As the night wore on, it became increasingly clear that CBP was defying Brinkema’s ruling. Lawyers concluded that that meant someone was in contempt of court. The judge could theoretically send in federal law enforcement officers to force CBP to let the lawyers meet with the detainees. But sending in the U.S. Marshals—who are part of the Department of Justice—to take on Customs and Border Patrol—which is part of the Department of Homeland Security—would have been a bureaucratic clash of the titans. And, like everything else that night, it would have been unprecedented. It didn’t happen.
Though detainees were slowly being released, lawyers were disturbed that they couldn’t meet with them. What if CBP tried to coerce detainees into signing paperwork that could jeopardize their legal status? Release wasn’t enough. A federal agency was defying a federal judge, and no one was quite sure what to do.
Then at around 11:45 pm, New Jersey Senator Cory Booker showed up.
He had come to get the travelers out of detention, “or at least access to an attorney,” he told The Daily Beast.
Then he disappeared down a hallway blocked off by police, back to where the CBP officials had quarantined themselves.
Booker stayed back there for about half an hour, and then he pushed through the crowd of roaring protesters and—flanked by glowering policemen—addressed the crowd. After a few opening words, he held up a copy of Brinkema’s order.
“I am now of the belief that though this was issued by the judicial branch, that it was violated tonight,” he said. “And so one of the things I will be doing is fighting to make sure that the executive branch abides by the law as it was issued in this state and around the nation. This will be an ongoing battle.”
The crowd cheered.
“We see tonight what I believe is a clear violation of the Constitution,” he continued. “And so clearly tonight we have to commit ourselves to the longer fight. Clearly tonight, we have to commit ourselves to the cause of our country. Clearly tonight, we have to be determined to show this world what America is all about.”
Asked by The Daily Beast what CBP officers had told him about why they wouldn’t let detainees see their lawyers.
“They told me nothing, and it was unacceptable,” he said. “I believe it’s a Constitutional crisis, where the executive branch is not abiding by the law.”
A source familiar with Booker’s exchange with CBP officials told The Daily Beast that officials with the agency refused to see him face to face. Instead, Booker wrote questions on a piece of paper which he handed to police officers, and those officers gave the paper—along with a copy of Brinkema’s ruling—to CBP officials. Those CBP officials then wrote out their answers to the senator’s questions, according to the source. The source described it as a half-written, half-spoken game of telephone.
An executive agency defying the ruling of a federal judge, and a U.S. senator trying—unsuccessfully—to make that agency comply.
