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Stephen Miller’s Snowballing Deportation Deceptions

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I want to tell the story that NYT reports about Trump’s deal with Nayib Bukele to send people the Administration claims to be members of Tren de Aragua (TdA) to his concentration camp, including the critical details they left out. The entire deportation regime associated with TdA is built on a series of Stephen Miller lies, and as courts move towards discovery with the goal of holding those responsible in contempt, the stakes of Miller’s lies are going up.

As NYT’s stories lay out, starting at least as early as 2023, Stephen Miller viewed the Alien Enemies Act as a way to deport people with no due process.

Mr. Miller had long been interested in the Alien Enemies Act, a law passed in 1798 that allows the U.S. government to swiftly deport citizens of an invading nation. The authority has been invoked just three times in the past, all during times of war. He saw it as a powerful weapon to apply to immigration enforcement.

The law “allows you to instantaneously remove any noncitizen foreigner from an invading country, aged 14 or older,” Mr. Miller told the right-wing podcaster Charlie Kirk in a September 2023 interview, adding: “That allows you to suspend the due process that normally applies to a removal proceeding.”

During the campaign, Trump made overblown claims about TdA and Aurora, CO central to his campaign, and in real time associated those false claims with the AEA.

Though not mentioned in NYT’s opus, NYT’s Jonathan Weisman described the source of the false claims in September 2024. The claims about Aurora had been pitched by a slum landlord from NY — a man after Trump’s own heart — trying to project blame for his own neglect in caring for his properties, which quickly turned into a propaganda spiel on Murdoch outlets.

As far back as May 2023, Aurora officials had been trying to force an out-of-state landlord to fix up three blighted apartment complexes in the downtrodden East Colfax Corridor, which connects the cities of Denver and Aurora.

In July 2024, the landlord, CBZ Management, which says it is based in Colorado and Brooklyn, offered a new argument for why it couldn’t repair the buildings: Venezuelan gangs had taken over, and the property managers had been forced to flee.

Mr. Coffman and a Republican City Council member, Danielle Jurinsky, quickly repeated CBZ’s unverified claim in interviews.

“We have areas in our city, unfortunately, that have been taken, and we have to take back,” Mr. Coffman told a local talk radio host on July 31.

On Aug, 5, a public relations agent, Sara Lattman, hired by CBZ, pitched a “tip” to the local Fox television network affiliate in Denver.

“An apartment building and its owners in Aurora, Colorado have become the most recent victims of the Venezuelan Gang Tren de Aragua’s violence, which has taken over several communities in the Denver area,” she wrote on Fox 31’s tip line, according to an email obtained by The Times. “The residents and building owners of these properties have been left in a state of fear and chaos.”

But it was a viral video that began circulating in late August that shows armed men in the hallway of one of the complexes that ultimately caught Mr. Trump’s attention. The incident was reported as a connection to gang violence, particularly the Venezuelan gang Tren de Aragua, though documentation was scarce.

On Tuesday, the Aurora Police Department announced it had arrested 10 members of Tren de Aragua on charges of ”felony menacing,” attempted first-degree murder, assault, child abuse, domestic abuse and others. But Todd Chamberlain, Aurora’s new police chief, could not say whether any of those men were among those seen in the video, or whether any in the video had actually done anything criminal.

Still, the clip, taken by a resident and played on endless loops on Fox News Channel and the website of The New York Post, metastasized into grandiose stories of whole buildings, whole sections of town and, in Mr. Trump’s telling, the whole city of Aurora being taken over by migrants carrying weapons of war.

”And getting them out will be a bloody story,” Mr. Trump said of Aurora at a rally in Mosinee, Wis., last Saturday, adding that it was “not going to be easy, but we’ll do it.”

Mr. Coffman and Ms. Jurinsky have both since backtracked.

“The overstated claims fueled by social media and through select news organizations are simply not true,” they wrote in a joint statement released Wednesday that appeared aimed at pushing back on Mr. Trump’s debate comments.

That culminated in a Trump rally on October 11. Miller served as Trump’s opening act, using posters of alleged TdA members (just like those Trump set up outside the White House the other day) to rile up the crowd.

Here’s how NYT’s Michael Gold and Jonathan Weisman described the rally, including their cautions about Trump’s reading of the AEA, something that didn’t make NYT’s opus yesterday.

Former President Donald J. Trump escalated the nativist, anti-immigration rhetoric that has animated his political career with a speech Friday in Aurora, Colo., where he repeated false and grossly exaggerated claims about undocumented immigrants that local Republican officials have refuted.

For weeks, Aurora has been fending off false rumors about the city. And its conservative Republican mayor, Mike Coffman, said in a statement on Friday that he hoped to show Mr. Trump that Aurora was “a considerably safe city.”

But Mr. Trump has made debunked claims about Aurora, a Denver suburb, such a central part of his stump speech that he took a campaign detour to Colorado, which has not voted for a Republican in a presidential election since 2004, to make the case in person at a rally at the Gaylord Rockies Resort & Convention Center.

And during a meandering 80-minute speech Mr. Trump repeated claims, which have been debunked by local officials, that Aurora had been “invaded and conquered,” described the United States as an “occupied state,” called for the death penalty “for any migrant that kills an American citizen” and revived a promise to use the Alien Enemies Act of 1798 to deport suspected members of drug cartels and criminal gangs without due process.

That law allows for the summary deportation of people from nations with which the United States is at war, that have invaded the United States or that have engaged in “predatory incursions.” It was far from clear whether the law could be used in the way that Mr. Trump was proposing.

[snip]

The city put out a statement on Friday pre-emptively fact-checking the former president ahead of his rally.

“A gang has not ‘taken over’ the city,” it said. “The overstated claims fueled by social media and through select news organizations are simply not true. It is tragic that select individuals and entities have mischaracterized our city based on some specific incidents.”

Major crimes, it continued, are down more than 17 percent in Aurora. And “the city is actively deploying every legal tool to ensure CBZ Management is accountable for its properties and meets its responsibilities.”

After the rally, Mr. Coffman, the mayor, said that he was “disappointed that the former president did not get to experience more of our city for himself” and that “the reality is that the concerns about Venezuelan gang activity in our city — and our state — have been grossly exaggerated and have unfairly hurt the city’s identity and sense of safety.”

“The city and state have not been ‘taken over’ or ‘invaded’ or ‘occupied’ by migrant gangs,” he said. “The incidents that have occurred in Aurora, a city of 400,000 people, have been limited to a handful of specific apartment complexes, and our dedicated police officers have acted on those concerns and will continue to do so.” [my emphasis]

Weisman described the opposition from local politicians that same day.

Mike Coffman, the conservative Republican mayor of Aurora, Colo., had a message for former President Donald J. Trump before the Republican nominee for the White House came on Friday to a city he has repeatedly painted as having been taken over by vicious migrant street thugs.

The visit, Mr. Coffman said in a statement to The Times, “is an opportunity to show him and the nation that Aurora is a considerably safe city — not a city overrun by Venezuelan gangs. My public offer to show him our community and meet with our police chief for a briefing still stands.”

