Shownotes Transcript
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Hello and welcome to Maine Justice. It is Tuesday morning, April 15th. Tax day. It is tax day.
Do people still have to pay their taxes given what's happening? I don't think so, because we don't have government anymore. So what have we been paying for? It's a trust system, Mary. Sorry. So there's so much to talk about because there's things that fall into the bucket of the illegal and that's the bucket of just like policy decisions that are, what's the word? Dumb. Dumb. But, you know, the IRS, it may sound good to say you're going to
shrink it and eradicate it. But like, we actually make money off of that anyway. Okay. So as you can tell, we're already triggered. That's right. And we're not even, we don't even have taxes on our agenda today. We have all kinds of stuff. So in case you don't know, I am Andrew Weissman and that other person is Mary McCord. Hi, Mary. I didn't even realize we hadn't said that yet. Okay. Yeah. It's going to be one of those days. So before we dig in, let me remind people that
that this podcast and also two other sister podcasts produced by MSNBC, Into America and Why Is This Happening, all three of us have been nominated for Webby Awards. You can go and vote for any or all of those three or any others that you choose. You have just a few more days to do so. In fact, there are two days left to cast your vote. Vote now.
Votes are due on April 17th. So check out our show notes and see how you can vote for each show and help MSNBC take home the award for all three of them. So snap a doodle. Yes. We haven't heard that snap a doodle in a while. We have not. Maybe because everything is already going so fast. Everything is snap a doodling already. Okay. It's sort of remarkable to me, Ray, that we've managed to keep it this light for this long because we're about to get dark.
Yes. What is on our dance card? I mean, obviously, we're going to talk about the Garcia case, right? Yes. Top news, top of mind is this continuing real saga over the erroneous, unlawful deportation of, or I should really say removal of,
Kilmar Abrego Garcia from the United States to an El Salvador terrorism detention center and the back and forth and back and forth that's been going on for days now between the administration and the courts in terms of trying to get some information about what his status is and what the government has done pursuant to the Supreme Court's direction to facilitate his return to the United States. And of course, we had the meeting between President Trump
and the president of El Salvador in the White House yesterday, and that has probably only made things worse. So we will bring people up to speed on the TikTok of exactly what happened, but then also our take on...
What should happen, Mary, you wrote, I'm so impressed because you got that out in record time. You wrote a great piece yesterday in the Washington Post. We're going to put that in the show notes so people can read it. One spoiler alert, and that really has to be remembered. I want to make sure everyone knows. Mr. Garcia, right now, as we are recording this, is still wrongfully detained in
in that prison in El Salvador, which the government admits he was mistakenly taken from this country and put there. He is still in jail. Yes. And has not been able to actually speak to his wife or anyone, right? People hear, you know, that's why the court had to say, where is he? And we'll get into that. And I think this raises some also very interesting issues about things happening in court.
and things happening outside of court, because there's a pretty big inconsistency between those things. And that's something we've mentioned before, and we're really seeing it here. We will also look at some things going on at the Department of Justice. I mean, this podcast is, in fact, called Maine Justice. And so we do want to continue to raise flags about things going on there, including something that I think would have probably been big, big news if it weren't for so much other news. And that is the termination, cancellation of a major
Settlement with the state of Alabama's public health system that had to do with alleged discrimination in providing services, sanitation, sewage services, etc. to a majority black county. A major agreement to improve those services, to not criminalize.
people who ended up trying to take their own measures to prevent raw sewage from being in their yard. And of course, what have we done now? Well, we've ripped up that settlement agreement because that's DEI. And we'll tell you what that means. And then every week, I mean, we should just always have one of the segments is retribution because that's what we're seeing every day in new and different ways.
Last week, of course, crossing a Rubicon and actually targeting individuals, Chris Krebs and Miles Taylor. We've had now an entire targeting of, I mean, we've already seen targeting of universities, but the targeting of Harvard and Harvard pushing back, Harvard now litigating over this. And we've seen additional people, of course, being scooped up off of campuses and
And we've seen, as we've talked about before, retribution against journalists. And we now have a whole conflict there in a case brought by the Associated Press, got a TRO against retaliation. And it appears, at least as of yesterday, that the White House may not be complying with that. So lots and lots of stuff to get to. There's just so much. There's a deluge. And to your point, under normal circumstances, one of the things that we would start with is...
is the firebombing of Pennsylvania Governor Josh Shapiro's home on Passover. And the infiltration by that individual into the governor's mansion actually got into the mansion after throwing Molotov cocktails, reportedly was there with a hammer, saying that if he had seen the governor, he was planning on beating him.
And that there isn't sort of a bipartisan hue and cry about it signals the idea that violence is just not being treated in the way that it should. That would normally be the main topic of conversation, but it's not. So instead, let's turn to the Abrego Garcia case.
Since our last podcast, the Supreme Court ruled in a per curiam, that is an unsigned order with no dissents. That's right. And it gave two obligations to the government. One, it said that the government has to facilitate the release of Mr. Abrego Garcia from prison.
prison. It also said they had to ensure his due process rights. Remember, they had previously said in a prior decision that these people who had been removed are entitled to a pre-deprivation hearing. They talked about that in the context of the Venezuelans who had been removed under the supposed authority of Alien Enemy Act. And this, of course, is separate because Mr. Garcia is El Salvadoran.
