Confusion reigns over midnight order in deportation case as SCOTUS produces muddled rulings, Trump admin makes nonsensical arguments, and Alito gripes

Alito and Thomas: The dissenters (AFP)

The U.S. Supreme Court (SCOTUS), in a ruling released early Saturday morning, placed a temporary pause on the Trump administration's efforts to deport immigrants residing in the United States. At the heart of the current controversy are Venezuelan nationals living mostly in certain parts of Texas. Both the SCOTUS order and the administration's response to it are  deeply flawed, leaving many questions about what might be ahead. Under the headline "What to know about the Supreme Court’s midnight Alien Enemies Act order," CNN's John Fritze and Devan Cole write: 

Less than two weeks after the Supreme Court allowed President Donald Trump to use a controversial 18th century wartime authority to speed deportations, the issue has rocketed back to the justices in a second short-fuse appeal with enormous potential consequences.

The situation was entirely foreseeable.

After handing down an opaque 5-4 order earlier this month that allowed both sides to claim victory, the nation’s highest court is being asked for a second time to halt the administration from using the Alien Enemies Act (AEA). That review will take place as lower courts begin to wrangle over what kind of notice the government must provide to those targeted under the act and what steps the migrants can take to fight it.

The court's order was unclear and muddled, and in a case involving basic human rights, no one should be surprised that Clarence Thomas and Samuel Alito jointed in dissent -- perhaps because both were up past their nap times. Fritze and Cole report that the whole process was a jumbled mess:

In a rare overnight order handed down by the Supreme Court early Saturday morning, a majority of justices blocked the Trump administration from deporting a group of immigrants in Texas. Two conservatives — Justices Clarence Thomas and Samuel Alito — dissented from the decision.

The brief order did not explain its reasoning. The court ordered the Trump administration to respond to the emergency appeal “as soon as possible,” which it did later Saturday. In the meantime, the court said, “The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court.”

The Trump administration responded later Saturday, telling the Supreme Court it wants the authority to remove the Venezuelans detained in Texas under laws other than the controversial Alien Enemies Act while the litigation over their potential deportations continues.

And the Supreme Court signaled it is likely to say more in coming days or weeks about what will happen to the migrants at the center of several fast-moving court cases over the Alien Enemies Act playing out in courtrooms in New York, Colorado, and Texas.

The White House on Saturday trained its attention on the lawsuits, rather than the Supreme Court itself.

The administration's "reasoning" in legal arguments has been well short of airtight. CNN provides examples:

“President Trump promised the American people to use all lawful measures to remove the threat of terrorist illegal aliens,” White House press secretary Karoline Leavitt said, adding, “We are confident in the lawfulness of the administration’s actions.”

The White House has alleged that the people it has deported under the act are members of the Venezuelan Tren de Aragua gang, but evidence proving as much has been scant. Government lawyers have cited tattoos on immigrants or clothing linked to gangs in court papers to allege criminality.

What are the points Karoline Leavitt is trying to make? (1) Trump promised the American people to "use all lawful measures" to remove the threat of "terrorist illegal aliens"; (2) Is a campaign promise supposed to have something to do with legal proceedings before the nation's highest court? How is one connected to the other? (3) If  Trump vowed to use "all lawful measures" to boot migrants back over the border, why is he doing it without due process? Does the White House think due process is not part of U.S. law? (4) If Karoline Leavitt is confident of the lawfulness of the admin's actions . . . well, so what? Leavitt has proven time and again to know precious little about the law, so any confidence she might have is irrelevant to these legal proceedings; (5) The administration for weeks has been citing tatoos and certain types of clothing as proof someone is a terrorist -- and Trumpers still are using that same tired argument. It isn't aging well. Here is more from CNN:

An uncertain order

The Supreme Court issued a murky, unsigned order on April 7 in another emergency appeal dealing with the Alien Enemies Act, a 1798 law Trump invoked to bypass the regular process required to remove certain people in the country illegally.

The court technically allowed the administration to continue to use the controversial law — a win for Trump. And it blocked a key legal pathway civil rights groups were attempting to use to challenge Trump’s invocation of the law so they could shut down its use wholesale.

At the same time, the court said migrants subject to deportation under the act were entitled to notice and an opportunity to challenge their removal through federal habeas corpus petitions — suits brought by people who claim they are being detained by the government unlawfully — marking at least a partial win for migrants.

How much notice? The court didn’t say. How to reconcile the fact that habeas petitions are typically filed by prisoners to seek release from detention, not to halt deportations? Near silence. And what about the more than 200 Venezuelans who were already rushed onto planes and deported to El Salvador? Not clear.

Thanks to SCOTUS' unwillingness to use clear language in its orders, litigants have been  flying blind. From CNN:

To be sure, the Supreme Court is often reticent to get into details on its emergency docket — and for good reason. Often the factual record is uncertain. And the justices are usually eager to avoid changing the law without a more thorough briefing and oral argument.

But the April 7 decision, perhaps prudent in its caution, nevertheless gave Trump a ton of wiggle room. The White House took all of it, claiming complete victory and starting the process of relying on the act again.

Following the Supreme Court’s lead, the American Civil Liberties Union filed a series of habeas lawsuits seeking to protect identified clients as well as “similarly situated” Venezuelans who could potentially be targeted under the Alien Enemies Act. Several lower courts — including one in New York and another in Texas — issued temporary orders blocking the administration from deporting people under the act while it considers the cases.