It is not a message likely to get through.

In the closing weeks of Mr. Trump’s campaign, his efforts to demonize immigrants, whether they are from Venezuela, Haiti or elsewhere, have gotten ever more lurid — and more impervious to the facts, even those provided by Republican allies such as Mr. Coffman. Last month, the former president began portraying Aurora, a sprawling suburb of Denver, population 404,219, as “a war zone” overrun by a violent Venezuelan street gang, Tren de Aragua.

Despite the entreaties of Aurora city officials in both parties to stay away, Mr. Trump took his case to Aurora itself on Friday. He was there for an afternoon rally at the Gaylord Rockies Resort & Convention Center, a location that is decidedly not overrun by Venezuelan gangs.

He is not welcome, declared Crystal Murillo, a Democratic city councilwoman and a Mexican American.

“My message is, Trump doesn’t belong here,” she said in an interview. “His divisiveness, his rhetoric, is not what Aurora is about.”

When Tim Walz and others called out the lies Trump was telling in real time, Miller accused them then (as he is now) of defending gang members.

Even though the claims Trump made about Aurora during the campaign were built on exaggerations and lies, ICE did a high profile raid in the city early in Trump’s term, on February 6, with Fox News’ chief immigration propagandist Bill Melugin in tow.

The raid found only one TdA member.

On Thursday, shortly after the raid, the Fox News propagandist whose job it is to stoke fear about migration, Bill Melugin, first celebrated the “massive” raid, only later to reveal the raid had resulted in far fewer arrests than promised and just one arrest of a Tren de Aragua member. ICE immediately blamed its failure to detain more people on leaks.

That same day, Tom Homan announced he may have to halt the kind of embed ICE has been all too happy to give Melugin, because of leaks or operational security; he did not say that truthful reports to Fox viewers about his failures gets him in trouble with the boss. Tom Homan can’t afford to have Trump know that this massive raid found only a single Tren de Aragua member.

Kristi Noem blamed the failure to find numbers of TdA members that might substantiate Stephen Miller’s false claims about the gang on leakers. Tom Homan claimed to have identified the leakers on February 26, but they have not yet been charged.

In the wake of the raid that failed to substantiate the false claims and overblown promises he made during the election, Trump started bitching that ICE wasn’t meeting his promised deportation targets (they still aren’t, though they have shut down new migration). Tom Homan and Stephen Miller were failing to fulfill Trump’s top campaign promise, a promise built on Miller’s lies.

Agents at Immigration and Customs Enforcement are under increasing pressure to boost the number of arrests and deportations of undocumented immigrants, as President Donald Trump has expressed anger that the amount of people deported in the first weeks of his administration is not higher, according to three sources familiar with the discussions at ICE and the White House.

A source familiar with Trump’s thinking said the president is getting “angry” that more people are not being deported and that the message is being passed along to “border czar” Tom Homan, Homeland Security Secretary Kristi Noem, White House Deputy Chief of Staff Stephen Miller and acting ICE Director Caleb Vitello.

“It’s driving him nuts they’re not deporting more people,” said the person familiar with Trump’s thinking.

[snip]

Meanwhile at ICE, Vitello told agents in January to aim to meet a daily quota of 1,200-1,400 arrests. According to numbers ICE has posted on X, the highest single day total since Trump was inaugurated was just 1,100, and the number has fallen since that day. On Tuesday of this week, arrests of immigrants were over 800, according to a source familiar with the numbers. But last weekend, there were only about 300 arrests, another source told NBC News.

In order to fulfill Trump’s Inauguration Day promise of “millions and millions” of deportations, the Trump administration would have to be deporting over 2,700 immigrants every day to reach 1 million in a year.

And, as NBC News has reported, arrests do not always equal immediate detentions, much less deportations. Of the more than 8,000 immigrants arrested in the first two weeks of the Trump administration, 461 were released, according to the White House.

Later that month, on February 26 (the same day Homan claimed to have found the leakers), the Intelligence Committee did an assessment of the relationship between TdA and Nicolás Maduro’s government. Only the FBI believed there was a tie.

The intelligence community assessment concluded that the gang, Tren de Aragua, was not directed by Venezuela’s government or committing crimes in the United States on its orders, according to the officials, speaking on the condition of anonymity to discuss internal deliberations.

Analysts put that conclusion at a “moderate” confidence level, the officials said, because of a limited volume of available reporting about the gang. Most of the intelligence community, including the C.I.A. and the National Security Agency, agreed with that assessment.

Only one agency, the F.B.I., partly dissented. It maintained the gang has a connection to the administration of Venezuela’s authoritarian president, Nicolás Maduro, based on information the other agencies did not find credible.

“Multiple intelligence assessments are prepared on issues for a variety of reasons,” the White House said in a statement. “The president was well within his legal and constitutional authority to invoke the Alien Enemies Act to expel illegal foreign terrorists from our country.”

This NYT story is one of only two stories that Pam Bondi claimed to include classified information when she reversed protections on journalists (the other was this April 17 WaPo story reporting that a more formal National Intelligence Estimate also debunked the claim of ties between Maduro and TdA). Bondi wants to find the people who debunked this false claim, and she’s willing to use subpoenas to journalists or even warrants targeting them to do so.

NYT’s story yesterday described this assessment retrospectively — as something that led bureaucrats at State to grow concerned about their reliance on it.

During an internal State Department briefing about issues related to Latin America, some employees were dismayed to hear that weeks earlier, American spy agencies had assessed that Tren de Aragua was not actually controlled by the Venezuelan government — which was the premise for invoking the Alien Enemies Act.

What NYT couldn’t fit into a 4,000-word article is that this assessment preceded Trump’s AEA declaration — in which the asserted tie between TdA and Maduro was legally central — by more than two weeks.

Tren de Aragua (TdA) is a designated Foreign Terrorist Organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States. TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.

TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus. TdA grew significantly while Tareck El Aissami served as governor of Aragua between 2012 and 2017. In 2017, El Aissami was appointed as Vice President of Venezuela. Soon thereafter, the United States Department of the Treasury designated El Aissami as a Specially Designated Narcotics Trafficker under the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. 1901 et seq. El Aissami is currently a United States fugitive facing charges arising from his violations of United States sanctions triggered by his Department of the Treasury designation.

Like El Aissami, Nicolas Maduro, who claims to act as Venezuela’s President and asserts control over the security forces and other authorities in Venezuela, also maintains close ties to regime-sponsored narco-terrorists. Maduro leads the regime-sponsored enterprise Cártel de los Soles, which coordinates with and relies on TdA and other organizations to carry out its objective of using illegal narcotics as a weapon to “flood” the United States. In 2020, Maduro and other regime members were charged with narcoterrorism and other crimes in connection with this plot against America.

Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States. Indeed, in December 2024, INTERPOL Washington confirmed: “Tren de Aragua has emerged as a significant threat to the United States as it infiltrates migration flows from Venezuela.” Evidence irrefutably demonstrates that TdA has invaded the United States and continues to invade, attempt to invade, and threaten to invade the country; perpetrated irregular warfare within the country; and used drug trafficking as a weapon against our citizens. [my emphasis]

That is, Trump knew or should have known, when he made this invocation, it was based on claims his own IC would not substantiate. Only the agency run by Kash Patel would back that claim.

Trump made this invocation, per the NYT story, the same day that Trump finalized a deal with Nayib Bukele (NYT describes elsewhere the MS-13 members to whom Bukele did have a tie, that seem to have been included in the deal, but not here), and previewed its use in a presser at DOJ watched over by Stephen Miller.

On March 14, the Trump administration exchanged diplomatic notes with El Salvador laying out the terms: Mr. Bukele’s government would receive up to 300 members of Tren de Aragua in exchange for financial support from the United States.

That same day, Mr. Trump hinted at the forthcoming deportations during a speech at the Justice Department. Sitting in the front of the audience was Mr. Miller, who had moments earlier conferred with Todd Blanche, the deputy attorney general, about the pending deportations.

“We’ve caught hundreds of them, the Venezuelan gang, which is as bad as it gets,” Mr. Trump told a crowd of loyalists. “And you’ll be reading a lot of stories tomorrow about what we’ve done with them and you’ll be very impressed.”

That’s what triggered a hasty effort to put bodies on planes, a process riddled with error.

That presser is also what led ACLU to try to preempt precisely this AEA invocation, to successfully obtain an order enjoining deportations relying on Trump’s TdA AEA declaration, even as planes were departing enjoining such flights.

The President has invoked—or will imminently invoke—a war power, the Alien Enemies Act of 1798 (“AEA”), in an attempt to summarily remove noncitizens from the United States and bypass the immigration laws Congress has enacted. 1 In either circumstance, a Temporary Restraining Order is needed because there may not be sufficient time for this Court to intervene between the time when the Act is invoked and when the planes removing Plaintiffs-Petitioners depart the United States. 2

But the United States is not at war, and the prerequisites for invocation of the AEA have not been met. See 50 U.S.C. § 21. The President can invoke the AEA only in a state of “declared war,” or when an “invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” Id. Not surprisingly, therefore, the Act has been invoked only three times in our country’s history, all in declared wars: The War of 1812, World War I, and World War II.

The President’s imminent Proclamation targets Venezuelan noncitizens whom the government accuses of being part of Tren de Aragua, a criminal gang. But the President’s Proclamation is invalid under the AEA for two plain reasons. First, Tren de Aragua is not a “foreign nation or government.” Second, Tren de Aragua is not engaged in an “invasion” or “predatory incursions” within the meaning of the AEA, because criminal activity does not meet the longstanding definitions of those statutory requirements—and has never been a sufficient basis for the executive to cast foreign nationals as “alien enemies” subject to arrest, internment, and removal. As a result, the President’s attempt to summarily remove Venezuelan noncitizens exceeds the wartime authority that Congress delegated in the AEA, violates the process and protections that Congress has prescribed elsewhere in the country’s immigration laws for the removal of noncitizens, and violates due process.

Based on reports from Plaintiffs and legal service providers, the government has begun moving Venezuelan men who the government claims are part of Tren de Aragua to facilities in Texas.

1 See Remarks of President Trump, March 14, 2025 (addressing the Department of Justice) (“You will read in the papers tomorrow the bad thing we will do to Tren de Aragua.”).

2 See also Priscilla Alvarez, et al., Trump expected to invoke wartime authority to speed up mass deportation effort in coming days, CNN (Mar. 14, 2025), https://www.cnn.com/2025/03/13/politics/alien-enemies-act-deportationconsideration/index.html (“The Trump administration is expected to invoke [the AEA] to speed up the president’s mass deportation pledge in the coming days, according to four sources familiar with the discussions. . . . The primary target remains Tren de Aragua[.]”).

As described in this NYT story (and earlier ones), unnamed senior officials in the White House discussed whether to obey this order or not.

Inside the White House, senior administration officials quickly discussed the order and whether they should move ahead. The team of Trump advisers decided to go forward, believing the planes were safely in international airspace, and well aware that the legal fight was most likely destined for the Supreme Court, where conservatives have a majority.

At 7:36 p.m., the third flight took off. Officials would later say the migrants on that flight were not deported under the Alien Enemies Act, but through regular immigration proceedings.

The White House’s decision to press forward, despite Judge Boasberg’s order, raised questions about whether the administration was defying the court. The Justice Department has argued that a federal judge cannot dictate foreign policy.

No one is saying it, but there are a lot of breadcrumbs in this article and others that Miller was one of those SAOs who instructed that the flights should go even in spite of Judge Boasberg’s order. One big breadcrumb is that, as the story describes, even before inauguration, Miller told others not to worry about legal challenges to the means via which Trump planned to deport migrants, challenges like the one before Boasberg that, in real time, these SAOs assumed SCOTUS would make go away.

Stephen Miller, the main architect of Mr. Trump’s domestic agenda, had a message for other advisers inside the presidential transition offices in West Palm Beach, Fla.: Be bold. Do not worry about potential litigation, especially when drafting Mr. Trump’s immigration actions.

It was roughly a month before the inauguration, and Mr. Miller knew he needed to move fast to make good on Mr. Trump’s campaign pledge of mass deportations.

The Administration has invented flimsy excuses for why the planes flew in spite of Boasberg’s order, precisely the claimed belief that NYT accepts unquestionably, that the planes were in international airspace (NYT are more skeptical, as am I, that the third included only men against whom DHS had already obtained deportation orders). In finding probable cause that, “the Government’s actions on that day demonstrate a willful disregard for its Order, sufficient for the Court to conclude that probable cause exists to find the Government in criminal contempt,” Judge Boasberg was far less impressed with these excuses than the NYT.

As this was blowing up in the wake of Boasberg’s order, per the stories, Bukele asked for cover for the people delivered to his custody, for proof they were who Trump had said they were.

[W]eeks earlier, when the three planes of deportees landed, it was the Salvadoran president who had quietly expressed concerns.

As part of the agreement with the Trump administration, Mr. Bukele had agreed to house only what he called “convicted criminals” in the prison. However, many of the Venezuelan men labeled gang members and terrorists by the U.S. government had not been tried in court.

Mr. Bukele wanted assurances from the United States that each of those locked up in the prison was members of Tren de Aragua, the transnational gang with roots in Venezuela, according to people familiar with the situation and documents obtained by The New York Times.

The matter was urgent, a senior U.S. official warned his colleagues shortly after the deportations, kicking off a scramble to get the Salvadorans whatever evidence they could.

Mr. Bukele’s demands for more information about some of the deportees, which has not been previously reported, deepen questions about whether the Trump administration sufficiently assessed who it dispatched to a foreign prison. [my emphasis]

Something has been misunderstood about this passage, which describes Bukele’s concerns as retrospective (though he did reject Venezuelan women — which NYT notes — and one Nicaraguan — which it does not, and which debunks their claim that Bukele was willing to accept detainees of any nationality — in real time). Bukele asked for proof these people were criminals as this was all blowing up. By deciding to send the planes in defiance of Judge Boasberg’s order, Trump created problems for Bukele, problems that their utter failure to vet any of these people — their decision to let flimsy lies stand in for evidence — exacerbated.