Right. The idea is before you're removed, you're entitled to a hearing. You can say that legally, whatever the statute is, that doesn't apply or that you're not within the gang or the group that is being removed. So you're entitled to a pre-deprivation hearing. And here the court says, one, they need to facilitate his release. Two, they need to ensure due process. In doing that, they need to be prepared to share with the district judge what it is that they are doing.
What steps they have taken and the prospect of further steps. It's exactly what the court said. And then finally, the court did say that with respect to the district court saying that you have to facilitate and effectuate that was sort of this is we're really getting into the weeds here.
They did say that the word effectuate is unclear. That was exactly their word. Needed clarification. Yep. Because obviously what they're concerned about is they say you can't order the government to effectuate. Let's just take a different hypothetical. The release of somebody in Russia, not under our control.
totally there pursuant to Russian authorities to say, now the government of the United States has to go into Russia and do the following. So they're saying that is ambiguous and you have to deal with that situation and make sure that you're not crossing the line into something the government actually can't do.
nor would it really be the province of a court to say that. So those left a number of obligations on the government that they needed to fulfill. And it then went back to the district judge and maybe, Mary, what did the district judge then do?
Yeah. And I think the timing here is really, really important. So this is on Thursday evening, I think around 5 or 6 p.m., that the court put out this order. And in doing that, let's just remind people this was up there on a motion to stay the lower court's order that it needed to stay and vacate, get rid of the lower court's order that the government needs to facilitate and effectuate his return. Right.
And so that's the posture where it was in the Supreme Court. So the Supreme Court pretty much denied that motion to vacate, right? Did tell the district court, clarify what you mean by effectuate with due regard to, you know, the executive's deference to the executive in foreign affairs, but facilitate, yeah, everything you just said, they ordered the to do. The only part of what the Supreme Court did that granted in part the government's request was to the extent that the lower court had ordered that
facilitated and effectuated his return by 1159 last Monday evening, they said that date has passed. That part of the order to vacate that part is granted because that date's already passed, right? That's the only part. And this is important because Stephen Miller later just flat out, in my opinion, lies about this in public statements. He's
He might say he's parsing hairs, but that's the only part of what the government requested that the Supreme Court granted. Yes, we're vacating the part that was 1159 on Monday because that's over. So the lower court wasted no time within hours of getting this back from the Supreme Court. The court did clarify what she meant. And this is Judge Paula Zinas out of the District of Maryland. She clarified that what she meant was
was she amended her order to, quote, direct that defendants shall take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible. And then consistent with the Supreme Court's directive, and she quoted it in her brief order, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.
Based on that, Judge Zinas then directed the government to answer three questions and to file a declaration by the next morning. She originally said 9.30 the next morning, answering three questions. One, the current physical location and custodial status of Mr. Obrego Garcia. Two, what steps, if any, the defendants have taken to facilitate his immediate return to the United States and
And three, what additional steps the defendants will take and when to facilitate his return, right? She says, if you need to file under seal, you file under seal. So this is all still happening on Thursday evening. The court then says, I'll have an in-person status conference on Friday at 1 p.m. in the courthouse.
So next morning, government doesn't get this 930 declaration. She wants a declaration from somebody with personal knowledge who can answer that question. Let's take a tiny pause here to talk about what a declaration is. A
A declaration is really a substitute for having a witness come in and sit in the witness stand and raise their right hand and take an oath to tell the truth and get asked questions. It's a way to do this on the papers where the government official, you know, puts in writing a declaration and signs it under oath, right? They're saying, I'm swearing to these things. So it's sort of like the paper equivalent of in-person testimony. It's just that you can't have a back and forth with a piece of paper, right? You can't.
You can only just take what is on there. Yeah. And very often there'll be lots of follow-up questions that you'd want to ask and it sort of ducks the issue or it uses, this is like, this is going to be the example you're thinking of. It uses language that is just so ambiguous that you immediately are going to be like, well, what do you mean by that? So can I just, yeah, we're going to get into this sort of very detailed TikTok. But so I'm going to play dumb here, which...
Which is, here's the thing that is not sort of legal niceties and, oh, what exactly were the words and what's the difference between facilitate and effectuate? None of that matters because here's the key thing that has not happened. The United States has not even said that it has asked El Salvador for his return. Period. The end. I'm sorry. Yep.
None of that had to do with state secrets, classified information, foreign policy. If you want to know the most limited thing that the United States could do to, quote, facilitate, unquote, his return, how
How about asking, are you telling me that the president of El Salvador can show up in the Oval Office, that the president of the United States can talk about, oh, I need you to build five more prisons because I want to put Americans, if legal, in these prisons, that we're paying by all reported accounts to have these people housed?
that we are both sending people and getting people back when El Salvador says, you know what, we won't take those. And we are even sending Kristi Noem there and she is able to do a sort of- Promotional video. Let's just say a video in front of the jail that you're saying that somehow the president can't even ask and that wouldn't be honored. That's-
That is cutting through all of this sort of like, oh, there conceivably could be limits on what a court could order. They're not even saying they asked for his return. And obviously that would be the end of this, because if they asked, it would happen. Unless there was a wink to say, I'm going to ask and I want you to say no. So that is why all of this is just such confusion.
