The Trump administration isn't defying the letter of Thursday's Supreme Court ruling. But it's daring the federal courts to take much more aggressive steps to block its immigration policies.
Bukele positing he'd have to "smuggle" Garcia into the US - brazenly included in DOJ's progress filing yesterday - is direct evidence that the US has *not* asked for his release, nor met even DOJ's low bar of domestic facilitation. They literally told on themselves.
I should add that domestic facilitation includes the United States Embassy in El Salvador, which is considered US territory. Bukele could just deliver him to the Embassy.
Sen. Chris Van Hollen (D-MD) said yesterday that he intends to go to El Salvador to check on K.A.G.'s condition and discuss his release. Several other (Democratic) members of Congress said they plan to join him. Just like the $millions of our tax dollars spent on Trump's frivolous trips back-and-forth to Mar-A-Lago (to play golf), the costs in time, fuel, etc for these lawmakers to travel to El Salvador would be totally avoided if the Trump administration would just "facilitate" K.A.G.'s return like they are legally obligated to do.
Isn't this a direct violation of the Supreme Court order? Not just in spirit, but in letter. Steve says that the Trump administration would be complying with the Supreme Court order if they had actually tried to bring Abrego Garcia back to the US and failed, but as Steve himself says, the Trump administration didn't even try to bring Abrego Garcia back to the US, and this seems like a violation of the letter of the Supreme Court order. Many people were worried that Trump would play a charade with Bukele to feign obedience to the Supreme Court order, but he did not even do that.
It also directly contradicts the government’s position in court on what “facilitate” means in the immigration context — to remove any domestic obstacles for K.A.G’s return.
I like your post, it is well written and I agree with virtually everything you're saying and the conclusions you're coming to. However, I feel like you're totally glossing over the DoJ's actions in refusing to comply with lawful orders from the District Court. Don't you think that any take on this requires some analysis on the fact that, for instance, all 3 status reports filed by the DoJ are noncompliant? 2 of the 3 were late. The first one included one of the 3 required details, the other 2 did not include any. Etc.
Yeah, it's unclear to me why that's not a huge problem for the government. They have refused to answer two of the questions and haven't been on time for an order for a week. I'll take a blunt "because it's the executive branch," if that is truly the answer
We should get an update today on that at least. Another hour till the hearing. I expect whichever lawyer shows up to claim they know nothing. Hopefully that means we will get sanctions.
If that happens, I wouldn't be surprised if Pam Bondi fires or puts the attorney on leave like happened with Erez Reuveni (the DOJ's version of 'disappearing' one of their own).
I'm not sure if it's "glossing over" as much as the DOJ lawyers' actions not being particularly germane. If the Trump administration was a cartel – actually, there are arguments that it's *already* a cartel – then DOJ attorneys would be the rough equivalent of the street dealers who hang out on urban street corners.
They have no clue what's going on further up the food chain, entirely by design.
It takes a long time to process an Order to show cause re: contempt. With DOJ appeals for every adverse finding every step along the way. And Kilmar stays in a metal bunk surrounded by the members of the gang that were the basis for the Judge's order in 2019 preventing his removal back to El Salvador. I'm just spitballing here but my guess is that Judge Xinis will order the DOJ attorney this afternoon to produce a witness, person most knowledgeable of the efforts undertaken to facilitate his return at the next hearing. The DOJ will resist that order and it'll be time to run the clock again at SCOTUS. We are between a rock and a hard place. The solution is to rally en masse and march. The when and where will be decided by people far above my pay grade.
>"It takes a long time to process an Order to show cause re: contempt. With DOJ appeals for every adverse finding every step along the way. And Kilmar stays in a metal bunk surrounded by the members of the gang that were the basis for the Judge's order in 2019 preventing his removal back to El Salvador."
I understand that, but this isn't just about him, it's also about setting the precedent that there can be real and substantial consequences to the Executive branch's complete disregard for the federal courts. The Executive branch is just going to keep playing this game of delay and inadequate compliance until the courts do something to make them stop.
