The tensions make explicit the obstacles facing the courts as they seek to get a grip on the truth and underscore the extent to which the president’s brazen manipulation of the facts has paved the way for him to aggressively bolster his authority and support his agenda.
Accused of defying a court order by deporting hundreds of Venezuelan migrants to El Salvador, the administration has countered that the judge had no right to issue the order — in part because, it says, the men are terrorists who have invaded the United States on behalf of Venezuela’s government.
But every element of that claim is subject to serious dispute — at least outside of a courtroom.
The administration’s efforts to shape the factual landscape on which the legal and political battle over the deportations are being fought are part of a broader pattern. It has adopted what seem to be misleading or deceptive positions in other litigation.
Even as Mr. Trump himself publicly proclaims that the billionaire Elon Musk leads the agency-dismantling initiative known as DOGE, for example, the administration has submitted court filings denying any connection. On paper, someone else is formally its director, and Mr. Musk is a White House adviser.
The administration has also insisted it is obeying court orders to lift a spending freeze when in practice, agencies keep blocking the money. The loophole? Political appointees at the agencies technically invoked other legal authorities to hold up funds.
In the deportation case, the heart of the administration’s legal argument is that it does not matter what a judge might perceive the facts to be because Mr. Trump gets to determine reality.
The case centers on the Alien Enemies Act, a 1798 law that allows summary deportations of citizens of a hostile nation during war. Mr. Trump has declared that he can use it to deport people whom administration officials deem to be members of a Venezuelan gang called Tren de Aragua, without individual immigration hearings.
On Saturday, James E. Boasberg, the chief judge of the Federal District Court for the District of Columbia, blocked the government from deporting anyone based on Mr. Trump’s invocation of the act. The administration swiftly asked a federal appeals court to overturn that order while asserting that various statements by Mr. Trump established legal truths.
“The determination of whether there has been an ‘invasion’ or ‘predatory incursion,’ whether an organization is sufficiently linked to a foreign nation or government or whether national security interests have otherwise been engaged so as to implicate the A.E.A. is fundamentally a political question to be answered by the president,” it said, referring to the act.
A White House spokeswoman pointed on Tuesday to a social media post by Mr. Trump attacking Judge Boasberg, an Obama appointee, and calling for his impeachment.
The Justice Department has also urged an appeals court to take Judge Boasberg off the case, while suggesting he cannot be trusted to protect classified information. (His past as the presiding judge for the Foreign Intelligence Surveillance Court means he has vast experience overseeing terrorism and espionage cases.) Attorney General Pam Bondi has accused him of supporting “terrorists over the safety of Americans.”
But putting aside whether there is proof that each Venezuelan man flown to El Salvador to be housed in a high-security prison is, in fact, a member of the gang, is it even true that Tren de Aragua is a terrorist group?
Last month, the State Department designated Tren de Aragua, along with several other drug cartels and gangs, as a “foreign terrorist organization,” obeying an earlier executive order by Mr. Trump.
But that was a notable change in how the executive branch has used the power granted by Congress to deem groups terrorist organizations. In the past, such groups were largely militant Islamists, along with some Communists and an offshoot of the Irish Republican Army.
By definition, terrorists are people who use criminal violence to further an ideological aim, seeking to coerce changes in policy.
Tren de Aragua is clearly a dangerous criminal organization, but by all appearances, it is not motivated by any particular ideology as it pursues human smuggling, kidnapping for ransom and drug trafficking. Rather, its agenda seems to be reaping illicit profits.
In an email, the White House press office listed a series of crimes Tren de Aragua members have been accused of committing, asking: “Do TdA members not seem like terrorists to the NYT? Odd hill to die on.”
Ali Soufan, a former F.B.I. agent who was the lead investigator targeting Al Qaeda during the period surrounding the terrorist attacks of Sept. 11, said the administration should present evidence that Tren de Aragua was trying to influence the actions of the U.S. government before calling them terrorists.
“This is an evil organization from everything I’ve read about them, but we have to be careful applying the charge of ‘terrorism’ only to actions that legally fit the crime otherwise the term risks losing its credibility and seriousness,” he said.