Crap. How's that for a legal term? That the Supreme Court of the United States has said, you are directed to facilitate his return. And they, the United States government, will not even tell the district court
that it is asked for his return. Big picture, a person is in jail wrongfully. The government has admitted, not just in the district court, but the Supreme Court papers from the government said they agreed that this was a mistake. So he is there because of a United States mistake, and they will not even say that they have asked for his return after causing it themselves.
I mean, it's so impossible to fathom
not just the lawlessness, but the cruelty in that judgment. It's like we talked about last week, right? The cruelty. This is a human being married to a U.S. citizen with U.S. citizen children, been here since he was a teenager, since 2011. The record is clear when you go back through immigration proceedings. He fled because of gangs threatening him and his family. His mother sold papooses out of the house, and that's why he came to the United States. I mean, this is what is in the record, right?
So the record of his immigration proceedings, not even the record of this particular incident. So to the point of what is the government saying? So first thing they do Friday morning is saying, Judge, this is unreasonable and we can't possibly meet this 930 a.m. deadline. So she says, OK, fine.
11.30, 11.30 comes and goes. There is no declaration. But of course, an attorney does show up in court at 1 p.m. and he can answer no questions. He cannot even answer the question, where is Mr. Abrego Garcia? Because we've all assumed he's at SICO, the terrorist detention center in El Salvador. But no one had ever confirmed that, right?
And there's a concern about is he there and is he alive? Exactly. Right. So the attorney couldn't answer that. Something that the court called, you know, a pretty simple question. Couldn't answer questions about any efforts to facilitate return. Couldn't answer any of that. So the court then put out a new order, said every day now by 5 p.m., starting with tomorrow, Saturday, you're going to give me a declaration by a government official.
with personal knowledge, meaning not something they heard from somebody else, but somebody who has personal knowledge, answering these three questions or attempting to answer these three questions. We are going to do that every day. And then we'll have a hearing on the 15th, which is today. And Mary, just to the point of the timing, her scheduling, one of the things she pointed out is that, you know, it's been some time since her initial order. And those orders, there
There was a time period where they had not been stayed. And so presumably the government is finding out what the ultimate facts are. And in other words, it didn't have the luxury of saying this has all been stayed for all of that time.
And so she was like, this isn't like this is taking you by surprise. And it wasn't like there was an order that had been stayed this whole time that you didn't have to worry about it. It's like you would be prepared for this. I mean, it's just something that you would know. This in many ways is, remember, this is the case where the
attorney who first showed up for the government is no longer on the case. The one who admitted that Mr. Obrego Garcia had been wrongfully deported because he had a court order from 2019 saying you cannot be removed to El Salvador.
And just, you know, that in the Supreme Court, it's not just him. In the Supreme Court, the wreath also conceded the improper and didn't in any way say that. So this is what I've said in my Washington Post op-ed. It's just like a cat and mouse game. So on the 12th, yes, we get a short three paragraph declaration by an official at the Department of State, a career State Department attorney.
attorney. He's able to answer one question. He says, it is my understanding based on official reporting from our embassy in San Salvador that Abrego Garcia is currently being held in the terrorism confinement center in El Salvador. That's what we all assumed, right? He is alive and secure in that facility. He is detained pursuant to the sovereign domestic authority of El Salvador. A
Okay, what does that mean? Does that mean El Salvador has now said, we have charges against Mr. Abrego Garcia, and we're holding him in this facility under as yet non-public and unrevealed charges against him that, of course, had nothing to do with how he ended up there? Is that what they mean? Or do they mean under the domestic sovereign authority of El Salvador, we could enter an agreement with the United States to house people that you send here, and that's the authority we're exercising? We don't
know the answer to that. And those mean two very different things when it comes to what steps the government should be taking to facilitate the return. Both still are certainly capable of facilitating the return. But one means, hey, you're housing him under a contract with us. Give him back. That's pretty easy. The other is you're claiming you have certain authority over him. Would you please give him back? Because we shouldn't have sent him to you to begin with. Right. Right.
So that was sort of the ambiguity of that statement. Exactly. So Sunday, we get another brief. This one is a few more paragraphs, eight paragraphs, but most of the beginning paragraphs are just describing who the person is making the declaration. This is now an assistant director for removals within DHS's ICE. And he says...
Mr. Abrego Garcia is a native and citizen of El Salvador. He says he was removed to El Salvador pursuant to Title VIII of the U.S. Code. Title VIII is where the Immigration and Nationalization Act is. And so most people who go through deportation proceedings with the due process you talked about, Andrew, are not able to get to El Salvador.
It's under the provisions of that act. He didn't have those proceedings before he was sent out of the country. Right. And then he says, although Abrego Garcia has an order of removal issued by an immigration judge, I understand that he should not have been removed to El Salvador because the immigration judge had also granted Abrego Garcia withholding of removal to El Salvador. That's the technical. You can't take him there.
