Justice Department tells federal judge it might invoke state secrets act on high-profile deportation case

The Justice Department said Friday it is considering invoking the state secrets privilege in its ongoing court battle over the Trump administration’s deportation flights to El Salvador, a tool that could allow them to withhold certain information for national security purposes.

In a declaration filed Friday morning, U.S. Deputy Attorney General Todd Blanche told U.S. District Court Judge James Boasberg that he is aware of the Cabinet-level discussions invoking state secrets privilege. 

Invoking that privilege “is a serious matter that requires careful consideration of national security and foreign relations, and it cannot properly be taken in just 24 hours,” Blanche said. 

The declaration came after Boasberg had issued a Thursday deadline for the court to file information about deportation flights that sent Venezuelan nationals to El Salvador over the weekend, around the same time he issued an emergency court order temporarily blocking the Trump administration from doing so. 

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Boasberg said in a blistering order Thursday evening that the Trump administration both failed to comply with the noon deadline for information – even after he gave the administration the option to file the information under seal – and noted that the court was instead sent only a six-paragraph declaration from a regional ICE officer in Texas, who said that the Trump administration is considering invoking the “state secrets privilege” in the case. 

Boasberg decried that declaration as “woefully insufficient,” noting Thursday that regional ICE officers cannot be talked to inform the court of high-level Cabinet discussions and suggested someone higher up in the federal government should do so. 

Blanche’s filing comes just hours before government attorneys are due in court Friday afternoon to testify before Boasberg in a hearing over their motion to vacate the case.

Boasberg noted in a blistering order Thursday that the government had “again evaded its obligations” in failing to submit materials he requested about the flights, even after he extended the deadline for them to do so and said they could file the materials under seal.

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At issue is whether the government failed to comply with his emergency restraining order Saturday, which blocked the Trump administration from using a 1798 wartime law to deport Venezuelan nationals, including alleged members of the gang Tren de Aragua, for a period of 14 days. Boasberg also ordered any flights in the air to return to U.S. soil immediately.

Hours later, however, a plane carrying hundreds of U.S. migrants, including Venezuelan nationals removed under the law in question, arrived in El Salvador. 

In the days since, government lawyers have refused to share information in court about the deportation flights, and whether the plane (or planes) of migrants knowingly departed U.S. soil after the judge ordered them not to do so, citing national security protections. 

Boasberg previously asked government lawyers to submit information on how many planes departed the U.S. on Saturday carrying people deported “solely on the basis” of that proclamation, how many individuals were on each plane, where the planes landed, what time each plane took off from the U.S. and from where.

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He previously warned the Trump administration of consequences this week if it were to violate his order. The Trump administration, for its part, is challenging his order in appellate court Monday.

Still, at least one plane with deported migrants touched down later that evening in El Salvador. “Oopsie, too late,” Salvador President Nayib Bukele said in a post on X.