The problem with trying to censure the staff of a sitting president: it takes mere minutes for him to issue a pardon for any acts committed.
Also, the likely architect of this entire plan is Stephen Miller, a.k.a. Goebbels 2.0, and if he's ever held accountable for his actions, it may need to be at The Hague. (The Nazis went into hiding after WWII – why wouldn't Trump et al?)
We are paying the Salvadoran government to house some of our deportees. You would think that that fact gives us some leverage over that government. The claim made by Trump and Bukele that Abrego Garcia's detention cannot be undone is ridiculous.
Timothy Snyder accurately describes what is unfolding as state terrorism, one of the defining features of despotic regimes. With this crowd in power one can now easily imagine a heretofore unimaginable scenario in which, say, a federal judge who irks Trump is arrested in the middle of the night and whisked away to a foreign prison beyond the reach of law.
I suppose they'll start by deporting U.S. citizens convicted of horrific violent crimes to CECOT to get people used to the idea, and only then move on to people who "threaten our national security" by speaking out against the government's policies.
What a tragedy that the American people cannot trust in any way, shape, or form that their president will do the right thing when the government is in error in such a devastating way as to, in all probability, end an innocent man's life in a torture prison. Not only that, but the president's mental illness creates in him a condition called 'megalomania,' in which he believes that he is never wrong, and that the entire country not only belongs to him, but he IS the country.
I think we need to be looking ahead and considering the contours of civil liability, and how some of these lawless acts may impact civil immunity.
It would seem an oxymoron to say that there is such a thing as an "illegal official act". How can an "official" act ever encompass an act not authorized by law? It is the fact that an act is authorized by law that makes the act "official" - not the status of the person carrying out the act. And this is consistent with what the DC Circuit said about the nature of civil immunity for non-official acts in *Blassingame* too: no civil immunity for acts falling outside the scope of the office. In *Blassingame* it was Trump's electioneering that had nothing to do with carrying out the duties of the presidency; here it is Trump's organized kidnapping and asportating scheme in violation of an existing court order. But it is absurd to say that an "official" act can encompass acts that are expressly prohibited by law (e.g., deporting AG in contravention of an existing court order).
Similarly, the U.S. and Maryland (and every other state) are dual sovereigns. Why should the State of Maryland recognize any criminal immunity for unofficial acts? The ICE officers who physically entered Maryland to abduct AG acted unlawfully and can be indicted for that act (it is unlawful in Maryland, just like any other state, to engage in kidnapping). Without the imprimatur of federal law to bless their acts, those agents should not get immunity (same circumstance as where an FBI agent decides to summarily execute a person when serving a warrant for possession of contraband - presumptive federal immunity is not a license to kill in that context and shouldn't be such a license in this context either).
Simply put: various federal officials, including the sitting president, attorney general, secretary of homeland security, and their agents, engaged in a criminal conspiracy to violate federal law by kidnapping and "deporting" AG (and others). Without the cover of law, those persons so kidnapped (or their estates) should be able to seek civil damages against the responsible parties - and the law already provides such a remedy. Furthermore, the states still possess their own criminal laws that cannot be waived aside by the President and are still enforceable in the states - those who violate state law without the cover of federal law do so at their peril and should expect real consequences.
So the Administration’s position is that major powers are cowering before Trump and “kissing his ass,” but that Trump has no influence over a poor and tiny Central American country.
On Sunday, April 13, 2025, Marco Rubio (Secretary of State) announced that “…another ten criminals from the MS-13 and Tren de Aragua Foreign Terrorist Organizations arrived in El Salvador.” Isn’t this going against the Judge’s order to stop the deportations?
Bukele positing he'd have to "smuggle" Garcia into the US - brazenly included in DOJ's progress filing yesterday - is direct evidence that the US has *not* asked for his release, nor met even DOJ's low bar of domestic facilitation. They literally told on themselves.
I should add that domestic facilitation includes the United States Embassy in El Salvador, which is considered US territory. Bukele could just deliver him to the Embassy.