But then here's the kicker. I also understand that Abrego Garcia is no longer eligible for withholding of removal, meaning no longer eligible to not be deported to El Salvador because of his membership in MS-13, which is now a designated foreign terrorist organization. OK, what does that mean? OK, so there's so many issues with that because this is the effort to change history. That's right.
And there's a legal component and there's a factual component. One, legally, if the government wants to claim and prove that he is a member of MS-13, there is a completely lawful way for them to do that. They could have gone back and said to the immigration courts that the initial order prohibiting his removal needs to be changed because of changed circumstances. And
And that actually came up in the district court initially, where they said, we agree that we could have done that and we didn't do that. And we didn't do it. And this is the factual component. There was no evidence presented in the district court or the court of appeals on the issue. No evidence that he has ever been charged with or convicted of a crime. And the Fourth Circuit said that the government presented no
no evidence. This is a quote. The government presented no evidence of MS-13 affiliation and in fact said that that argument was sort of abandoned before the court. So again, there's no record evidence of this.
I want to be fair to the government here. If they had such evidence, there is a lawful way for them to proceed. And also, this is one where I want to make sure people understand. Let's assume he was a gang member of MS-13. Let's assume that. He's entitled to due process. This is rule of law. This is the point we keep making, right? Exactly. Week after week. You don't just do what you want and ignore the law. You follow the law. Exactly.
Exactly. In this country, you don't get to say, oh, you know what? We think this person's guilty. Off with their head. That's right. Trial to follow. That is the claim here because they allege without any hearing and without any proof that he is now an MS-13 gang member, something they did not claim, that somehow that he is not entitled to process. The Supreme Court in its
prior ruling, the one from Judge Boasberg on the Alien Enemies Act, refuted that and said those people are entitled to pre-deprivation hearings. And that is the point of the rule of law. So it's both factually highly questionable and also legally irrelevant. That's right. It may
as a publicity political matter, sort of small p, be useful for the administration to try and rebrand Mr. Garcia. But here's my one final piece before we break, which is for the United States government to be saying that when you have the Attorney General of the United States sitting in the room and
and living with that and thinking because he's somehow a gang member, he's not entitled to due process. It flies in the face of the Supreme Court ruling and the oath of office you take. To take care that the laws be faithfully executed. Yep. Okay, that is a great break. Okay. Okay. Am I too triggered? Yes. Okay. Yes, we're going to take a deep breath. Deep breaths. Okay, we're going to take a break. So,
So that everyone who's listening and especially me who's participating can sort of calm down. All right. The last thing you want to hear when you need your auto insurance most is a robot with countless irrelevant menu options, which is why with USA auto insurance, you'll get great service that is easy and reliable all at the touch of a button. Get a quote today. Restrictions apply. USA.
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So, Mary, there's more. It's sort of amazing. But yesterday, there was both an Oval Office meeting that we've talked about between the president of Salvador and the president of the United States, attended by many, many senior government officials. And there also was a new filing in the district court. One of the 5 p.m. every day. Got to try to answer those three questions, right? Yeah. Is there a spoiler alert that the question's not answered? No.
Yeah. What do you think? Yes. So this time, you know, there was reporting, of course, that came out before 5 p.m. about this White House meeting. And as you already indicated up top, no, the big upshot of that meeting, it was not in front of the cameras where President Trump said to the president of El Salvador, hello, we've mistakenly sent you Mr. Abrego Garcia. We would appreciate if you would return him. That did not happen, as you indicated. But
Some amount of what did happen, in addition to being reported in the press, was part of the 5 p.m. filing yesterday. This time, the filing is from a new person. This is a person who is the acting general counsel at the Department of Homeland Security. So somebody you'd think would want to be very careful about what he is saying in a sworn declaration. And I guess he is careful. It's just not particularly helpful.
He says at one point that DHS does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation. Again, begging this question, what does it mean? Is El Salvador trying to say we're actually holding him under our own authority? Because certainly that's not something that the Salvadoran president said to President Trump yesterday in the Oval Office.
He then goes on to say that there was this bilateral summit in the Oval Office between the two presidents yesterday. And here is what he says about that. I understand that in response to a question regarding Abrego Garcia, President Bukele said, quote, I hope you're not suggesting that I smuggle a terrorist into the United States. How can I smuggle a terrorist into the United States?
Of course, I'm not going to do it. The question is preposterous. And this was a question not from President Trump, but from a member of the press. So certainly there's nothing about that statement that says we are holding Mr. Obrego Garcia under the authority of the government of El Salvador because he's being charged with thus and such crime. He did not say that. He basically suggested, how could I bring him back myself when I haven't been asked because
because I would have to smuggle him in. He doesn't say the one I haven't been asked, but why would you be talking about smuggling him in if the government of the United States had, in accordance with the Supreme Court and the district court's directions, sought to facilitate his return? Exactly. And so this was the you have the president of El Salvador pointing a finger saying, look at him, the
the president of the United States and you have the president of the United States saying, well, we can't do anything because he's being held by El Salvador. I mean, this was just the Alphonse Gaston. And I mean, it's it is so laughable. And like, I mean, this really is assuming people are just morons. El Salvador saying, I can't just bring somebody into the United States because the United States has complete authority over that.