Those orders protect only migrants in the geographic regions covered by the federal courts in play.

If English-speaking Americans are confused by these proceedings, imagine what it's like for potential deportees who are receiving government notices written in English -- even though many of them speak only Spanish. Fritze and Cole write:

How we got here

This week, immigrant rights groups said a number of Venezuelan detainees in northern Texas not covered by any earlier orders began receiving notice from the government that they are subject to deportation under the act.

The ACLU has said those notices — now required by the Supreme Court — were in English, indecipherable to at least some of the Spanish-speaking detainees. The notices, the ACLU said, did not indicate how the people who received them could challenge their removal. The group said the detainees faced “imminent” removal, despite the Supreme Court’s direction that they have enough time to seek an independent review of their case.

Two immigrants filed a habeas petition in a federal district court in Abilene, Texas, on Wednesday, seeking a temporary order blocking their deportation and the removal of “similarly situated” people held at the Bluebonnet Detention Center in Anson, Texas.

US District Judge James Hendrix, whom Trump nominated to the bench in his first term, denied the request for the two migrants, noting the government had “answered unequivocally” that it did not intend to remove them, so they were not at immediate risk of deportation.

Hendrix said he “reserves decision” on whether the ACLU could protect a wider class of unknown migrants but said he would order written arguments on that question in “due course.”

Whether the groups can establish a “class” of migrants affected by the case is a technical but important point: Without a class, each migrant who receives notice of potential removal will have to file their own habeas petition and fight their case individually. Habeas petitions are notoriously difficult to win in federal court, and it will be a challenge for most immigrants to obtain lawyers.

Unsatisfied with the result — and perhaps untrusting of the Trump administration to keep its word — the ACLU appealed to the New Orleans-based 5th US Circuit Court of Appeals. A panel of appellate court judges in the conservative court denied the request.

The migrants then turned to the Supreme Court on Friday, filing their emergency appeal with Alito, who handles quick-turn appeals from the 5th Circuit.

Notably, the Supreme Court did not technically grant the ACLU’s request in its middle-of-the-night order, but it nevertheless gave the groups what they were seeking: a temporary halt on deportations at issue until it had more time to review the appeal. That decision doesn’t necessarily mean the migrants will win their case, only that they can’t be removed for now.

Between the case having multiple plaintiffs, in multiple jurisdictions, with the Supreme Court seemingly unable to produce clearly worded rulings, and the Trump admin pulling legal arguments out of its fanny . . . it is anyone's guess what is coming next. And who knows what Alito might come up with. From CNN: 

What happens next

The ball remains with the Supreme Court.

In its overnight order, the justices blocked the Trump administration from taking further action on the Texas detainees until it provides more clarity.

It also ordered the Department of Justice to respond to the ACLU’s request “as soon as possible.” The Justice Department did so Saturday evening, arguing the justices should deny the request to halt removals under the Alien Enemies Act.

“The government has agreed not to remove pursuant to the AEA those AEA detainees who do file habeas claims,” wrote US Solicitor General D. John Sauer, the Trump administration’s top appellate attorney. “This court should dissolve its current administrative stay and allow the lower courts to address the relevant legal and factual questions in the first instance — including the development of a proper factual record.”

Sauer, in other words, argued the case had moved too quickly for lower courts to establish the facts.

But as a backup argument, the Trump administration then told the high court it wants clarity that it may remove at least some of the same migrants under less controversial immigration laws. The Supreme Court’s order Saturday did not distinguish between deportations under the Alien Enemies Act and other laws that require normal due process before removing people from the country.

Sauer’s latest brief lacked much of the bluster of previous written arguments the administration has submitted to the Supreme Court and was relatively straightforward. The tone may reflect the unusual step the high court took in its order early Saturday shutting down the administration’s effort to quickly remove the migrants.

Alito’s late night retort

Alito, meanwhile, waited until late Saturday night to issue his dissent blasting his colleagues.

“Literally in the middle of the night, the court is­sued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order,” Alito wrote, joined by Thomas.

Alito said the American Civil Liberties Union, which is representing the immigrants, had “provided little concrete support” for the allegation that the migrants at issue were in danger of immediate removal.

“I refused to join the court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate,” Alito wrote.

Sen. Chris Van Hollen meets with Abrego Garcia in El Salvador as that country's president shows no sign of returning a man the U.S. admits was wrongly deported

 

Sen. Chris Van Hollen (right) meets with Kilmar Abrego Garcia

 

A U.S. Senator met yesterday with the Maryland man who was wrongly deported to El Salvador. Sen. Chris Van Hollen (D-MD) posted a photo on X of his meeting with Kilmar Abrego Garcia. Van Hollen said he will release more information about the visit when he returns to the United States. The latest updates on Van Hollen's efforts to gain Abrego Garcia's release from El Salvador's famously inhumane CECOT prison come from an article jointly published at Reuters and Yahoo! News under the headline "U.S. Senator Van Hollen meets wrongly deported man in El Salvador." Daniel Trotta and Kaniska Singh report:

Democratic U.S. Senator Chris Van Hollen met on Thursday with Kilmar Abrego Garcia, the man wrongly deported to El Salvador in a case that has pitted a defiant Trump administration against the courts and fanned the prospect of a constitutional conflict.

