There is a lot going on in America these days with Donald Trump flinging shit right and left like a howler monkey on a rampage.
As Meidas Touch summarized this morning:
Trump’s trade wars are going horribly. The retaliation by the rest of the world has overwhelmed Trump. Foreign travel to the United States has diminished to a halt. Trump is driving the United States economy and markets into the ground. Trump is disobeying Supreme Court rulings and federal court orders. His regime is deteriorating from the weight of their own ill-fated kakistocracy design.
From destroying endangered species habitats to destroying NIH research, undermining social security, cutting funds to HHS, ruining tourism in America and attacking Harvard University (he threatened to withhold 2.2 billion in grants and revoke their tax exempt status), tariffs that are “highly likely” to spur a temporary rise in inflation that could end up being longer lasting (Jerome Powell, the Federal Reserve Board Chair just warned us of that) you have to wonder how Trump thinks all of this is ingratiating him with Americans including his financial backers who got him elected.
Some large law firms that have bent the knee to Trump may end up being sorry they did that. Numerous associates, partners and clients are now leaving these law firms. A law firm that is in lock step with this administration risks losing clients who have conflicts of interest with the government as well as others who are becoming more and more disgusted and appalled by what this administration is doing to our democracy, our economy, our universities, and the rule of law.
Anyone who understands the importance of preserving our democracy understands by now that Trump is deconstructing it and attacking the rule of law. He is ignoring court rulings including the Supreme Court’s 9 to 0 ruling that the government should do what it can to get Abrego Garcia back from a gulag in El Salvador. (The Trump team is playing footsie with the term used in the Supreme Court order to “facilitate” his return.) Trump got numerous large law firms to ante up protection money like a mob boss. Trump is probably planning to use lawyers at these firms to provide pro bono legal services to January 6th defendants and to go after Trump’s so-called enemies which include the likes of Chris Krebs and Miles Taylor, two men who bravely told the truth about Trump and his Big Lie after the 2020 election that Biden won and Trump lost.
There is a lot going on, but I want to focus our attention specifically on Trump’s war on due process because this is at the heart of his plan to get retribution and revenge against his so called enemies. If Trump can succeed in degrading due process rights for immigrants and there is no consequence for that, he could and, I believe, would feel totally empowered to subject his so-called “enemies”, including people like Liz Cheney, Adam Kinzinger, and others to the same flagrant violation of legal process. He would do this, as so many would-be autocrats do- as a warning to other Americans to keep them from speaking out against him. As usual, Trump is cloaking his evil goal behind something that looks kinda like a legit thing.
Let’s unpack this.
ABREGO GARCIA
The New York Times reports these facts:
Mr. Abrego Garcia was removed from the United States last month in what immigration officials have since acknowledged was an error. Although the Supreme Court has instructed the government to facilitate his return, both U.S. and Salvadoran authorities have so far refused to comply.
Mr. Abrego Garcia is currently in a prison in El Salvador. Originally he was in CECOT, a maximum security prison about an hour outside the country’s capital. Recently Senator Chris Van Hollen, who was able to get to see Garcia for a meeting, reported that he had been moved to a different prison. Garcia had been picked up by ICE agents for questioning about being a possible MS-13 gang member. His young son was in the car with him when he was picked up by ICE. He never had the opportunity to challenge the allegation that he committed any crime or cross examine witnesses that could have helped him establish his innocence. The MS-13 gang he was supposedly connected to was on Long Island. Garcia never lived in New York.
As reported by Harry Litman, former Assistant US Attorney, the claim that Abrego Garcia is actually a terrorist rests on his wearing of Chicago Bulls gear and the double hearsay allegation of a Maryland cop who was later suspended from the force. Roger Parloff has done the deep dive to show that the administration [relied on unsubstantiated information].
And Judge Paula Xinis specifically held in her April 6 opinion that the government had presented “no evidence” to show Abrego Garcia is a member of MS-13 and further that the administration had effectively abandoned the position.
DUE PROCESS
Due process is a fundamental principle of constitutional criminal law in our country. All Americans charged with a crime have to have an opportunity to contest the allegations made by the government before their life, liberty, or property is taken away. The Fifth and Fourteenth Amendments to the U.S. Constitution protect due process. Trump availed himself of due process a whole lot when he was accused of criminal violations of the law in the past few years!
Abrego Garcia should not be held in a prison in El Salvador without a due process hearing. Calling him a terrorist does not make him one. He was taken away without any chance to defend himself.
No matter what you think about immigrants, this violation by the Trump administration is both unconstitutional and shockingly unfair. The Supreme Court agreed with that assessment 9 to 0, but the Trump administration is ignoring their ruling by pretending the US government doesn’t have the power to get this man back to this country. That’s not true.
JUSTICE SOTOMAYOR PUT HER FINGER ON TRUMP’S UNDERLYING PLAN
Justice Sotomayor wrote that it would be shameful “to leave Abrego Garcia, a husband and father without a criminal record, in a Salvadoran prison for no reason recognized by the law.”
She added that the government’s position “implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene.”
This is exactly what Trump plans to do.
President Donald Trump on Monday suggested his administration could send U.S. citizens who commit violent crimes to El Salvador, telling Salvadoran President Nayib Bukele that the “homegrowns are next” and urging him to build more prisons to house them.