And then you have the United States saying, well, this person is being held by El Salvador. We have nothing to do with it. In the same meeting, the same meeting where...
It's obviously a consensual meeting where there is obviously mutual understandings going on. And they have the president talking about how he wants to use El Salvador to build more prisons, to house more people, including Americans. That would suggest a level of control and persuasive authority. And as I said, he hasn't even asked to have Mr. Abrego Garcia returned. So this is just, if it weren't so serious, I mean, it's just a joke, right?
And then let's talk about the rebranding because there are various statements that have been made. And I'm going to read from one, which is from Kristi Noem. And then, Mary, I'll turn it over to you to talk about Stephen Miller.
So just to be fair, I want to I'm going to read the whole quote from Secretary Noem. And let's also add, even though these quotes were originally made in other media, DHS put out a press release in order to put all these quotes in one place. It was an in case you missed it. DHS sets the record straight about Kilmar Abrego Garcia. Right. This is from the Department of Homeland Security itself putting this out. So these are adopted by the government.
And so for people who don't know, Secretary Kristi Noem is the secretary for the Department of Homeland Security, DHS. And this is the quote. This is just one of those examples of an individual that is an MS-13 gang member, multiple charges and encounters with the individuals here, trafficking in his background, was found with
So, again, there was—I just want to sort of not be triggered by this and make sure people understand. One, it is remarkable to me that—
that even if what she were saying is true, that does not mean that he's not entitled to due process. The Supreme Court of the United States actually has ruled on that issue of what people are entitled to in terms of a pre-deprivation hearing. And they conceded that they have the legal ability to do all of this. And I just, I keep on hitting this because I don't want people to think, oh, it's only because he's somehow innocent.
and he's not a gang member, that this is an issue. That is why it has taken on a sort of life of its own, and it's such a useful...
point to a news story, but it is just as pernicious, maybe even more so, when somebody is, in fact, charged with a crime and maybe, in fact, be guilty. That is not how our system works. This, again, goes back to John Adams representing accused British soldiers in the 18th century. That is what it means to be a rule-of-law country.
It's making sure that you apply the rule of law when you have a particularly heinous or unpopular person. But the second is these spurious allegations have not been proven. That's right. There's no factual record for this. There's no multiple charges against Mr. Abrego Garcia. There's been zero criminal charges against him. Exactly. And this is one where, again, there is a forum if the government has that proof to present it.
and to go forward with that. But you would think if you did have that proof that it might have been represented and put forward at the district court or court of appeals level. And instead, to make sure people understand, the Fourth Circuit noted there was no evidence presented of MS-13 gang membership by the government. And so it is both legally irrelevant and
in this proceeding, but it is also contrary to the factual record in this proceeding. Okay. Stephen Miller, right? White House Deputy Chief of Staff. Talk about the rebranding. Now, I alluded up at the top of the podcast...
to Stephen Miller at best parsing splitting hairs, but at worst just outright lying about the Supreme Court's ruling. Again, this is about a narrative that they want the American people to believe. Here's what he said. The Supreme Court said the district court order was unlawful and its main components were unlawful and reversed 9-0 unanimously.
stating clearly that neither the Secretary of State or President could be compelled by anybody to forcibly retrieve a citizen of El Salvador from El Salvador, who, again, is a member of MS-13, which, as I'm sure you understand, rapes little girls, murders women, murders children, is engaged in barbaric activities in the world, and I can promise you if he was your neighbor, you would move right away.
All right. Let's set aside the second half of that because you've already told us all about the fact that there's just no proof in the record of that. Right. The
The first part, again, the Supreme Court made clear that the district court had properly ordered that the government should facilitate the release of Mr. Abrego Garcia from custody in El Salvador and that should ensure that he has the process he would have been due before he ever was sent there. That is what they did by all accounts 9-0, no noted dissents. The only thing that they said was when it comes to effectuate
clarify what that means with due regard for executive authority over foreign powers. So maybe he can, you know, Stephen Miller would say, that's what I meant when I said that the Supreme Court 9-0 said that the secretary of state and president cannot be compelled to forcibly retrieve a citizen. Okay, I'm going to give him the benefit of doubt on that. But there is no way you could say that the district court order was wrong
reversed 9-0 or that its main components were unlawful because that is just not the truth. It's not what the Supreme Court ordered. But here, this is what people are consuming when he's saying this to the press, putting out press statements, you know, going on different television stations and otherwise,
to say that. I saw a headline that he is claiming that the first attorney who ever told the court in candor that it was a mistake that Mr. Obrego Garcia had been sent to El Salvador, that he said that that was sabotage from a DOJ lawyer. So this is the extent to which Mr. Miller is going to sort of create a different narrative here. So what do we do about it? Before we transition out, let's get practical here. Mary, I was going to ask you, what are you looking for? Because there's going to be a hearing conversation
coming up today. I know you wrote about it. And if you were the district court, what would you do here? What's the upshot? That's the key issue. What should people look for? What would you do? So there's a couple of things going on here. One is she's trying to get answers to her questions because she and the Supreme Court have said you've got to facilitate the return. So one is I need those answers. And the second is if you're not giving them to me and he's not being returned, government
Are you in contempt of court, right? Are you now in violation of the court's orders? CEG Judge Boasberg. I mean, just so you know, everyone needs to know Judge Boasberg is currently wrestling with that. We're waiting for a decision from him. That's right. So...