The senator posted on X an image of himself in El Salvador with Abrego Garcia, dressed in a collared shirt, jeans and a baseball cap, a day after being denied access to the notorious prison for gang members where he has been held.

"I said my main goal of this trip (to El Salvador) was to meet with Kilmar. Tonight I had that chance," the senator wrote in his post, but giving no indication of Abrego Garcia's health or state of mind.

"I have called his wife, Jennifer, to pass along his message of love," Van Hollen added. "I look forward to providing a full update upon my return."

The U.S. Supreme Court has directed the administration of President Donald Trump to facilitate Abrego Garcia's return after Washington acknowledged he was deported because of an administrative error.

Speaking of the U.S. Supreme Court, Van Hollen's visit drew the attention of an outspoken justice on the court. It also prompted lawyers for Abrego Garcia to deny allegations that he belongs to a criminal gang -- although that did not keep the White House from repeating the accusation, which appears to have no evidentiary basis. Trotta and Singh write:

In a statement apart from the ruling, liberal Supreme Court Justice Sonia Sotomayor said the government had cited no basis for what she called Abrego Garcia's "warrantless arrest," nor for his deportation or imprisonment in El Salvador.

Abrego Garcia's lawyers say he has never been charged with, nor convicted of, any crime, and deny the Justice Department's accusation that he belongs to the criminal gang MS-13.

But the government has given no indication it plans to seek his return and said it had no authority to release a man from a foreign prison, raising the potential for a constitutional conflict should Trump defy the highest court.

In a statement after the meeting, White House Deputy Press Secretary Kush Desai repeated the unproven accusation that Abrego Garcia was a member of MS-13.

"Chris Van Hollen has firmly established Democrats as the party whose top priority is the welfare of an illegal alien MS-13 terrorist," Desai said.

"It is truly disgusting. President Trump will continue to stand on the side of law-abiding Americans."

Another Trump official seemed to be irritated by the Van Hollen visit:

Trump's border czar, Tom Homan, told CNN the man belonged in prison, despite the Supreme Court directive.

"He's a citizen of El Salvador and he's in El Salvador. He's home," Homan said.

"I think we did the right thing, I think he is where he should be. Even if he came back ... he's going to be detained and he's going to be removed as per the order of removal."

Along with Abrego Garcia, the Trump administration has deported to El Salvador hundreds of people, mostly Venezuelans, whom it says are gang members, under the Alien Enemies Act of 1798, without presenting evidence and without a trial.

A U.S. district judge, James Boasberg, has already threatened administration officials with criminal contempt charges over the deportations.

Boasberg said the administration demonstrated "willful disregard" for his March 15 order, barring the deportations to El Salvador under the 1798 act.

Salvadoran officials have also shown no interest in releasing Abrego Garcia.

During a meeting with Trump at the White House on Monday, El Salvador's president, Nayib Bukele, said he had no plans to return Abrego Garcia.

Bukele also posted pictures of the encounter with Van Hollen on social media, followed by a post saying he would remain in the custody of the Central American country.

"Now that he's been confirmed healthy, he gets the honor of staying in El Salvador's custody," Bukele said.

Van Hollen, the U.S. senator from Maryland, where Abrego Garcia lived, arrived on Wednesday in El Salvador to meet senior officials and advocate for his release, but was told by Vice President Felix Ulloa he could not authorize a visit or a telephone call with Abrego Garcia.

It was not immediately clear what changed to allow the senator's access.

Abrego Garcia, 29, left El Salvador at age 16 to escape gang-related violence, his lawyers said, and received a protective order in 2019 to continue living in the United States.

For the second time in two days, Trump admin becomes the subject of a federal judge's contempt inquiry -- again driven by lack of due process

Judge James Boasberg (NY Times)

 

For the second time in two days, a federal judge has announced plans to begin a contempt inquiry into the Donald Trump administration's defiance of court orders. Both judges acted on deportation cases. The most recent such action came yesterday when James Boasberg, chief U.S. district judge for the District of Columbia, stated in court documents that he found sufficient grounds to hold the government in contempt.

The news comes with irony, given that Trump is a convicted felon and adjudicated rapist -- with his status in both cases having been widely reported long before the 2024 presidential election last winter. That race ended with Trump defeating Democratic contender Kamala Harris, allowing him to return to the White House for a second term after serving from 2017-2021. Less than three months into his second term, Trump finds himself involved in a case that could involve criminal contempt.

That is the Boasberg matter, where the contempt issue came to light one day after U.S. District Judge Paula Xinis announced in Greenbelt, MD, that she was beginning an inquiry into the Trump administration's defiance of her orders in the deportation to El Salvador of Maryland resident Kilmar Abrego Garcia. Xinis has scheduled two weeks of discovery in the case and appears to be considering both criminal and civil contempt.

Details on the contempt issue come from a jointly published article at AFP.com and Yahoo! News under the headline "US judge says 'probable cause' to hold Trump admin in contempt." Susan Stumme writes:

A US judge said Wednesday he had found "probable cause" to hold President Donald Trump's administration in contempt in a deportation case, raising the stakes in the White House's confrontation with the justice system.