Trump brought up the idea ‒ which he’s discussed previously ‒ to Bukele in the Oval Office before reporters entered the room for a bilateral meeting. The exchange was captured in a livestream video published on the X account of Bukele’s office.
“Homegrown criminals are next,” Trump said to Bukele. “I said homegrowns are next, the homegrowns. You’ve gotta build about five more places.”
“Yeah, we’ve got space,” Bukele responded as Trump officials in the room could be heard laughing.
“It’s not big enough,” Trump said.
If Garcia can be effectively kidnapped and incarcerated off shore in a prison without due process, then Trump could decide he has the power to incarcerate his other so called “enemies” in similar fashion based on the argument of his Dept of Justice. People like Liz Cheney or Adam Kinzinger could be “disappeared” and once off US soil it would be “oops too late” to get them back. Whether or not that is legal, the issue would be who would stop him?
Disappearing their critics is the goal of every autocrat. In countries run by dictators, people are routinely “disappeared” if they speak out against the dictator. Trump’s real motivation needs to be understood. He is trying to consolidate his power and instill fear in his opposition. Once you understand his motivation everything he is doing makes sense even if it seems weird or a bad idea or pointless. Tariffs? They are his way to get power over companies and other countries to force them to come to him for a deal. Compromising law firms? He is getting power over the law firms to force them to do his bidding. I could go on. He is on a race to get this done.
TRUMP PRETENDS TO BE POWERLESS. HE IS NOT.
President Nayib Bukele of El Salvador traveled to Washington this week for a meeting with Mr. Trump. The leaders appeared side-by-side in the Oval Office, with Mr. Bukele saying he had no intention of releasing Mr. Abrego Garcia and Mr. Trump saying he was powerless to seek his return.
On Wednesday, the Trump administration stuck to its position, continuing to defy the Supreme Court’s order. Asked about the case, Attorney General Pam Bondi declared that Mr. Abrego Garcia would not be repatriated unless the president of El Salvador decided to return him. Even if that happened, she said, the U.S. would immediately deport him again.
“President Bukele said he was not sending him back,” Ms. Bondi said. “That’s the end of the story.” She added Mr. Abrego Garcia is “from El Salvador, he’s in El Salvador and that’s where the president plans on keeping him.”
THIS IS NOT THE END OF THE STORY
Bondi might like to think that this is the end of the story for Abrego Garcia, but this is not the end. This administration might possibly end up being sorry they picked on this particular young man in the way they did. He is kinda sympathetic. Garcia lived in the United States for over a decade and committed no crimes or terrorist acts. He has a wife and young child.
TRUMP IS LOSING TRACTION WITH AMERICANS, ESPECIALLY YOUNG MEN
The recent YouGov/Economist poll has been getting some attention. It shows a drop in President Trump’s approval rating among most age groups. But his approval rating with young adults has dropped off a cliff (from +5 to -29). Trump had gained support with younger Hispanic and Black men who helped elect him. You have to wonder if Trump’s treatment of Abrego Garcia is now helping to move young adults, and especially young men, to rethink their support.
UPDATE FRIDAY, APRIL 18 FROM “TALKING FEDS” HARRY LITMAN
Judge Wilkinson responded to this emergency with remarkable haste. The 4th Circuit judge soundly rejected the Trump administration position and treated this legal development as an emergency befitting a constitutional crisis. The opinion is one that the Supreme Court might let stand so that the 4th Circuit takes the heat instead of them for insisting in plain English and without any hedging that Abrego-Garcia needs to be returned to the US for his due process hearing.
The Fourth Circuit’s speed in rejecting the government’s petition for a stay was remarkable. The government filed its emergency papers at around midnight on Wednesday. At two in the morning on Thursday, the Court of Appeals ordered Abrego-Garcia’s lawyers to respond by 5 PM that day. Then, at about 2:45—i.e., before Abrego-Garcia’s papers were even due—the Fourth Circuit unanimously denied the government’s request.
That warp-speed treatment communicated the urgency of the case and Judge Xinis’s declaration that “Every day Mr. Abrego-Garcia is detained in CECOT is another day of irreparable harm.”
It’s the words of the order that were thunderous. The author was J. Harvie Wilkinson, a Reagan appointee and a conservative icon particularly known for deference to the Executive. It’s an opinion that is by turns politic, blunt, reproachful, and horrified at the precipice that the Administration’s lawlessness and arrogance have brought us to. It ends with an extraordinary direct appeal to the Executive to “vindicate [the rule of law] and to summon the best that is within us while there is still time.”
The opinion is short—only six pages—and plain-spoken. It aims to bring home the stakes of this historic showdown moment to everyone, not just lawyers. Early in the opinion, Wilkinson writes:
“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the assemblage of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody, there is nothing that can be done.
This should be shocking not only to judges but to the intruder sense of liberty that Americans far removed from the courthouse still hold dear.”
Future accounts of this high-crisis moment that document the democracy’s demise—or its resurgence, as the case may be—will include the words that Wilkinson wrote yesterday. Considering everything—where we are as a democracy, the stakes of the Abrego-Garcia case in particular, the truculent posture of the Administration, Wilkinson’s place and reputation in the federal judiciary—the opinion is fairly magnificent.
You can find the full opinion here.