the first thing I would do if I were her is I would say, I don't need declarations anymore because you're not answering my questions in these declarations. All you're doing is frankly raising more questions. And it appears that you're essentially making up things as you go along, making up new reasons that we had never heard before you started filing these. And second, I want somebody here, government,
Somebody here from the Department of Homeland Security, from the Department of State, who has been personally involved in the efforts to facilitate the return of Mr. Abrego Garcia, I want them here to testify in court. Now, to those listeners who are saying, can she order that? Well, she can order it in this sense, saying that's who I need to hear from. And if you don't,
then you will be in contempt because you have not shown me that you're complying with the court's order. I totally agree. I actually was on with Jen Psaki this Sunday and made a similar point, but much, much less clear.
coagulantly and inarticulately compared to your really terrific piece in the Washington Post, which I highly commend. Again, it's in our show notes. Mary, let's assume that the government does what it continued to do, which is the person doesn't show up.
And instead, a lawyer shows up. They don't have personnel knowledge. They don't even answer the question of, have you asked for his return? I mean, the most basic to me, that's like the most, I keep, I'm being a dog with a bone, but like, how about that question? Yeah.
Yeah. Because of course it would be complied with. I mean, you really like Donald Trump likes to think he's the most powerful person on the planet. He's busy effectuating all sorts of economic policy that's, let's just say, controversial. Yes. And to influence countries to do things and not do other things. And yet, like, here's this question, have you asked for the return? So let's assume this. I know lots and lots of people have asked me this question, you this question. We get it to our podcast.
Let's assume the government doesn't comply. I mean, there are a variety of options. None of them are great, though, to be honest, right? I mean, there are sanctions that can be imposed because of the contempt, because of the refusal to follow the court's order, the refusal to either facilitate or provide information about efforts to facilitate. Those sanctions can include fines against the government. They can include fines against individuals. They can actually also involve imprisonment.
And so there's a sort of an escalating set of sanctions. And we've certainly seen this in the past in other cases. I will say the courts, particularly at the higher levels, can be rather hostile to some of what lower courts will sometimes order as sanctions when they are the ones dealing, you know, one on one with the government.
if the government is obfuscating and not being cooperative and following a court's order. So this is where we get into the, I mean, it's not that there are no remedies, that's for sure. But it is true that the government would not be able to, like, order El Salvador to return him or, you know, order if he's not under arrest
U.S. authority or, you know, order things that would tread too far, as the Supreme Court said, into foreign relations. The problem is that gives the government wiggle room here. And that wiggle room is exactly what they're taking with all this wiggling around in every declaration. But to be clear, to go back to some things that they can do, this is something that can be found to be civil contempt. That is contempt of a judge's order.
The judge then can use the refusal to answer as an inference against the government in terms of finding facts,
And just as an example, we saw that with Judge Beryl Howell in the Rudy Giuliani case where he violated multiple discovery orders. And so there were sanctions that included findings against him because he hadn't complied. So they can use it in the case. They can also, as you said, impose fines on the government. If the contempt is found to be personal, they can impose it on the person.
They can also, if it's serious enough, they can actually impose jail as a civil contempt remedy. The idea is that you jail somebody until they comply with the order and
And that is something that can be ordered if a judge finds that. I actually dealt with that a lot when I was dealing with organized crime work as a government prosecutor. I dealt with the sort of various issues that come up when a mobster refuses to testify without a valid privilege. There can be fines, there can be jail terms. And then if it's a lawyer who's doing this, there can be ramifications in terms of their bar license. Right.
With referrals. So there are tools in the arsenal. It is just so rare to see when you're dealing with the government. That's right. Because the government has an obligation, obviously, as an oath of office. They have a duty of candor.
As the chief justices said, I mean, you know, a court order is something you comply with. And then if you disagree with it, you can appeal it. So we may again get to that because we're dealing with the same thing before Judge Boasberg. So this is a good segue to speaking about the Judge Boasberg case, because people remember that the decision from the Supreme Court there that said these people are entitled to
to a due process hearing before the deprivation that is before being removed. But the issue that the court split on was whether it has to be habeas or whether it had to be the Administrative Procedures Act and said it has to be done by habeas. Well, what happened? What happened was the plaintiffs read that and complied with it. Filed habeas. Exactly. So they filed habeas in New York
And in Texas. Why in those two locations? Because that's where the plaintiffs were that were being represented. The original five plaintiffs. Exactly. So two of the plaintiffs, because they had counsel, were able to be taken off the plane and didn't end up in El Salvador. And so they were housed in, are housed in New York. So the habeas was filed in New York.
And the judge there, what did he do? He issued a stay. The TRO, like you cannot deport these people. He issued a class certification, too, not for the nation, but for anybody in the Southern District of New York who's either currently in detention or will be in detention, cannot be deported without notice and an opportunity to be heard.