The White House said it planned an "immediate" appeal to the decision by District Judge James Boasberg, who had ordered the government to halt flights of more than 200 alleged gang Venezuelan members to El Salvador.

Boasberg issued a temporary restraining order on March 15 to halt the deportations, which were carried out under an obscure wartime law, the 1798 Alien Enemies Act, which strips away the usual legal due process.

Boasberg stated that signs of probable contempt were "obvious" from examination of the case record. Stumme writes:

In a written opinion, the judge cited evidence that the government had engaged in "deliberate or reckless disregard" of his order when it proceeded with the flights.

"Defendants provide no convincing reason to avoid the conclusion that appears obvious... that they deliberately flouted this Court's written Order and, separately, its oral command that explicitly delineated what compliance entailed," he wrote.

The administration's actions were "sufficient for the court to conclude that probable cause exists to find the government in criminal contempt," Boasberg wrote.

The judge said the government would be offered a final chance to "purge such contempt" or face further court action.

Trump's dissatisfaction and anger with judges has been apparent for months, and the administration apparently is prepared to continue with a defiant stance, Stumme reports:

Since his return to the White House in January, Trump has flirted with open defiance of the judiciary following setbacks to his right-wing agenda, with deportation cases taking center stage.

"We plan to seek immediate appellate relief," White House Communications Director Steven Cheung said in a statement after the judge's ruling.

"The President is 100 percent committed to ensuring that terrorists and criminal illegal migrants are no longer a threat to Americans and their communities across the country."

As with the case before Judge Xinis, Boasberg has voiced concerns about the administration's history of detaining and deporting residents without due process -- in the form of a court hearing, with the protections such a proceeding provides. For the moment, Team Trump does not seem to be concerned that the law requires due process before a  deportation is executed. But Boasberg seems serious about making sure the administration takes such issues into consideration. From the AFP/Yahoo! report:

In invoking the Alien Enemies Act -- which had only been used previously during the War of 1812, World War I and World War II -- Trump said he was targeting transnational gangs he had declared foreign terrorist organizations.

That included the Venezuelan group Tren de Aragua, but lawyers for several of the deported Venezuelans have said that their clients were not gang members, had committed no crimes and were targeted largely on the basis of their tattoos.

Trump has routinely criticized rulings that curb his policies and power, and attacked the judges who issued them, including Boasberg.

The Republican president said Wednesday that US courts are "totally out of control," writing on his Truth Social platform: "They seem to hate 'TRUMP' so much, that anything goes!"

His administration is also under fire over its admission that Kilmar Abrego Garcia, who was living in the eastern state of Maryland and married to a US citizen, was deported to a notorious prison in El Salvador due to an "administrative error."

A judge has ordered Trump to "facilitate" his return, an order upheld by the Supreme Court, but the government has said the court did not have the authority to order it to have him returned.

Trump has alleged that Abrego Garcia is "an MS-13 Gang Member and Foreign Terrorist from El Salvador," while Press Secretary Karoline Leavitt claimed that he was "engaged in human trafficking."

The man has never been charged with any crimes.

Faced with a backlash on the Abrego Garcia case, Trump admin assigns Karoline Leavitt to make it better by asking, "Who needs due process anyway?"

Karoline Leavitt (whitehouse.gov)

The White House called a press briefing yesterday in response to backlash prompted by Donald Trump's inflammatory statements in a Monday Oval Office session regarding the Kilmar Abrego Garcia deportation to El Salvador. Unfortunately, the administration could not get its facts straight, likely leaving the press and the public shaking their collective heads. 

One problem came when Press Secretary Karoline Leavitt was assigned to address issues related to the controversy at hand -- and she proved to be not up to the task. Leavitt was so clueless about the subject matter that . . . well, the briefing joined a growing list of embarrassing moments that have plagued Trump White House 2.0.

How bad was it? The Hill provides the basics from reporter Brett Samuels, under the headline "White House: Abrego Garcia deportation to El Salvador ‘always going to be end result'."

We will use Samuels' story to show how Leavitt ran off the tracks. Then we will turn to the words of someone who actually knows what she's talking about -- University of Baltimore Law Professor Kim Wehle, who was quoted extensively in an NPR piece titled "The risk Kilmar Abrego Garcia's case poses for citizens, according to legal scholar. That is an alarming headline, and it shows that -- even in an era of numerous troubling legal cases -- the Abrego Garcia matter is particularly gross. In fact, one legal expert refers to Trump's actions and statements related to the case as an "abomination."

We will use The Hill and NPR articles to help clear up the muddy waters that Trump and Leavitt created. Our hope is that we provide some clarity so the public can better understand a profoundly important and complex court case, one that is international in scope. (Note: We even will use "oopsie," a word that El Salvador President Hayib Bekule introduced to the fray.)

Let's start with Brett Samuels' account of the Karoline Leavitt press briefing:

The White House asserted Tuesday there was no scenario in which a Maryland man whose deportation to El Salvador has made national headlines and spurred court battles would end up living a “peaceful life” back in the United States. 

Press secretary Karoline Leavitt expressed exasperation over media coverage of Kilmar Abrego Garcia, a Salvadoran national whom administration officials acknowledged in a court filing they mistakenly deported. Officials have since changed their tune on that matter, and the lawyer who wrote of the “administrative error” has since been put on leave.