Sen. Chris Van Hollen (D-MD) said yesterday that he intends to go to El Salvador to check on K.A.G.'s condition and discuss his release. Several other (Democratic) members of Congress said they plan to join him. Just like the $millions of our tax dollars spent on Trump's frivolous trips back-and-forth to Mar-A-Lago (to play golf), the costs in time, fuel, etc for these lawmakers to travel to El Salvador would be totally avoided if the Trump administration would just "facilitate" K.A.G.'s return like they are legally obligated to do.
Isn't this a direct violation of the Supreme Court order? Not just in spirit, but in letter. Steve says that the Trump administration would be complying with the Supreme Court order if they had actually tried to bring Abrego Garcia back to the US and failed, but as Steve himself says, the Trump administration didn't even try to bring Abrego Garcia back to the US, and this seems like a violation of the letter of the Supreme Court order. Many people were worried that Trump would play a charade with Bukele to feign obedience to the Supreme Court order, but he did not even do that.
It also directly contradicts the government’s position in court on what “facilitate” means in the immigration context — to remove any domestic obstacles for K.A.G’s return.
Most refreshing to read a non-hyper analysis of what is really going on in the legal world. Thank you.
I like your post, it is well written and I agree with virtually everything you're saying and the conclusions you're coming to. However, I feel like you're totally glossing over the DoJ's actions in refusing to comply with lawful orders from the District Court. Don't you think that any take on this requires some analysis on the fact that, for instance, all 3 status reports filed by the DoJ are noncompliant? 2 of the 3 were late. The first one included one of the 3 required details, the other 2 did not include any. Etc.
Yeah, it's unclear to me why that's not a huge problem for the government. They have refused to answer two of the questions and haven't been on time for an order for a week. I'll take a blunt "because it's the executive branch," if that is truly the answer
We should get an update today on that at least. Another hour till the hearing. I expect whichever lawyer shows up to claim they know nothing. Hopefully that means we will get sanctions.
If that happens, I wouldn't be surprised if Pam Bondi fires or puts the attorney on leave like happened with Erez Reuveni (the DOJ's version of 'disappearing' one of their own).
I'm not sure if it's "glossing over" as much as the DOJ lawyers' actions not being particularly germane. If the Trump administration was a cartel – actually, there are arguments that it's *already* a cartel – then DOJ attorneys would be the rough equivalent of the street dealers who hang out on urban street corners.
They have no clue what's going on further up the food chain, entirely by design.
I was going to say, Whadda you mean *if*?
This is an excellent analysis of the dilemma facing Judge Xinis. Thank you.
I appreciate your nuance and insight on where the judicial daylight occurs. It's not easy to be informed these days...
Can the courts simply prevent this offshoring of detention because it places subjects beyond the reach of habeas?
This type of straightforward legal analysis - minus the hyperbole - is why I paid for this subscription. Thank you, again.
Sorry for being picky Steve, but I think his forename is “Kilmar”, rather than “Wilmar”
Yikes. Good catch!
I might have limited vision but I was able to spot that one!
Fixed in the permanent version. Thanks for flagging.
Such a helpful analysis! I needed it and will now”manage” my subscription.
Monetary sanctions aren't going to be enough. Somebody in the administration needs to go to jail for contempt of court if they continue to not comply.
It takes a long time to process an Order to show cause re: contempt. With DOJ appeals for every adverse finding every step along the way. And Kilmar stays in a metal bunk surrounded by the members of the gang that were the basis for the Judge's order in 2019 preventing his removal back to El Salvador. I'm just spitballing here but my guess is that Judge Xinis will order the DOJ attorney this afternoon to produce a witness, person most knowledgeable of the efforts undertaken to facilitate his return at the next hearing. The DOJ will resist that order and it'll be time to run the clock again at SCOTUS. We are between a rock and a hard place. The solution is to rally en masse and march. The when and where will be decided by people far above my pay grade.
>"It takes a long time to process an Order to show cause re: contempt. With DOJ appeals for every adverse finding every step along the way. And Kilmar stays in a metal bunk surrounded by the members of the gang that were the basis for the Judge's order in 2019 preventing his removal back to El Salvador."
