Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Liz Dye: Thank you for having me.
Dye: I can. This is one of the most interesting and upsetting cases that we’ve seen out of the Trump administration this second go-round. It’s really a terrifying confluence of both Trump’s authoritarian impulses and his willingness to take on the courts. Where we are now is that Trump has tried to dictate objective reality by executive fiat. He said that we are under invasion by Venezuela through these Tren de Aragua gang members—whom he refers to as shock troops—which is objectively false. Clearly, we are not. But what he wants, what he’s insisted that he has the power to do is declare it to be so and have this be an unreviewable declaration by the president. And he’s gone into court and basically defied the court’s order, as you said.
But what happened was at least two planes disembarked in El Salvador and left these men in the custody of El Salvadoran president Nayib Bukele, who then tweeted “Oopsie... Too late” with a cry laughing emoji and apparent defiance of the order. These men are now confined in what’s known as the Terrorism Confinement Center. It’s a grossly inhumane, basically slave labor holding facility where the men are housed in communities. They look like battery hens in the picture. They never go outside. They’re only allowed outside the cells for 30 minutes a day. And then Bukele tweeted a video. It was like a music video; it had a soundtrack of these men getting off the planes and being taken into the facility, having their heads shaved.
Sargent: MAGA rage at this judge right now is tremendous due to everything you’re talking about. Even Trump himself has called for his impeachment. But Politico reports that House Republicans and Speaker Mike Johnson dread this prospect because with their razor-thin majority, they won’t have the votes and they don’t want to sink enormous amounts of time into an impeachment. I don’t think this is something vulnerable House Republicans would want to vote on. They know it would look batshit crazy to swing voters. What do you make of that?
Sargent: Yeah, absolutely. But at the same time, behind all that noise, the administration is clearly debating how far to go in defying the courts. In your piece, you flagged an important exchange in which Attorney General Pam Bondi went on Fox News and talked about this judge. First, Bondi slammed the judge for blocking the deportation flights, claiming he has no authority to intervene in the president’s handling of foreign affairs. I guess she meant that he’s executing the Alien Enemies Act with these deportations. Then this question and answer happened.
Pam Bondi (audio voiceover): Absolutely. These are foreign terrorists. The president has identified them and designated them as such. And we will continue to follow the Alien Enemies Act.
Dye: I think that they’re not doing that right this minute because they’re embroiled in this controversy over whether they’re in contempt of court. And they very much hope that the D.C. circuit is going to give them what they want and say this is an unreviewable exercise of executive power. I don’t think that they’re going to rock the boat right this minute.
Dye: Yeah, I think that they might do it. We are certainly headed for that kind of constitutional crisis. At this point, it would appear to be that they are in defiance of several court orders, not just in this case. What they are doing right this minute is going into court and having the Justice Department lawyers say, No, we really, really are complying. We are very close in this case, though, because of developments this afternoon as we record. As we said, we had this issue of contempt of court, and Judge Boasberg said, Hey, explain yourself. Tell me how you didn’t define my order. And now the administration is talking about invoking the state secrets privilege to not discuss things—which, of course, Marco Rubio has been tweeting about it, President Nayib Bukele has been tweeting about it. To say we have to invoke the state secrets privilege when we just tweeted out a music video of what happened here is strange credulity.
Dye: No, that’s not quite right. They’re trying to invoke the state secrets privilege to cover up the fact that they are in open defiance of the court, that when the judge said turn the planes around, they still could have turned the planes around. So he said, Come in and explain to me how you didn’t defy me, and they’ve said, We can’t explain because of national security, which I don’t think that’s going to go over.
Dye: Well, that’s exactly right. Trump has arrogated to himself the ability to define reality, so he says, These guys are Tren de Aragua. They’re so dangerous. Pam Bondi goes on television and says, We deported terrorists. But there’s no evidence that that’s the case. In fact, there’s a lot of evidence that it is not the case.
Dye: Yes, I’m actually looking at that affidavit right now. What he has is a tattoo of the Real Madrid logo; he is a soccer coach. What he has is a crown over a circle and a soccer ball with the rosary and it says “Dios.” And the affidavit says DHS alleges that this tattoo is proof of gang membership. In reality, he chose this tattoo because it is similar to the logo for his favorite soccer team, Real Madrid. So clearly, that’s not a gang tattoo. And the picture is of him throwing what we would call the “hang ten” sign; when we were kids, that’s what they called it. It probably has a cooler name now, but it’s obviously not a gang symbol. It looks like the Texas Longhorns symbol. It’s preposterous on its face. This is not somebody who had any reason for being a terrorist.
Sargent: I just want to be clear: There is nothing resembling due process here for these men, is there?
Sargent: I want to get another aspect of how crazy this is. The Trump administration is paying El Salvador’s authoritarian government $6 million reportedly to hold these migrants that they’ve deported. I’m wondering, Does the administration have the legal authority to pay this money to a foreign government to jail people abroad, some of whom were lawfully in the U.S. but removed without due process under U.S. law? Is there the authority to do that?
Sargent: Right. Is there a way to challenge it legally?
Sargent: Seems likely. Going forward, where do you see this headed? What’s going to happen under this judge? This judge has been extremely harsh on what he sees as major violations. What happens before this court, and what happens after that?
Now, I should note that the president has said, I don’t have to do it through the Emergency Act. I can do it, I can deport these men pursuant to my own Article 2 inherent powers. That’s going to be a serious conflict if Trump says, as he said, I have an Article 2, and it’s very powerful, if he assumes dictatorial powers and says, I’m complying with the order, I’m just doing it based on some other power.
Dye: Right. Or I have the inherent power to do this in any time because I’m the president and the president gets to control foreign policy. We’ve seen him take that position in all the rest of this litigation. If a judge says, You can’t cancel these USAID contracts in bulk, he says, No, I didn’t cancel all of them pursuant to this executive order. I canceled them one by one. I just happened to do 2,000 this morning on an individualized basis.
Dye: Well, the Supreme Court is going to have to deal with precedents that are highly deferential to the president’s determination that there is an emergency. Here, they’re going to have to decide whether he gets to decide a reality by executive fiat. We are patently not at war. We are certainly not at war with Tren de Aragua, a handful of violent gang members, of course. And the Supreme Court will have to decide whether, on an individualized basis, any of these men get to make their claim that they are not gang members. I think it’s a deeply concerning precedent, and I think that Chief Justice Roberts understands how freighted it is on all kinds of levels.
Dye: If they say that you cannot use the Alien Enemies Act to deport when we’re not in a wartime posture, it will be a significant curb to Trump’s powers because Trump has said, I’m going to pull the fire alarm basically and take advantage of this emergency to do things that I couldn’t do by statute or that are illegal or that I can’t get through Congress. So he would not have any legal basis for deporting these men to Salvadoran prisons. And I think what you’re asking me is: What if he does it anyway? Are we in the Andrew Jackson [stage of] “the court has made its ruling, let them enforce it”? That’s a serious constitutional crisis. I don’t think we’re there yet, but I don’t think we’re that far from it.
Dye: Thanks for having me.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.
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