(a) Leavitt goes "oopsie" -- Like others in the Trump administration, Leavitt does not seem to understand that the Abrego Garcia case involves a fairly important concept in our legal system; it is called "due process of law." It is a constitutional right, and Garcia was mercilessly deprived of it in what has amounted to a state-sanctioned kidnapping.

(b)  Kim Wehle explains via NPR --

The ongoing legal saga of a wrongly deported immigrant from El Salvador creates a situation where President Trump can deny due process to anyone — not just immigrants living in the U.S. without legal status — if he removes them from the country, warns a constitutional scholar.

The case is now "about whether [Trump] feels like giving someone their rights or shipping them to a foreign country," University of Baltimore School of Law professor Kim Wehle told Morning Edition.

Kilmar Abrego Garcia, a Salvadoran immigrant who was granted protection from deportation by a judge in 2019, was arrested and deported in March. He entered the U.S. without status and lived in Maryland for almost 15 years. Abrego Garcia had no criminal record, and the Trump administration admitted his removal was due to an "administrative error."

Wehle broke down why the Trump administration is in no rush to bring Abrego Garcia back to the U.S. and the risk she believes this legal reasoning poses for U.S. citizens.

The Supreme Court didn't order Trump to ensure Abrego Garcia's return to the U.S.

In its ruling, the Supreme Court sided with a lower-court judge who ordered the Trump administration to return Abrego Garcia to the U.S., but Wehle said the Supreme Court drew a distinction between "facilitating" and "effectuating."

"So I think Trump took the bait and said, 'Listen, I'm trying, but I don't have to. The court didn't direct that. I do that, and I can cite you my power over foreign affairs, and there's nothing anybody can do about it' " Wehle said.

On Monday, Secretary of State Marco Rubio told reporters at an Oval Office meeting with El Salvador's President Nayib Bukele that courts have no right to conduct foreign policy.

The Lowdown: Leavitt had no way of knowing Abrego Garcia would never wind up living a peaceful life in Maryland. He lived a peaceful life there for 15 years, and he was entitled to a court proceeding that would have determined his future. That is part of due process, and the Trump admin acted unlawfully by depriving him of a constitutional right.

Here is more from Brett Samuels on the Leavitt press briefing:

Leavitt also indicated Abrego Garcia would simply be deported again if he was returned to the U.S.

“Deporting him back to El Salvador was always going to be the end result. There is never going to be a world in which this is an individual who is going to live a peaceful life in Maryland,” Leavitt told reporters at a briefing. 

“Because he is a foreign terrorist and an MS-13 gang member. Not only have we confirmed that, [El Salvador] President [Nayib] Bukele yesterday in the Oval Office confirmed that as well,” Leavitt continued. “So he went back to his home country, where he will face consequences for his gang affiliation and his engagement in human trafficking. I’m not sure what is so difficult about this for everyone in the media to understand.”

(a) Leavitt goes "oopsie" -- Leavitt wants to know why the media finds it difficult to understand what she is saying? Maybe it's because the Trump admin has provided little or no evidence to support its claims -- that Abrego Garcia is a foreign terrorist, a gang member, a human trafficker. My question is this: Why are Leavitt and Trump so afraid to see Abrego Garcia go before a court? Leavitt seems certain that the detainee, if he returned to the U.S., would be deported again. But if the constitution had been followed, with a court determining there were no grounds for deportation, Abrego Garcia would have returned to his peaceful life.

 

(b) Kim Wehle explains via NPR --

Wehle wrote a column recently in which she argued that the Supreme Court made a big constitutional leap in its ruling by suggesting the president doesn't have to return Abrego Garcia as long as it cites foreign policy.

"The fact that the president has foreign-affairs authority implied in the Constitution doesn't supersede that core foundational constitutional right that's guaranteed in the plain language of the Constitution," Wehle said.

Everyone in the U.S., including those without legal status, have constitutional rights to due process under the Fifth and Fourteenth Amendments, Wehle said.

(c) The Lowdown: Again, Leavitt shows that she knows next to nothing about the constitution -- which is understandable given that her boss doesn't seem to know even that much about the nation's guiding document.

Let's return to Brett Samuels and the Leavitt press briefing:

Abrego Garcia’s family has asserted he is not a member of MS-13 like the government has claimed, but rather fled from El Salvador as a teen to escape gang violence. The government’s assertion is based on a tip from a confidential informant claiming he was involved with the gang in New York, though Abrego Garcia has never lived there. 

The Supreme Court last week determined the Trump administration must “facilitate” the return of Abrego Garcia. So far, there’s been no indication that the administration has taken any action that could help lead to his return.

During an Oval Office meeting Monday with the president of El Salvador, Trump administration officials argued it was up to El Salvador whether to return Abrego Garcia.

(a) Leavitt goes "oopsie" -- This goes to the facts of a potential court case, as asserted by Abrego Garcia's family. These are the type of allegations Trump lawyers would have to counter before a judge. If they can't do it, the detainee no longer is detained -- and he and his family likely have a heckuva lawsuit against the government, maybe even Trump personally. 

(b) Kim Wehle explains via NPR -- 

"[Due process] dates back to the Magna Carta in England in 1215. And the idea is that you get notice of an offense and an opportunity to be heard before the government can take your liberty away," Wehle added.