I understand that, but this isn't just about him, it's also about setting the precedent that there can be real and substantial consequences to the Executive branch's complete disregard for the federal courts. The Executive branch is just going to keep playing this game of delay and inadequate compliance until the courts do something to make them stop.
Is that true? I think she could quickly throw someone in jail for civil contempt and keep them there until they comply with her orders.
The problem with trying to censure the staff of a sitting president: it takes mere minutes for him to issue a pardon for any acts committed.
Also, the likely architect of this entire plan is Stephen Miller, a.k.a. Goebbels 2.0, and if he's ever held accountable for his actions, it may need to be at The Hague. (The Nazis went into hiding after WWII – why wouldn't Trump et al?)
We are paying the Salvadoran government to house some of our deportees. You would think that that fact gives us some leverage over that government. The claim made by Trump and Bukele that Abrego Garcia's detention cannot be undone is ridiculous.
which the administration knows quite well and says in all but words.
Timothy Snyder accurately describes what is unfolding as state terrorism, one of the defining features of despotic regimes. With this crowd in power one can now easily imagine a heretofore unimaginable scenario in which, say, a federal judge who irks Trump is arrested in the middle of the night and whisked away to a foreign prison beyond the reach of law.
I suppose they'll start by deporting U.S. citizens convicted of horrific violent crimes to CECOT to get people used to the idea, and only then move on to people who "threaten our national security" by speaking out against the government's policies.
What a tragedy that the American people cannot trust in any way, shape, or form that their president will do the right thing when the government is in error in such a devastating way as to, in all probability, end an innocent man's life in a torture prison. Not only that, but the president's mental illness creates in him a condition called 'megalomania,' in which he believes that he is never wrong, and that the entire country not only belongs to him, but he IS the country.
I think we need to be looking ahead and considering the contours of civil liability, and how some of these lawless acts may impact civil immunity.
It would seem an oxymoron to say that there is such a thing as an "illegal official act". How can an "official" act ever encompass an act not authorized by law? It is the fact that an act is authorized by law that makes the act "official" - not the status of the person carrying out the act. And this is consistent with what the DC Circuit said about the nature of civil immunity for non-official acts in *Blassingame* too: no civil immunity for acts falling outside the scope of the office. In *Blassingame* it was Trump's electioneering that had nothing to do with carrying out the duties of the presidency; here it is Trump's organized kidnapping and asportating scheme in violation of an existing court order. But it is absurd to say that an "official" act can encompass acts that are expressly prohibited by law (e.g., deporting AG in contravention of an existing court order).
Similarly, the U.S. and Maryland (and every other state) are dual sovereigns. Why should the State of Maryland recognize any criminal immunity for unofficial acts? The ICE officers who physically entered Maryland to abduct AG acted unlawfully and can be indicted for that act (it is unlawful in Maryland, just like any other state, to engage in kidnapping). Without the imprimatur of federal law to bless their acts, those agents should not get immunity (same circumstance as where an FBI agent decides to summarily execute a person when serving a warrant for possession of contraband - presumptive federal immunity is not a license to kill in that context and shouldn't be such a license in this context either).
Simply put: various federal officials, including the sitting president, attorney general, secretary of homeland security, and their agents, engaged in a criminal conspiracy to violate federal law by kidnapping and "deporting" AG (and others). Without the cover of law, those persons so kidnapped (or their estates) should be able to seek civil damages against the responsible parties - and the law already provides such a remedy. Furthermore, the states still possess their own criminal laws that cannot be waived aside by the President and are still enforceable in the states - those who violate state law without the cover of federal law do so at their peril and should expect real consequences.
So the Administration’s position is that major powers are cowering before Trump and “kissing his ass,” but that Trump has no influence over a poor and tiny Central American country.
On Sunday, April 13, 2025, Marco Rubio (Secretary of State) announced that “…another ten criminals from the MS-13 and Tren de Aragua Foreign Terrorist Organizations arrived in El Salvador.” Isn’t this going against the Judge’s order to stop the deportations?