Stopping Trump Isn't Enough

It is one thing to stop Donald Trump’s lawlessness (e.g., ending deportation to CECOT), but it is far more difficult to hold accountable the officials responsible for harm inflicted on their victims.

Mahmoud Khalil, a Columbia University student and permanent resident, has been freed from his unjust and illegal detention. On Wednesday, he filed a claim for injunctive relief, asking the court to prevent deportation on a new charge against him concerning his immigration paperwork.

This sort of after-the-fact, concocted claim (akin to the human smuggling charge manufactured to distract from the government’s humiliating retreat in returning Kilmar Abrego Garcia from El Salvador) sure looks like an attempt to continue Khalil’s persecution at the hand of the Trump gang.

This sort of picayune charge is “rarely, if ever” brought against permanent residents, his complaint states—unless, of course, someone is the object of the MAGA administration’s ongoing “pattern of antagonism.”

Khalil’s chances of success appear strong. However, preventing future harm does not make up for the wrongs already perpetrated. Khalil told the Associated Press, “They are abusing their power because they think they are untouchable,” Khalil said. “Unless they feel there is some sort of accountability, it will continue to go unchecked.”

If the result of MAGA functionaries’ unconstitutional conduct is merely a court order for them to stop persecuting a particular individual, they have little to no disincentive to stop, and will continue systematically violating constitutional rights (especially after the Supreme Court’s ruling limiting nationwide injunctions).

Khalil’s legal team has a solution. On Thursday, his lawyers announced that Khalil has “filed a claim detailing the harm he has suffered as a result of his politically motivated arrest and detention…

The claim is a precursor to a federal lawsuit against the Trump administration, which he will bring under the Federal Tort Claims Act, a 1946 federal statute that allows individuals to sue the U.S. government for damages for civil law violations.” 

Khalil is seeking $20M in damages, “which he would use to help others similarly targeted by the Trump administration and Columbia University.” As an alternative to financial damages, he would accept “an official apology and abandonment of the administration’s unconstitutional policy.”

It alleges, “The administration carried out its illegal plan to arrest, detain, and deport Mr. Khalil in a manner calculated to terrorize him and his family.” He continues to suffer “severe emotional distress, economic hardship, damage to his reputation, and significant impairment of his First Amendment and Fifth Amendment rights” as a result of the arrest and 104 days of detention.

This is the first complaint for money damages in response to the Trump administration’s plot to snatch legal residents off the street, lock them up, and deport them based on the content of their speech. Khalil’s civil action is at least one way to assign blame to Trump's lackeys for their ongoing reign of terror against migrants.

While individuals such as Secretary of State Marco Rubio and Trump’s Grand Inquisitor Stephen Miller won’t be a dime out of pocket, at least a judgment awarding significant damages will enforce a modicum of accountability on a regime that runs roughshod over the Constitution, statutes, and even adverse court orders.

In another forum, a finding of criminal contempt against government lawyers for blowing past U.S. District Court Judge James Boasberg’s order to turn around the plane taking Abrego Garcia and others to El Salvador may provide another means to combat rank disobedience to judicial orders. Republicans demonstrated their trepidation about contempt actions when they tried (unsuccessfully) in the reconciliation negotiations to prevent such proceedings.

On that score, the Senate must decide whether Emil Bove’s alleged directions to Justice Department employees to flout the courts disqualify him for a seat on the 3^rd Circuit. In addition to filing a professional ethics complaint against him, denying him a judicial seat could thwart his ambition and create a disincentive for other government lawyers to follow his lead.

In Bove’s case, a whistleblower, bolstered by documentary evidence, alleges Bove played a key role in defying Judge Boasberg’s order. The evidence also indicated he was complicit in violating prisoners’ due process rights at CECOT and may have “seriously misled Congress about his conduct.” As Tom Jocelyn and Ryan Goodman at Just Security point out:

[S]everal of the whistleblower’s documents provide strong corroboration that Bove did suggest in the Mar. 14 meeting saying “fuck you” to a court that issued an injunction. That evidence directly contradicts Bove’s testimony, “I did not suggest that there would be any need to consider ignoring court orders.”

Whether it is money damages, contempt findings, professional sanctions, or embarrassing revelations that could deny confirmation for a plum federal court appointment, the courts, whistleblowers, plaintiffs’ attorneys, senators, and bar associations must find ways to punish MAGA operatives’ lawless behavior. Without adverse consequences, the Trump mob will continue its onslaught against the Constitution.

We are in this fix because Congress is controlled by spineless MAGA lackeys, and an unhinged MAGA majority on the Supreme Court has shielded Trump (and by extension his minions) from criminal liability, given him enough wiggle room to evade lower court orders, and facilitated a huge expansion of executive power.

Until voters can throw out MAGA lawmakers, install a constitutionally compliant president, and undertake meaningful Supreme Court reform, creative, alternative mechanisms may be the only way to halt or at least slow down Trump’s ongoing schemes to uproot the rule of law.

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-Jennifer Rubin, The Contrarian