"So imagine this is your brother and he gets picked up off the street by the cops. The first question he's going to say is, 'what did I do wrong?' And they don't answer," Wehle said. "And the second question he's going to say is, 'I want to say my side of the story here. I shouldn't be put in prison.' And that basic constitutional guarantee was admittedly deprived here."

(c) The Lowdown -- A "constitutional guarantee was admittedly deprived here"? Why don't Trump, his staff members, and lawyers understand that and do everything in their power to bring Abrego Garcia home -- just as a matter of human decency? Maybe they don't have human decency? Maybe they are fine letting an unlawfully deported man rot in the inhumane conditions of El Salvador's notorious CECOT prison.

(d) Epilogue --  Let's give the final word to Kim Wehle, as she addresses, via NPR, an issue that should be of concern to every American:

Why Abrego Garcia's case should concern U.S. citizens

Wehle said the Trump administration could apply the principle of removing someone from the country — including citizens — potentially depriving them of the right to due process, a constitutional right present at the founding of the country.

"The framers, the revolutionaries, rejected an unlimited monarchy where the power came from God," Wehle said. "And people had to just hope that the next king … was benevolent and not malevolent, because essentially your rights depended on being in good graces with the king."

 

 

 

 

 

 

 

Judge Paula Xinis flashes anger at Trump team's defiance of her orders in Abrego Garcia case, but she will consider contempt issue after 2 weeks of discovery

(YouTube)

 

A federal judge yesterday ripped into Trump administration officials for their inaction in the Abrego Garcia deportation case involving El Salvador and its president, Hayib Bukele. During a hearing in Greenbelt, MD, U.S. District Judge Paula Xinis made little attempt to hide her anger at brazen defiance of her orders from the White House. Still, Xinis did not announce a ruling on possible contempt of court and scheduled two weeks of discovery before publicly addressing that issue -- and others.

In an article at thehill.com -- under the headline "Judge orders Trump officials’ depositions, blasts inaction in Abrego Garcia case" -- Zach Schonfeld and Rebecca Beitsch report:

A federal judge Tuesday ordered depositions from several Trump officials, blasting the administration for failing to take any steps to secure the return of a Maryland man wrongly deported to a Salvadoran prison.

During a hearing, U.S. District Court Judge Paula Xinis repeatedly clashed with Drew Ensign, an attorney with the Justice Department, as the judge contended the government had flouted her orders demanding updates on efforts to facilitate Kilmar Abrego Garcia’s return.

“What the record shows is that nothing has been done. Nothing. I asked for reports from individuals with direct knowledge and I’ve gotten very little information of any value,” the judge said, noting that she gave “a very simple directive” for updates on steps the government had taken.

Xinis, an Obama appointee, said she was holding off at this juncture on deciding whether the government should be held in contempt but would still rule down the road. 

For now, the judge ordered the administration to respond to interrogatories and document production requests. She also ordered the four government officials who signed affidavits in the case to sit for depositions by April 23, giving Abrego Garcia’s lawyers a chance to question key immigration officials in the administration.

Xinis seemed to almost suppress a guffaw when a Trump lawyer suggested he would appeal her ruling. In fact, the judge and the lawyer, Drew Ensign, tangled on a number of issues throughout the hearing -- perhaps because Ensign had the unenviable task of presenting the administration's dubious arguments -some of which bordered on the absurd:

Ensign signaled the administration may assert legal privileges to avoid at least one of the depositions. He also suggested the government may appeal Xinis’s order, saying “we don't believe discovery is appropriate.”

“You lost. This is now about the scope of the remedy,” Xinis said, adding that there is nothing to appeal.

Abrego Garcia was protected under a 2019 immigration court ruling from being deported to El Salvador, and the Trump administration has acknowledged mistakenly deporting him there last month. Citing an informant, the administration accuses the man of being a part of MS-13, but Abrego Garcia’s family contests any gang ties.

The hearing was largely focused on whether the Trump administration had complied with a Supreme Court ruling that largely upheld an earlier order from Xinis, saying the administration must “facilitate” his return from CECOT, a notorious prison in El Salvador known by its acronym in Spanish.

Ensign said Xinis should consider the term in the narrower sense used in immigration law, suggesting the U.S. could only help the imprisoned man if he were able to escape CECOT and present himself before U.S. officials.

The Trump administration had also argued that they are unable to push a foreign country to release someone in their custody — though the U.S. has paid El Salvador $6 million to imprison Abrego Garcia and more than 200 other men at CECOT.

“If he appears at a port of entry or U.S. Embassy we will facilitate his return,” Ensign said.

Xinis responded that the argument “flies in the face of the plain meaning of the word.”

“The bottom line is it was a very simple directive. My question, that the high court squarely affirmed I can ask, is what have you done? I’ve gotten nothing. I’ve gotten no real response, nor have I gotten any legitimate reason.”

Ticking off a judge generally is not considered a wise courtroom strategy, but once Ensign got started, he could not seem to stop himself. In all fairness, it long has been public knowledge that serving as a lawyer on Donald Trump's behalf is a thankless task:

Ensign also pointed to an Oval Office meeting between President Trump and Salvadoran President Nayib Bukele in which the Central American leader said he would not return Abrego Garcia.