Right, which is totally in compliance with the Supreme Court's decision. Exactly. And you know what? People were thinking when that decision from the Supreme Court came down, oh, it's a ruse to get it to Texas. And, you know, that's a favorable venue for the government. Well, guess what happened, Mary, when the habeas was filed in Texas? Temporary restraining order, class certification applicable there in the Southern District of Texas. I think it was the Southern District, Brownsville. Yes, that's about almost as
far south as you can go. Same thing, temporary restraining order. You cannot deport these people without noticing an opportunity to be heard. I will also say both judges ordered they can't be transferred either without noticing an opportunity to be heard. So they can't pull some shenanigans. It's like,
okay, we're not going to give you notice in New York, so we're going to quickly transfer you someplace else so that it's almost like a whack-a-mole. Anytime we transfer you, as soon as you file habeas there, oh, you're not there anymore, right? So it's kind of like, don't move these people until they get hearings. That was like the next day after the Supreme Court, too. It was so fast. This is good news in terms of what you are seeing. I want to make sure people understand this, is you are seeing judges across the country, judges appointed,
as we've talked about on this podcast, judges appointed by Democrats and Republicans, including judges appointed by Donald Trump, upholding the rule of law. And so there is good news here in terms of what the courts are doing in terms of upholding what's going on. But it is a real sign of where the...
The administration is that you're seeing this sort of uniform, almost uniform sort of resistance to the lawbreakers.
Okay, Mary, shall we take a break and come back and talk about the Department of Justice and briefly sort of outline some things that have caught our attention but haven't really hit the larger media as sufficiently. We want to make sure that our listeners are attuned to this. Sounds good.
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Mary, one of the things that you highlighted when we first started and has gotten a little attention but not a lot is an environmental case that the Department of Justice brought that has now been scrapped. What was that case about and what is the current department doing? And this might, by the way, fall into the category of it's lawful, meaning that the department has the discretion to do this legally.
But as a policy matter, we want to flag this because many of our listeners may think this is really outrageous. Yeah. So back in 2021, the Department of Justice and the Department of Health and Human Services launched an investigation into whether the Alabama Department of Public Health's conduct violated civil rights laws for discriminating on the basis of race,
in terms of federally funded programs in this majority Black county in Alabama that was facing public health threats from the fact that raw sewage would back up into their yards because of the lack of adequate sanitation systems and drainage systems.
Given the heavy clay content of the soil there and anybody who's ever lived anywhere where your soil is clay, you know exactly what I'm talking about. Water doesn't go through it easily. And the public health consequences of this was why the Department of Health and Human Services was part of this investigation. That investigation resulted in an agreement with Alabama's Department of Public Health
to put certain resources into sanitation systems there and to also not criminalize people living in the county who were doing their best to kind of rig up methods of getting the waste out that they had actually been, in some cases, prosecuting people for creating these systems that they needed to do to try to, frankly, keep themselves safe.
So it was a first of its time interim resolution agreement. It came out to a lot of publicity when this agreement was reached. And what we got on Friday was the Department of Justice announcing that it will immediately close what they deemed an environmental justice matter. And I will say the previous DOJ also called it an environmental justice matter. That's not just
something that this administration came up with. But I think it's extraordinary what the newly confirmed assistant attorney general for civil rights at DOJ had to say about the termination of this agreement. Remember, this was an agreement. It wasn't a court order that they had gotten. This was an agreement with Alabama. He said, "'The DOJ will no longer push environmental justice as viewed through a distorting DEI lens.'"
President Trump made it clear Americans deserve a government committed to serving every individual with dignity and respect and to expanding taxpayer resources in accordance with the national interest, not arbitrary criteria. Now, we could spend an entire segment talking about what it means to treat individuals with dignity and respect. I'll just say having raw sewage backing up in their yards and their houses is not dignity and respect.
And the type of programs here are not DEI programs. But that's the label being put on it, and it is now gone. I will say one happy thing. Alabama Department of Public Health says they are still going to try to do what they had promised to do under this agreement. And where...
governmental action or private action is disproportionately affecting people of a certain race, ethnicity, sex, class, that does not make it a DEI matter. That
That is something that is still even-handed. There's so much more to say about this, but I wanted to relate this to something that has just happened, which is the continued tack on academic institutions. This is, by the way, not an original point. I'm going to give a shout out to Lawrence O'Donnell, who noted this on his program last night, and I thought it was just an excellent, excellent point.
The government's letter to Harvard basically saying that it is going to take steps with respect to its funding if it does not agree to a whole series of steps that basically have, I mean, this is not hyperbole, a takeover of the government of who it hires, who gets promoted, what roles they have. What students they admit. Yeah, what power.
I mean, just a wide attack on academic freedom. The letter itself says it's an attack and says we don't believe in diversity and DEI has to be eradicated at the same time that it says we want diversity when it comes to diversity.
of conservative viewpoints. So viewpoints diversity is fine if it helps, you know, mega Republicans, but apparently not okay if it's not the diversity that they value. The argument for diversity, one of them at universities, is exactly that that sort of confluence of viewpoints and conservatives
experiences is valued and necessary and is taken into account. And as the Supreme Court has said, it is legal and lawful to be considering the background and experiences of every applicant. And so a Black applicant can talk about their own experience in the same way that any white applicant could. That's sort of the example that was given by Ketanji Brown Jackson that the court agreed with.