Within a week, Trump was disavowing having signed the AEA proclamation relying on claims that his Intelligence Community had debunked weeks earlier.

President Donald Trump on Friday downplayed his involvement in invoking the Alien Enemies Act of 1798 to deport Venezuelan migrants, saying for the first time that he hadn’t signed the proclamation, even as he stood by his administration’s move.

“I don’t know when it was signed, because I didn’t sign it,” Trump told reporters before leaving the White House on Friday evening.

The president made his comments when asked to respond to Judge James Boasberg’s concerns in court on Friday that the proclamation was “signed in the dark” of night and that migrants were hurried onto planes.

“We want to get criminals out of our country, number one, and I don’t know when it was signed, because I didn’t sign it,” Trump said. “Other people handled it, but (Secretary of State) Marco Rubio has done a great job and he wanted them out and we go along with that. We want to get criminals out of our country.”

But when the conservative majority he banked on ruling for him twice did not, first ruling that detainees had to have an opportunity to challenge their deportation under habeas corpus, and then ruling that Trump had to “facilitate” Kilmar Abrego Garcia’s return, Miller blatantly lied at the Bukele Oval Office presser about what SCOTUS said, followed by a colloquy in which Trump got him to repeat his bullshit claims.

[T]here’s an illegal alien from El Salvador. So with respect to you, he’s a citizen of El Salvador. So it’s very arrogant, even for American media to suggest that we would even tell El Salvador how to handle their own citizens as a starting point, as two immigration courts found that he was a member of MS-13. When President Trump declared MS-13 to be a foreign terrorist organization, that meant that he was no longer eligible under federal law, which I’m sure you know, you’re very familiar with the INA, that he was no longer eligible for any form of immigration relief in the United States.

So he had a deportation order that was valid. Which meant that under our law, he’s not even allowed to be present in the United States and had to be returned because of the foreign terrorist designation. This issue was then, by a district court judge, completely inverted, and a district court judge tried to tell the administration that they had to kidnap a citizen of El Salvador and flying back here. That issue was raised with the Supreme Court.

And the Supreme Court said the District court order was unlawful and its main components were reversed 9-0 unanimously stating clearly that neither Secretary of State nor the 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 is, I’m sure you understand, rapes little girls, murders women, murders children, is engaged in the most barbaric activities in the world. And I can promise you, if he was your neighbor, you would move right away.

REPORTERS: So you don’t plan to ask for-

But the Supreme Court is asking to-

Donald Trump: And what was the ruling in the Supreme Court, Steve? Was it nine to nothing?

Steve Miller: Yes. It was a 9- 0-

Donald Trump: In our favor?

Steve Miller: In our favor against the District Court. Ruling saying that no district court has the power to compel the foreign policy function of the United States. As Pam said, the ruling solely stated that if this individual, at El Salvador’s sole discretion, was sent back to our country, that we could deport him a second time.

No version of this legally ends up with him ever living here because he’s a citizen of El Salvador. That is the president of El Salvador. Your questions about it per the court can only be directed to him.

It’s not just that Trump had Miller perform this for the press and Bukele. He also performed himself taking Miller’s false claims about what SCOTUS said as word, even as he continues to insist unnamed lawyers provide him legal advice that informs his own actions. This was Trump laying out his own plausible deniability in real time. It’s not his fault he continued to defy SCOTUS. He’s just getting demonstrably erroneous advice, from the guy who orchestrated this entire ploy years in advance, orchestrated the propaganda to justify the focus on TdA, and seemingly orchestrated the problematic AEA invocation as well.

It’s not Donald Trump’s fault.

It’s Miller’s, the gatekeeper who prevents any contrary information to make it to Trump.

And that’s the background to the second story describing how, in a week during which DOJ bought time, someone performed asking Bukele to send Abrego Garcia back and Bukele performed refusing to do so.

The Trump administration recently sent a diplomatic note to officials in El Salvador to inquire about releasing a Salvadoran immigrant whom government officials have been ordered by the Supreme Court to help free, according to three people with knowledge of the matter.

But the authoritarian government of Nayib Bukele, the leader of El Salvador, said no, two of the people said. The Bukele administration claimed the man should stay in El Salvador because he was a Salvadoran citizen, according to one of those people.

It remained unclear whether the diplomatic effort was a genuine bid by the White House to address the plight of the immigrant, Kilmar Armando Abrego Garcia, whom administration officials have repeatedly acknowledged was improperly expelled to El Salvador last month in violation of a court order expressly prohibiting him from being sent there.

NYT describes that their scoop came after Trump blew all this up in his ABC interview.

The revelation came just hours after the president, reversing course on his administration’s previous statements, said in an interview with ABC News that he had the ability to bring Mr. Abrego Garcia back. The president added that he did not believe Mr. Abrego Garcia was a good person and that his administration’s lawyers would decide. The Justice Department is also facing a court-ordered deadline of early next week to provide information about what it has done to seek his freedom.

This was certainly published after Trump’s comments. Is NYT really saying that this entire story came together in the wake of ABC’s interview (or airing thereof)?

Whatever the case, these details — and Judge Paula Xinis’ renewed discovery order — explain the stakes of the twin exchanges between Trump and Terry Moran the other day.

When Trump demanded Moran adopt his false claims about Abrego Garcia’s knuckles, he did so because Stephen Miller has left him politically exposed (though not legally, thanks to SCOTUS’ immunity order last year, which may explain why Trump is so openly defiant). Trump has to affirm Miller’s lies and his belief in them, just as he tripled down on his election lies as it became a criminal problem, because otherwise he has the kind of guilty consciousness and foreknowledge that could become a problem down the road.

PRESIDENT DONALD TRUMP: Wait a minute.

TERRY MORAN: I want —

PRESIDENT DONALD TRUMP: Hey, Terry. Terry. Terry.

TERRY MORAN: He — he did not have the letter —

PRESIDENT DONALD TRUMP: Don’t do that — M-S-1-3 — It says M-S-one-three.

TERRY MORAN: I — that was Photoshop. So let me just–

PRESIDENT DONALD TRUMP: That was Photoshop? Terry, you can’t do that — he had —

— he– hey, they’re givin’ you the big break of a lifetime. You know, you’re doin’ the interview. I picked you because — frankly I never heard of you, but that’s okay —

TERRY MORAN: This — I knew this would come —

PRESIDENT DONALD TRUMP: But I picked you — Terry — but you’re not being very nice. He had MS-13 tattooed —

TERRY MORAN: Alright. Alright. We’ll agree to disagree. I want to move on —

PRESIDENT DONALD TRUMP: Terry.

TERRY MORAN: — to something else.

PRESIDENT DONALD TRUMP: Terry. Do you want me to show the picture?