Xinis said she did not understand why the Justice Department submitted a transcript of the meeting, as it did not answer her question about what efforts were being undertaken. A portion of the meeting was on camera, in front of reporters.

“No press release is going to move the court,” she said.

Xinis suggested a fast pace for the depositions and review of discovery — something that would ultimately put her on a path to determining whether to hold anyone from the Trump administration in contempt.

“We’re going to move. There will be no tolerance for gamesmanship and grandstanding,” she said.

“There are no business hours while we do this — there are going to be two intense weeks of discovery,” she added later.

“Cancel vacation, cancel other appointments. I’m usually pretty good about that in my courtroom, but not this time. It won’t be a convenience issue.”

The hearing fell exactly one month since Abrego Garcia was put on a flight to El Salvador, and his family has not been able to reach him since.

Jennifer Vasquez Sura, Abrego Garcia’s wife, addressed his absence ahead of the hearing, noting how much he was missed by the couple’s three children.

“You should have been here leading our Easter prayers. Instead I find myself pleading the with Trump administration and the Bukele administration: Stop playing political games with the life of Kilmar. Our family is torn apart during this scary time and our children miss their dad so much.”

El Salvador's Nayib Bukele becomes the latest object of Trump's adoration for "strongmen," playing to the U.S. president's twisted taste for violence and lawlessness

Bukele and Trump: Two thugs who deserve each other.

Donald Trump long has expressed admiration for authoritarian leaders. After an Oval Office visit yesterday from a relative unknown on the world stage, we will have to make room for another strongman ruler. How did Trump become smitten this time? We learn the details in a jointly published article at Politico and Yahoo! News under the headline "Trump, in a rare move, deferred to another world leader. It’s a clear legal play; El Salvador President Nayib Bukele is urging Trump to emulate his iron-fisted playbook." The reporting triumvirate of Kyle Cheney, Josh Gerstein and Hassan Ali Kanu explains:

Move over Kim Jong Un, Vladimir Putin and Viktor Orban. Donald Trump’s latest strongman bromance is with “President B.”

Though Trump has long admired foreign authoritarians, El Salvador President Nayib Bukele’s repressive regime is in some ways the beta test for Trump 2.0. Bukele calls himself the “world’s coolest dictator.” Trump said he would be a dictator on Day 1. And Trump has floated or deployed many of the same tactics Bukele used to consolidate power: removing judges, intimidating political adversaries, bypassing due process and evading term limits.

Now, Bukele is actively helping Trump sidestep court orders in the United States.

During a White House visit Monday in which the two leaders bantered like old friends, Bukele insisted on one thing: He will not release Kilmar Abrego Garcia, a native Salvadoran who was living in Maryland until the U.S. illegally deported him last month. The upshot of that declaration: It gives Trump cover to maintain that he is powerless to implement a judge’s directive that the U.S. “facilitate” Abrego Garcia’s immediate return from a brutal El Salvador prison. The Supreme Court upheld that directive last week.

In short, Bukele is helping Trump break the law by defying a court order. Is that the kind of company a U.S. president should be keeping? The answer is no. But given Trump's shaky judgment -- the kind that led him to be a convicted felon and adjudicated rapist -- we probably should not be surprised that he would cozy up to a glorified thug such as Bukele? Is our assessment too harsh? Consider the following from a 2024 Associated Press report:

The human rights organization Cristosal says that at least 261 people have died in prisons in El Salvador during President Nayib Bukele’s 2 1/2-year-old crackdown on street gangs.

Under a state of emergency originally declared in 2022 and still in effect, Bukele’s government has rounded up 81,110 suspected gang members in sweeps that rights groups say are often arbitrary, based on a person’s appearance or where they live. The government has had to release about 7,000 people because of a lack of evidence.

The group said in a report that, as of April 15, 88 of the 261 deaths “may have been the result of a criminal act,” though it did not specify what those acts may have been.

The report said 87 of the deaths were due to illnesses, 14 were apparently “acts of violence” and no cause could be immediately identified for the other 72.

Building a society on democratic principles does not appear to be a high priority for Bukele. Trump is not big on democratic principles either, so it's little wonder the two leaders get along famously. Yesterday's meeting was driven by what amounts to a state-sanctioned kidnapping . . . by the United States. And Trump showed no signs of being concerned about it. The Politico reporting team described the administration's tactics as "summary deportations," where due process plays little, if any, role. The Cheney/Gerstein/Kanu team writes:

Trump’s “nothing I can do here” stance is unusual for a president who prides himself on strong-arming other world leaders to do his bidding. And it escalates a clash with the courts in advance of a crucial Tuesday hearing before U.S. District Judge Paula Xinis, who ordered Abrego Garcia’s return and is growing frustrated with the administration’s recalcitrance.

Hours after Bukele’s White House visit, the Trump administration quoted some of his comments in a daily report Xinis has demanded. Also in that document, the acting general counsel at the Department of Homeland Security, Joseph Mazzara, declared that “DHS does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation.” The filing included no information in response to Xinis’ substantive questions.

The burgeoning partnership between Trump and Bukele is not limited to Abrego Garcia. Trump sent hundreds of other deportees to El Salvador last month, many without due process. And on Monday, he intensified his threats of lawless deportations even further: He openly mused about sending U.S. citizens to the Salvadoran prison.