And so this is one where that hypocrisy is on the face of the letter and is really, you know, a dog whistle, if not, you know, megaphone on this issue of race and xenophobia that's going on in the administration. We have a lot more to, I think next week, we're going to really try and dig deeper on what is happening with academic institutions today.
and talk more about the specific measures that are being proposed with respect to Harvard. We'll have more about the litigation that is going on. They have now sued for a TRO. They said, we're not doing that. And so they sued and Trump came back saying, we're freezing $2 billion in funding to Harvard. Yeah.
And that's where that standoff is. And yeah, much more on that next week. This saying the quiet part out loud, you know, this is a theme and we're not going to have time to get fully into it. But, you know, I mentioned at the top of the hour, we've now seen the first executive orders directed
solely to a person. Now, there have definitely been people mentioned in other executive orders directed at law firms, people who had worked at those law firms who President Trump perceives as political enemies that were a major reason why he targeted those law firms. And in fact, we've had another targeting and another executive order of a law firm this week, or I guess it was late last week. That's Sussman Godfrey. They have now filed their motion for a TRO. That's being heard today, I believe.
in the district court in the District of Columbia. I suspect that one will turn out exactly like the other three, which is in a TRO. But we've seen now targeting of two individuals sort of by name, Miles Taylor and Chris Krebs. Both were former DHS officials under Trump 1. Miles Taylor ended up writing a book about his experience, and that's why the president is so against him.
Chris Krebs, who was head of CISA, the Cybersecurity and Infrastructure Security Agency within DHS. One of their jobs is to provide support to elections, state and locals who do the actual putting on of elections around the country, but they provide a lot of cybersecurity support. One of the things that Chris Krebs had said after the 2020 election is this is the most secure election we've ever had. And there's, you know, no evidence of sort of like
foreign interference or hacking in and changing boats or anything like that. That earned him a firing by Donald Trump during Trump 1 and has now earned him, along with Miles Taylor, a targeted executive order targeting them, directing security clearances
be remote, but also directing investigations of their conduct. Not clear exactly what type of investigations those are, but of their conduct to see if they mishandled classified information. Of course, that would be a criminal offense or could be a criminal offense. It doesn't have to be. Or other things they might have done. And I will note, with respect to Miles Taylor,
The president actually, I think, refers to treasonous conduct in his opening preamble paragraph. So this is this terrible to be targeted this way. It's such a violation of constitutional rights. And arguably, it's like, you know, an ex post facto type of law, which we usually think of something that Congress can't do. But I think the principles there would also apply to executive actions.
So, so much more on the retaliation and retribution front that we do want to get into. But we have been talking for a really long time and we're just going to have to come back to these things. It's not that they're not important because they're very, very important. There's only so much we can cover at all this time. My only comment on Chris Cripps and Miles Taylor, whose names may not be sort of front of mind for our audience, is that there's
to my mind, there's a reason that they were selected because they were, as you said, part of Trump 1.0. And the message is, if you disagree with my policies, if you push back on my policies, if you don't absolutely toe the line and parrot what I am saying, this is what you can expect. So it really is sort of the interim effect. You see it with respect to these executive orders, the ones on law firms, the ones that are dealing with
academic institutions. I mean, this is really important for people to look at this as a whole in terms of the strategy here. Just before we close, there's one more act of retribution this week that we at least have to mention. I mentioned at the top, but we can't get into it, which is the Associated Press sued after it was deprived of its privileges to be part of the press pool that covers
things that happened in the Oval Office and on Air Force One and elsewhere. A judge in the District of Columbia, D.C. District Court, agreed that this was not only viewpoint discrimination, but also First Amendment retaliation, ordered that the AP not be discriminated against. The
The government sought a stay of that. The judge said, I'll give you a stay until this Sunday. That was just two days ago. In case you're going to appeal, the government has appealed. They sought a stay in the Court of Appeals. The Court of Appeals has not granted that stay. That means the stay expired on Sunday, which means the AP, the Associated Press, and again, this is in retribution. And the judge was clear about this in his order. This is in retribution or retaliation, I should say, for refusing to call the Gulf of Mexico out.
the Gulf of America. That was the reason for this. The stay is no longer in effect. However, the D.C. Court of Appeals, and this is somewhat unusual to have an oral argument on a stay motion. They are having argument this week on Thursday on that. Right now, the stay is not in place. Nevertheless, my understanding from public reporting is that the Associated Press was not provided access to the Oval Office yesterday when other reporters were. So that would be, it appears to be a violation of the order.
One note that is positive to end on is that the district judge who issued this order was appointed by...
Donald Trump in the first administration and is an example of what we're talking about, which is that judges... Sticking up for the rule of law. Exactly. With that, thanks everyone for listening. Remember, you can subscribe to MSNBC Premium on Apple Podcasts if you want to get this show and other MSNBC Originals ad-free. You'll also get subscriber-only bonus content.
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This podcast is produced by Vicky Virgolina. Our associate producer is Jamaris Perez. Our audio engineers are Mark Yoshizumi and Bob Mallory. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. Search for Maine Justice wherever you get your podcasts and follow the series.
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