TERRY MORAN: I saw the picture. We’ll — we’ll — we’ll agree to disagree —

PRESIDENT DONALD TRUMP: Oh, and you think it was Photoshop. Well —

TERRY MORAN: Here we go. Here we go.

PRESIDENT DONALD TRUMP: — don’t Photoshop it. Go look —

TERRY MORAN: Alright.

PRESIDENT DONALD TRUMP: — at his hand. He had MS-13 —

TERRY MORAN: Fair enough, he did have tattoos that can be interpreted that way. I’m not an expert on them.

I want to turn to Ukraine, sir —

PRESIDENT DONALD TRUMP: No, no. Terry —

TERRY MORAN: I– I want to get to Ukraine–

PRESIDENT DONALD TRUMP: Terry, no, no. No, no. He had MS as clear as you can be. Not “interpreted.” This is why people —

And when Trump grew hostile after Moran cornered him into admitting that, yes, he had the power to get Abrego Garcia returned, Trump needed to reinforce the plausible deniability he started building as soon as this thing started going to shit.

TERRY MORAN: I’m not saying he’s a good guy. It’s about the rule of law. The order from the Supreme Court stands, sir —

PRESIDENT DONALD TRUMP: He came into our country illegally.

TERRY MORAN: You could get him back. There’s a phone on this desk.

PRESIDENT DONALD TRUMP: I could.

TERRY MORAN: You could pick it up, and with all —

PRESIDENT DONALD TRUMP: I could

TERRY MORAN: — the power of the presidency, you could call up the president of El Salvador and say, “Send him back,” right now.

PRESIDENT DONALD TRUMP: And if he were the gentleman that you say he is, I would do that.

TERRY MORAN: But the court has ordered you —

PRESIDENT DONALD TRUMP: But he’s not.

TERRY MORAN: — to facilitate that — his release–

PRESIDENT DONALD TRUMP: I’m not the one making this decision. We have lawyers that don’t want —

TERRY MORAN: You’re the president.

PRESIDENT DONALD TRUMP: — to do this, Terry —

TERRY MORAN: Yeah, but the — but the buck stops in this office —

PRESIDENT DONALD TRUMP: I — no, no, no, no. I follow the law. You want me to follow the law. If I were the president that just wanted to do anything, I’d probably keep him right where he is —

TERRY MORAN: The Supreme Court says what the law is. [my emphasis]

Sure, the buck stops here. Trump is all powerful. But he — the President — is not making the decisions, did not make the AEA invocation based on lies. “The lawyers” did that. And they don’t want him to pick up that phone and facilitate Abrego Garcia’s return.

There’s no sign that Trump and Stephen Miller plan to give up this campaign, even as conservative Catholic SCOTUS justices break their Easter weekend observances to prevent Trump from pulling this trick a second time, a third adverse ruling. Instead, Stephen Miller will instead target the judges who tell him he (who is not a lawyer) has gotten the law wrong, over and over.

And that will force Trump to continue to insist that journalists affirm whatever Stephen Miller tells him is true.

Update: Trump appointed Judge Fernando Rodriguez, Jr. just ruled that Trump’s invocation of the AEA is unlawful and will move to relieve three plaintiffs held under it.

Those factual statements depict conduct by TdA that unambiguously is harmful to society in this country. And as previously explained, the political question doctrine prohibits the Court from weighing the truth of those factual statements, including whether Maduro directs TdA’s actions or the extent of the referenced criminal activity.

Instead, the Court determines whether the factual statements in the Proclamation, taken as true, describe an “invasion” or “predatory incursion” for purposes of the AEA. Based on the plain, ordinary meaning of those terms in the late 1790’s, the Court concludes that the factual statements do not. The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation. Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of “invasion” for purposes of the AEA. As for “predatory incursion,” the Proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives. While the Proclamation references that TdA members have harmed lives in the United States and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members. As a result, the Proclamation also falls short of describing a “predatory incursion” as that concept was understood at the time of the AEA’s enactment.11

For these reasons, the Court concludes that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and, as a result, is unlawful. Respondents do not possess the lawful authority under the AEA, and based on the Proclamation, to detain Venezuelan aliens, transfer them within the United States, or remove them from the country.

Just before he did that, he certified class status to similarly situated people in SDTX.

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How Trump Knuckles Journalists to Parrot His Doctrine

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You’ve likely seen some clips from Terry Moran’s rather supine interview of Donald Trump.

Moran let Trump get away with a whole range of false claims uncontested. But they got into it over Trump’s efforts to portray Kilmar Abrego Garcia as a bad man.

The clips don’t do the exchange justice.

Trump and Moran went back and forth around 28 times, and then Trump returned to it for another six exchanges (I’ve included two excerpts of the fight over knuckles below).

I actually don’t think this exchange reflects dementia It certainly reflects Trump’s ego. It’s an instance where Moran, as credulous as he otherwise was, refused accept Trump’s chant, 2+2=5.

Close to the beginning of the exchange, Trump held up everything — wait a minute! — when Moran refused to accept Trump’s claim that the tattoos on Abrego Garcia’s hands were proof of his MS-13 membership.

PRESIDENT DONALD TRUMP: On his knuckles — he had MS-13 —

TERRY MORAN: Alright. There’s dis — there’s a dispute over that —

PRESIDENT DONALD TRUMP: Well, wait a minute. Wait a minute. He had MS-13 —

TERRY MORAN: Well —

PRESIDENT DONALD TRUMP: — on his knuckles tattooed.

TERRY MORAN: — he — he — he — it didn’t say– oh, he had some tattoos that are inper — interpreted that way. But let’s move on

After Moran insisted on something obvious: that the photo of Abrego Garcia’s knuckles was clearly labeled both with interpretations of his tattoos and from that an annotation turning it into MS-13, Trump told Moran he could not state that because Trump gave him the break of a lifetime: “Terry, you can’t do that — he had — — he– hey, they’re givin’ you the big break of a lifetime.” That is, Moran could not state the truth because Trump had granted him this access. Moran tried to move on. Trump claimed this was not an interpretation. Moran tried to move on. Finally, Moran made a half concession.

PRESIDENT DONALD TRUMP: He’s got MS-13 on his knuckles.

TERRY MORAN: Alright. I —

PRESIDENT DONALD TRUMP: Okay?

TERRY MORAN: — we’ll — we’ll take a look at it —

But that was not good enough for Trump. Trump asked Moran, “Why don’t you just say, ‘Yes, he does,’ and, you know, go on to something else –”

Minutes later, after Moran tried to move onto the Ukraine question he had been trying to get out, Trump took a question about Putin and turned it back to Moran himself.

TERRY MORAN: Do you trust [Putin]?

PRESIDENT DONALD TRUMP: I don’t trust you. I don’t trust — I don’t trust a lot of people. I don’t trust you. Look at you. You come in all shootin’ for bear. You’re so happy to do the interview.

TERRY MORAN: I am happy —

PRESIDENT DONALD TRUMP: And then you start hitting me with fake questions. You start tellin’ me that a guy — whose hand is covered with a tattoo —

TERRY MORAN: Alright. We’re back to that.