On Friday, before the transfers to El Salvador, Mr. Trump signed a proclamation invoking the Alien Enemies Act against Tren de Aragua. He said that he found and declared that the gang was perpetrating an invasion and “conducting irregular warfare” at the direction of the government of President Nicolás Maduro of Venezuela.
“I find and declare” these factual determinations, Mr. Trump said, “using the full extent of my authority to conduct the nation’s foreign affairs under the Constitution.”
Mr. Trump did not say whether there is any intelligence community assessment of Tren de Aragua’s relationship with the Venezuelan government, and if so, whether it supports his factual findings.
His most concrete assertion was that the gang underwent significant growth from 2012 to 2017, when Tareck El Aissami served as governor of the region of Aragua, and Mr. Maduro then appointed him as vice president.
The Justice Department filing to the appeals court cited Mr. Trump’s “findings” as the facts by which courts should evaluate the issue, including repeating the observation about Mr. Aissami. It added, “The president could properly find that given how significantly TdA has become intertwined in the fabric of Venezuela’s state structures, it is a de facto arm of the Maduro regime.”
But both documents omitted a seemingly material fact: Mr. Aissami is no longer part of the Maduro administration, which is prosecuting him for corruption. Nor did either mention that Mr. Maduro and his aides have expressed hostility toward Tren de Aragua.
In a hearing on Saturday, Judge Boasberg voiced skepticism about the administration’s arguments before he instructed the government to halt any deportations underway based on Mr. Trump’s order. He indicated that he found persuasive the arguments made by an American Civil Liberties Union lawyer. They included that the law applied only to hostile acts perpetrated by enemy nations and commensurate to war and was not relevant to illegal immigration or “nonstate actors like criminal gangs.”
Judge Boasberg ordered the government not to remove anyone based on the Alien Enemies Act, verbally telling the Justice Department to have any planes already in the air turned around. A written version of that order omitted the language concerning the planes.
After it became clear that planes carrying Venezuelans to El Salvador had not turned around, the administration appeared to make multiple arguments for why that should not count as defying a court order.
First, the administration said that the migrants were already in international airspace when the judge issued the written version of his order, so he lacked jurisdiction. It has not explained why that would make a difference for jurisdiction: The men remained in U.S. custody while in flight, and the judge’s order was directed at officials in charge of the operation.
But in a filing on Tuesday, the Justice Department put forward a different rationale: The men had already been “removed” the moment they left U.S. airspace, before the order. An official also told the judge that a third plane, which left Texas after the order, carried men who were subject to final removal orders, so they were not deported “solely” based on the 1798 act.
The administration has also suggested that Judge Boasberg had no legitimate authority to intervene. Courts typically “have no jurisdiction over the president’s conduct of foreign affairs, his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion,” Karoline Leavitt, the White House press secretary, said in a statement,
The Justice Department, in a brief, echoed the sweeping claim that, in certain matters of national security and foreign affairs, a president wields power that courts should not even review.
While judges and justices tend to be deferential to the executive branch in such areas, the Supreme Court has not only scrutinized such conduct by presidents, but also ruled against them.
The brief also cited a World War II-era case in which the Supreme Court said a German being repatriated under the Alien Enemies Act could not challenge his deportation in court. Still, that case arose in a declared war.
Mr. Trump’s lies and exaggerations date to his time as a bombastic real estate developer promoting his projects and himself. In ruling against Mr. Trump in 2023, a judge said he had persistently committed fraud, creating a “fantasy world” when describing the size and value his buildings.
He later rose in national Republican Party politics by spreading the lie that President Barack Obama was born in Kenya, not Hawaii.
And in his first term, Mr. Trump issued a steady stream of false claims about matters both trivial and momentous, be it the size of his inaugural crowd or the 2020 election winner. The Washington Post counted 30,573 false or misleading claims during his first term in office.
After a hearing before Judge Boasberg on Monday, Skye Perryman of Democracy Forward, which is helping represent the plaintiffs, criticized the factual premise of the government’s legal arguments.
“The president is not a king, and every American should be concerned by this illegal expansion of wartime efforts when we are not in fact at war,” she said.
