Experts highlight law that could smash key argument in Trump deportations case

Three law school professors are disputing a claim from President Donald Trump's administration that information regarding immigrants sent to an El Salvador prison is classified.

In court last month, the Trump administration invoked the “state secrets” privilege when a federal judge demanded information about immigrants deported to an El Salvador prison under the Alien Enemies Act, reported CBS News.

In a March filing from the Justice Department, lawyers wrote, “no further information will be provided” to the federal court in Washington, D.C., due to the privilege.

This week, Politico reported that Justice Department lawyer Drew Ensign wrote in a Sunday filing, “It would be inappropriate for this Court to hastily order production of these sensitive documents."

But in an extensive analysis for Lawfare, Professors Curtis Bradley, Jack Goldsmith and Oona Hathaway argued that the administration must comply with a 2022 statute that mandates disclosure of any deals Trump has worked out with El Salvador's president, Nayib Bukele.

The transparency statute "imposes on the executive branch a duty to disclose to Congress and to publish certain binding and nonbinding executive agreements within specified time periods," the legal experts wrote.

The matter has some bearing in the case of a Maryland man, Kilmar Ábrego García, who is currently in an El Salvadoran jail. The government admitted in court that it had accidentally deported him. The lawyers for García's family have also requested documentation, according to Newsweek.

"It is possible that the executive branch views the agreement as not legally binding. But even if so, it still has a duty under the statute to disclose and publish nonbinding agreements if they 'could reasonably be expected to have a significant impact on the foreign policy of the United States,'" cited the law school professors.

"The State Department’s regulations specify that among the factors to be considered in determining whether an agreement is covered include 'whether, and to what extent, the instrument . . . affects the rights or responsibilities of . . . individuals in the United States; . . . and is of Congressional or public interest,'" they explained. "An agreement to house a large number of migrants removed from the United States to a notorious supermax prison in another country plausibly meets this standard."

However, they noted that even if the administration maintains the agreement doesn't fall under the statute, there's another route.

"The [2022] transparency rules require the executive branch to disclose a nonbinding agreement if it is 'the subject of a written communication from the Chair or Ranking Member of either of the [congressional foreign affairs] committees to the Secretary,'" said the Lawfare post.

It means Democrats can obtain a copy of the agreement. Sen. Jeanne Shaheen (D-NH) has already requested a copy of the agreement, according to a letter posted to her Senate website. The disclosure to Congress applies to classified information, too.

Read the full report here.