PRESIDENT DONALD TRUMP: — doesn’t have the tattoo, you know.

He repeated his claim that Moran is excited to have access, but then accused him of asking “fake questions,” all because he refused to say 2+2-5. That’s when Trump labeled Moran dishonest.

This is not dementia.

This is power.

This is precisely the purpose Trump reserves for mainstream journalists: As props in his performance of forced adherence to his reality.

And it works.

After all, Moran was willing to accept as given the last 8 years of forced doctrine, about Ukraine, about Joe Biden, about Trump’s grievances. Moran has already internalized lies Trump has told for years, and wildly grotesque claims about rule of law went uncontested, unnoticed.

Moran could have stood up and walked away when Trump insisted that he repeat, 2+2=5, but instead Moran tried to make a series of half-concessions so he could move on. But even then, Trump still used it as a means to suggest he — Moran — was less trustworthy than Vladimir Putin.

It’s with that background that I want to return to the other noteworthy part of this, where Moran tried to get Trump to concede that SCOTUS had ordered Trump to facilitate Abrego Garcia’s return (NYT has a report that in the last week that discovery in Abrego Garcia’s case had been paused, the US requested and Nayib Bukele refused to return him, as well as an even more credulous report on how Stephen Miller dreamt up this entire plan over a year in advance, both of which I’ll return to).

When Terry Moran noted that Trump had the power to get Kilmar Abrego Garcia released, goading him to assert his own power, Trump complied (this was, in my opinion, the smartest thing Moran did in the interview, and it could backfire on Trump in the legal case).

TERRY MORAN: I’m not saying he’s a good guy. It’s about the rule of law. The order from the Supreme Court stands, sir —

PRESIDENT DONALD TRUMP: He came into our country illegally.

TERRY MORAN: You could get him back. There’s a phone on this desk.

PRESIDENT DONALD TRUMP: I could.

TERRY MORAN: You could pick it up, and with all —

PRESIDENT DONALD TRUMP: I could

TERRY MORAN: — the power of the presidency, you could call up the president of El Salvador and say, “Send him back,” right now.

But then Trump shifted to the slander against Abrego Garcia — to the Administration’s decision, reported by The Atlantic earlier this week, plan to impugn him rather than remedy their mistake.

PRESIDENT DONALD TRUMP: And if he were the gentleman that you say he is, I would do that.

TERRY MORAN: But the court has ordered you —

PRESIDENT DONALD TRUMP: But he’s not.

Here, several belief systems came into conflict.

At once, Moran was saying that Trump should return Abrego Garcia for two reasons, because the Supreme Court ordered he do so and because as President he absolutely has power to do so. In response, Trump disclaimed authority for making the decision. “We have lawyers,” the most powerful man in the world who appointed his defense attorneys to run DOJ said. And from there, Trump said he’s just following the law by doing whatever “the lawyers” tell him to do, not by doing what SCOTUS tells him to do.

TERRY MORAN: — to facilitate that — his release–

PRESIDENT DONALD TRUMP: I’m not the one making this decision. We have lawyers that don’t want —

TERRY MORAN: You’re the president.

PRESIDENT DONALD TRUMP: — to do this, Terry —

TERRY MORAN: Yeah, but the — but the buck stops in this office —

PRESIDENT DONALD TRUMP: I — no, no, no, no. I follow the law. You want me to follow the law. If I were the president that just wanted to do anything, I’d probably keep him right where he is —

TERRY MORAN: The Supreme Court says what the law is.

There have long been increasing signs — the Signal chat is a great one, and this exchange from Time Magazine’s own 100 day interview is another — that Trump’s not-a-lawyer Stephen Miller is both making these stupid decisions and serving as a gatekeeper to Trump.

When you and I spoke last April. Are you still committed to complying with all Supreme Court orders?

Sure, I believe in the court system.

The Supreme Court ruled 9-0 that you have to bring back Kilmar Abrego Garcia. You haven’t done so. Aren’t you disobeying the Supreme Court?

Well, that’s not what my people told me—they didn’t say it was, they said it was—the nine to nothing was something entirely different.

Let me quote from the ruling. “The order properly requires the government to facilitate Abrego Garcia’s release from custody in El Salvador.” Are you facilitating a release?

I leave that to my lawyers. I give them no instructions. They feel that the order said something very much different from what you’re saying. But I leave that to my lawyers. If they want—and that would be the Attorney General of the United States and the people that represent the country. I don’t make that decision.

Have you asked President Bukele to return him?

I haven’t, uh, he said he wouldn’t.

Did you ask him?

But I haven’t asked him positively, but he said he wouldn’t.

But if you haven’t asked him, then how are you facilitating his release?

Well, because I haven’t been asked to ask him by my attorneys. Nobody asked me to ask him that question, except you.

Remember, too, that Trump claimed that he didn’t sign the Alien Enemies Act proclamation that, NYT describes, Stephen Miller has been concocting for over a year.

President Donald Trump on Friday downplayed his involvement in invoking the Alien Enemies Act of 1798 to deport Venezuelan migrants, saying for the first time that he hadn’t signed the proclamation, even as he stood by his administration’s move.

“I don’t know when it was signed, because I didn’t sign it,” Trump told reporters before leaving the White House on Friday evening.

The president made his comments when asked to respond to Judge James Boasberg’s concerns in court on Friday that the proclamation was “signed in the dark” of night and that migrants were hurried onto planes.

“We want to get criminals out of our country, number one, and I don’t know when it was signed, because I didn’t sign it,” Trump said. “Other people handled it, but (Secretary of State) Marco Rubio has done a great job and he wanted them out and we go along with that. We want to get criminals out of our country.”

Two things are going on here, neither of them dementia.

First, Trump is either being compartmented from the most problematic decisions behind his detention program, or claiming to be. I would be unsurprised if the lawyers have compartmented him, but his public claim to CNN should be basis to claim the entire AEA declaration is invalid.

Second, Trump is enforcing a system of belief — inviting journalists in and grinding them down until they they publicly adopt Trump’s false claims — that justifies (in his mind) his detention program. It doesn’t much matter whether Trump really believes Abrego Garcia’s knuckles really say MS-13 based on false briefing from Stephen Miller or whether he’s just parroting the lines Stephen Miller told him to say because he hasn’t tested what Miller told him.

He did the same thing when he stated, “In Springfield, they’re eating the dogs, the people that came in. They’re eating the cats,” and got elected anyway. He did the same thing when he adopted Miller’s false claim that Aurora had been taken over by Tren de Aragua, the fiction that Miller was crafting last fall to set up his use of AEA, the fiction that has been debunked by the Intelligence Committee.

It’s far too late to waste time on whether Trump believes the torrent of lies he tells, to ponder whether this latest lie is a sign of dementia when his false claims about winning an election were instead calculation. Trump’s utterances are always utilitarian anyway. Always.

Trump’s fundamental unfitness lies in his need to and success at creating his own reality. Is Stephen Miller managing that unfitness to his own ends? Undoubtedly. But Trump’s unfitness remains — the reason Miller has exploited his genius for propaganda.