That Trump would even think of sending U.S. citizens to a prison in El Salvador, under Bukele's control, shows how little regard he has for the rule of law. It also suggests Trump is becoming more unhinged and dangerous by the day. From Politico/Yahoo!:

“Sending U.S. citizens to another country’s prison that has significant human rights concerns and does not meet our constitutional standards for conditions is illegal,” said Lauren-Brooke Eisen, senior director of the Justice Program at the Brennan Center for Justice. “It would also violate the First Step Act, which President Trump signed in 2018 and mandates that the federal government place people in ‘a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.’”

Pushing legal limits

Even without casting out U.S. citizens, Trump has tested the boundaries of his legal authority to deport foreign nationals without due process. He has invoked the Alien Enemies Act of 1798, a rarely used wartime power, to send hundreds of Venezuelan nationals and other foreign citizens he’s deemed terrorists or gang members into the open arms of Bukele’s government. Salvadoran officials quickly — with cameras rolling — shackled, shaved and shuttled them into the massive detention facility known as the Terrorism Confinement Center.

Trump’s summary deportations, however, appear to have been riddled with errors that have raised alarms about whether the administration is sending the wrong people to potentially indefinite imprisonment in brutal conditions outside the protections of the U.S. Constitution. The Justice Department has already acknowledged in court that Abrego Garcia was deported in violation of a 2019 immigration judge’s order that found he could not be sent there due to potential persecution by a local gang. Trump immigration and Justice Department officials, including Solicitor General John Sauer, have repeatedly called the deportation an “administrative error.”

But top White House adviser Stephen Miller contradicted that admission Monday.

“He was not mistakenly sent to El Salvador,” Miller said on Fox News, adding: “This was the right person sent to the right place.”

Amid the conflicting statements from the Trump administration, Bukele muddied the waters further Monday by disclaiming that even he lacks the power to return wrongly deported people currently held in his country.

“How can I smuggle a terrorist into the United States?” Bukele asked about Abrego Garcia. “I don’t have the power to return him to the United States.”

The implication of the leaders’ rhetoric is a remarkable catch-22: Both the American and Salvadoran governments are asserting they have no authority to fix what multiple judges have found to be a grievous error.

Xinis, an Obama appointee to the federal bench in Maryland, is one of those judges. What happened to Abrego Garcia, she wrote, “shocks the conscience.” She has scheduled another hearing for Tuesday afternoon as lawyers for Abrego Garcia urge her to hold Trump administration officials in contempt for defying her orders.

Before the press was allowed into the Oval Office yesterday, the two presidents had a mostly private discussion that revealed a lot about both of them -- and it wasn't pretty. Cheney/Gerstein/Kanu write:

Trump sees value in violent videos

Trump offered various reasons Monday for embracing El Salvador’s prisons, including that doing so could save the U.S. money and that they appear to be more secure than U.S. facilities. But it was evident that what he most appreciates about Bukele’s approach is the imagery of prisoners being roughly handled by guards, having their heads shaved and being forced into massive group cells.

Speaking in quiet tones to Bukele before the press corps was ushered in, Trump raised the issue of sending Americans there.

“The homegrowns are next,” Trump could be heard saying on a live video feed sent out by Bukele’s office. “You got to build about five more places.”

“Yeah, we’ve got space,” Bukele replied, drawing scattered laughter from U.S. officials in the room.

Trump then gushed over the slickly edited, Hollywood-style videos Bukele’s operation has cranked out for each batch of prisoners the U.S. has dispatched there in recent weeks.

“I’ll tell you who’s good: whoever sends us those tapes that you get. They become sensations in this country,” Trump said. “Getting out of those planes, that’s what people want to see: Respect, they want to see respect. … Whoever does that does a great job.”

Trump even compared the videos to the epic films of Cecil B. DeMille.

Homeland Security Secretary Kristi Noem, who traveled to the Salvadoran prison and recorded a social-media video in front of one of the group cells, also highlighted the propaganda value.

“It’s been a powerful message of consequences,” she said. “This is a clear consequence for the worst of the worst.”

Bukele’s bombast

Bukele, for his part, has deftly associated himself with the key figures in Trump’s MAGA orbit to solidify his credibility with the president. On X, he regularly interacts with and reposts Elon Musk, former congressman Matt Gaetz, and right-leaning journalists who have posted favorably about the deportation efforts.

And Bukele has used social media to revel in helping Trump circumvent orders from U.S. courts. When a judge ordered planes carrying Venezuelan deportees last month to either turn around or bring those prisoners back to the U.S., Bukele responded on Twitter: “Oopsie…too late,” followed by a tears of joy emoji.

Bukele publicly floated the idea of taking in American-citizen prisoners in February, writing on X that his country was prepared to help the U.S. “outsource part of its prison system … in exchange for a fee.”

“The fee would be relatively low for the U.S. but significant for us, making our entire prison system sustainable,” he said.

While violent crime in the U.S. is at or near record lows, Bukele portrayed the country as besieged by criminals and was explicit Monday that the U.S. should emulate the approach of El Salvador, which now has the highest per capita incarceration rate in the world.

“You have 350 million people to liberate. To liberate 350 million people, you have to imprison some,” Bukele said. “We’re very eager to help. … We know that you have a crime problem, a terrorism problem that you need help with. And we’re a small country but, if we can help, we will do it.”