Stand up, call him out for doing it, and walk away. Do not be the prop in this display of dominance.

No matter what you think the mental acuity of Donald Trump and his chief advisor is, the ABC interview yesterday displayed both roots of Trump’s power, his success at bullying others into parroting his doctrine, and his use of that to claim those falsehoods legitimize something wildly divorced from American justice and rule of law.

PRESIDENT DONALD TRUMP: And you’ll pick out one man, but even the man that you picked out —

TERRY MORAN: He’s got —

PRESIDENT DONALD TRUMP: — he said he’d — wasn’t a member of a gang. And then they looked, and —

TERRY MORAN: Alright.

PRESIDENT DONALD TRUMP: On his knuckles — he had MS-13 —

TERRY MORAN: Alright. There’s dis — there’s a dispute over that —

PRESIDENT DONALD TRUMP: Well, wait a minute. Wait a minute. He had MS-13 —

TERRY MORAN: Well —

PRESIDENT DONALD TRUMP: — on his knuckles tattooed.

TERRY MORAN: — he — he — he — it didn’t say– oh, he had some tattoos that are inper — interpreted that way. But let’s move on

PRESIDENT DONALD TRUMP: Wait a minute.

TERRY MORAN: I want —

PRESIDENT DONALD TRUMP: Hey, Terry. Terry. Terry.

TERRY MORAN: He — he did not have the letter —

PRESIDENT DONALD TRUMP: Don’t do that — M-S-1-3 — It says M-S-one-three.

TERRY MORAN: I — that was Photoshop. So let me just–

PRESIDENT DONALD TRUMP: That was Photoshop? Terry, you can’t do that — he had —

— he– hey, they’re givin’ you the big break of a lifetime. You know, you’re doin’ the interview. I picked you because — frankly I never heard of you, but that’s okay —

TERRY MORAN: This — I knew this would come —

PRESIDENT DONALD TRUMP: But I picked you — Terry — but you’re not being very nice. He had MS-13 tattooed —

TERRY MORAN: Alright. Alright. We’ll agree to disagree. I want to move on —

PRESIDENT DONALD TRUMP: Terry.

TERRY MORAN: — to something else.

PRESIDENT DONALD TRUMP: Terry. Do you want me to show the picture?

TERRY MORAN: I saw the picture. We’ll — we’ll — we’ll agree to disagree —

PRESIDENT DONALD TRUMP: Oh, and you think it was Photoshop. Well —

TERRY MORAN: Here we go. Here we go.

PRESIDENT DONALD TRUMP: — don’t Photoshop it. Go look —

TERRY MORAN: Alright.

PRESIDENT DONALD TRUMP: — at his hand. He had MS-13 —

TERRY MORAN: Fair enough, he did have tattoos that can be interpreted that way. I’m not an expert on them.

I want to turn to Ukraine, sir —

PRESIDENT DONALD TRUMP: No, no. Terry —

TERRY MORAN: I– I want to get to Ukraine–

PRESIDENT DONALD TRUMP: Terry, no, no. No, no. He had MS as clear as you can be. Not “interpreted.” This is why people —

TERRY MORAN: Alright.

PRESIDENT DONALD TRUMP: — no longer believe —

TERRY MORAN: Well.

PRESIDENT DONALD TRUMP: — the news, because it’s fake news —

TERRY MORAN: When he was photographed in El Sal — in– in El Salvador, they aren’t there. But let’s just go on —

PRESIDENT DONALD TRUMP: He is —

TERRY MORAN: They aren’t there when he’s in El Salvador.

PRESIDENT DONALD TRUMP: –there — oh, oh, they weren’t there —

TERRY MORAN: Take a look at the photograph —

PRESIDENT DONALD TRUMP: But they’re there now, right?

TERRY MORAN: No. What —

PRESIDENT DONALD TRUMP: But they’re there now?

TERRY MORAN: They’re in your picture.

PRESIDENT DONALD TRUMP: Terry.

TERRY MORAN: Ukraine, sir.

PRESIDENT DONALD TRUMP: He’s got MS-13 on his knuckles.

TERRY MORAN: Alright. I —

PRESIDENT DONALD TRUMP: Okay?

TERRY MORAN: — we’ll — we’ll take a look at it —

PRESIDENT DONALD TRUMP: It’s — it’s — you do such a disservice —

TERRY MORAN: We’ll take a look. We’ll take a look at that, sir —

PRESIDENT DONALD TRUMP: Why don’t you just say, “Yes, he does,” and, you know, go on to something else —

He then returned to it for another four exchanges when discomforted by Moran’s questions about trusting Putin

TERRY MORAN: You think he wants peace?

PRESIDENT DONALD TRUMP: — this is —

TERRY MORAN: You think Vladimir Putin wants peace?

PRESIDENT DONALD TRUMP: I think he does, yes. I think he does–

TERRY MORAN: Still?

PRESIDENT DONALD TRUMP: I think because of me —

TERRY MORAN: Even with the raining missiles on —

PRESIDENT DONALD TRUMP: I think he really — his — his — his dream was to take over the whole country. I think because of me, he’s not gonna do that.

TERRY MORAN: Do you trust him?

PRESIDENT DONALD TRUMP: I think —

TERRY MORAN: Do you trust him?

PRESIDENT DONALD TRUMP: I don’t trust you. I don’t trust — I don’t trust a lot of people. I don’t trust you. Look at you. You come in all shootin’ for bear. You’re so happy to do the interview.

TERRY MORAN: I am happy —

PRESIDENT DONALD TRUMP: And then you start hitting me with fake questions. You start tellin’ me that a guy — whose hand is covered with a tattoo —

TERRY MORAN: Alright. We’re back to that.

PRESIDENT DONALD TRUMP: — doesn’t have the tattoo, you know.

TERRY MORAN: Alright.

PRESIDENT DONALD TRUMP: I mean, you’re being dishonest.

TERRY MORAN: No, I’m not —

PRESIDENT DONALD TRUMP: Let — let– let me just tell you —

TERRY MORAN: No, I am not, sir.

PRESIDENT DONALD TRUMP: Do I trust — I don’t trust a lot of people. But I do think this. I think that he — let’s say he respects me. And I believe because of me he’s not gonna take over the whole — but his decision, his choice would be to take over all of Ukraine.

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Trump’s Individual Claims about Immigrant Targets Are False–But So Is the Larger Premise

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There are a slew of legal challenges to Trump’s war on immigrants: there are people illegally sent to Nayib Bukele’s concentration camp, most notably Kilmar Abrego Garcia (whom Chris Van Hollen managed to meet yesterday); people sent to CECOT with no due process (including people with pending asylum claims and others picked up by mistake); grad students targeted for free speech; grad students targeted for low-level run-ins with the law; a US-born citizen, Juan Carlos Lopez-Gomez, detained for unlawful entry but since released; and at least three US citizens informed they must self-deport within seven days because their parole had been withdrawn.

Henrry Josue Villatoro Santos is a fairly unique case. He was arrested to great fanfare in March, with Pam Bondi boasting over and over she had caught one of the top leaders of MS-13.

He was arrested not — as Bondi suggested — based off probable cause he was the top leader of MS-13. Rather, he was arrested based on an outstanding administrative immigration warrant and weapons purportedly found in a plain view search of his house, for which he was charged with possession of a firearm by an alien.

9. After knocking and announcing their presence to no avail, members of the FBI’s Special Weapons and Tactics (“SWAT”) Team breached the front and rear doors of the residence. After breaching the front door, SWAT agents observed VILLATORO in an alcove leading to the residence’s garage. VILLATORO ducked behind a small wall out of view and did not comply with the agents’ demands that he exit the residence. After agents deployed a stun grenade, VILLATORO eventually came close enough to the front door to be pulled out of the residence.

10. VILLATORO was taken into custody on an outstanding administrative immigration warrant. When VILLATORO was being prepared for transport from the residence, he confirmed that the bedroom in the garage was his room and that a jacket inside that room was his.

11. FBI agents and TFOs proceeded to search the residence. Inside the aforementioned garage bedroom, a Taurus, model G2C, 9-millimeter handgun bearing serial no. ACH119455 was observed in plain view on a shelf near the bed. Based on my training and experience, I am aware that Taurus firearms are not manufactured in the Commonwealth of Virginia. Furthermore, the words “TAURUS ARMAS MADE IN BRAZIL” are stamped into the handgun’s slide next to the serial number.

12. In that same garage bedroom, agents located three additional firearms, ammunition, and two suppressors.

Less than two weeks later, DOJ moved to dismiss the case against Villatoro. They moved to get rid of the case, their claims, and Villatoro himself the easy way, by quick and due process-free deportation.

On Tuesday, magistrate judge William Fitzpatrick granted DOJ’s request (without requiring DOJ to offer the reason to dismiss), but granted a continuance to provide Villatoro a way to challenge deportation to CECOT.

Yesterday, Fitzpatrick granted Villatoro’s request for a stay so he can appeal the dismissal and try to stave off deportation to CECOT.

Villatoro’s request for an emergency stay cited the effect that the evidence-free claims that Pam Bondi, among others, has made — just like she has been with Abrego Garcia.

Through its very public pronouncements and attacks on Mr. Villatoro Santos, including bellicose statements by the Attorney General, the FBI Director, the Virginia Governor, and President Trump himself, the Government has effectively placed a target on Mr. Villatoro’s back: if he were to be deported to El Salvador, there is no doubt he will immediately be detained at CECOT without trial, and there will be no way out from there. And to be clear, this life-altering fate would result from the unproven allegations of a government that chose to forego criminal prosecution, where there is due process and a burden of proof to meet, in favor of deportation to a country in which there is little to no respect for the rule of law. Mr. Villatoro Santos faces the risk of an effective life sentence without trial, or worse.

If Abrego Garcia is ever brought back to the country, Pam Bondi’s inflammatory allegations against him may limit the government’s ability to dictate his fate; she obviously has prejudiced his ability to get a fair hearing. But Villatoro (who has not contested he had the guns) is in the country and so may be able to make something of the way Bondi claimed him to be something he’s probably not.

It’s not just that Trump’s Administration is deporting people without due process. He’s deporting people without due process because he needs to sustain false claims about them, to sustain a myth about invasion that Stephen Miller used to get Trump elected.

Meanwhile, Trump’s false claims are collapsing at a more significant level.

On one level, there’s Bukele’s claims to oppose MS-13. As I noted here, there has been isolated reporting on Bukele’s interest in preventing the real story of his relationship with MS-13 from being made public.

Asha Rangappa updates that with a description of how both Bukele and Trump have the need to claim their relationship with MS-13 is something it is not.

El Salvador has suffered from gang violence, led by Mara Salvatrucha, or MS-13, following decades of civil war from 1979 to 1992. According to an indictment brought by the Eastern District of New York against thirteen MS-13 gang members in 2022, various El Salvadoran administrations since the war ended entered into a “truce” with MS-13, in which the gang agreed to reduce homicides in the city “in exchange for transfers to less secure prisons, improved prison conditions, conjugal visits, cash payments, and other benefits and privileges.” The “truce” came to a halt, however, in 2015 after the U.S. government, which wanted to curb MS-13’s activity in the United States and bring them to justice here, increased pressure on El Salvador to return to restrictive prison conditions for gang members and extradite some of them to the U.S. In retaliation for the “truce” being lifted, MS-13 increased its violence both in El Salvador and in the U.S. In fact, the first Trump Justice Department created a task force, called Task Force Vulcan, to crack down on MS-13 in the U.S. – which is what led to the federal indictment noted earlier.

Enter Bukele. Bukele was elected in 2019, winning on a platform that promised to (once again) “crack down” on gang violence. But his party, Nuevas Ideas, began secretly working to gain the support of a critical group: Yep, MS-13. Bukele and his party negotiated with the gang to bring back the “truce,” which would include (according to the federal indictment) “financial benefits, control of territory, the ability to run the gang from prison, and the early release of gang members.” MS-13 also wanted assurance that they wouldn’t be extradited to the U.S., where they would face more punitive measures. (Having studied the drug cartels in Colombia, this was reminiscent of Pablo Escobar’s mantra, “Mejor una tumba en Colombia, que una carcel in los Estados Unidos” – which means, “Better a grave in Colombia than a jail cell in the United States.”) The same day Bukele’s party received a legislative majority in 2021, it removed the Attorney General and five members of the Supreme Court who had been working with the U.S. to take real action against MS-13. Buekele also released a major MS-13 leader whom the U.S. was seeking for extradition from prison.

In exchange, MS-13 “agreed to reduce the number of public murders in El Salvador, which politically benefitted the government, by creating the perception that the government was reducing the murder rate.” Indeed, Bukele’s popularity is the result of his so-called “Territorial Control Plan,” which involved building his supermax prison and his plan of mass incarceration – a plan which he credits for the drop in violence since he took office. Of course, the citizens of El Salvador aren’t privy to the secret negotiations Bukele made with MS-13 – details that were going to be made public when the U.S. government’s case against the MS-13 defendants went to trial. Which may explain why the Trump administration quietly dropped these charges last week and put the charged MS-13 members on the third plane bound for El Slavador (and which included Abrego Garcia). Among the defendants was one of the highest-ranking leaders of MS-13, Cesar Humberto Lopez-Larios, who was arrested last June and added to the earlier indictment (and who almost certainly will not face real punishment in El Salvador). A former FBI agent who spent years working on this and other gang cases called it “a historical loss,” especially in terms of getting critical intelligence about MS-13’s operations and members in the United States.

In short, both Trump and Bukele appear to be complicit in a plan to allow MS-13 to operate in El Salvador on its own terms, in exchange for making it look like both are “cracking down” on the gang in their respective countries. Of course, the fact that MS-13 will continue to operate in cahoots with the El Salvadoran government means that citizens of that country who are victims of the gang will continue fleeing to the United States, undercutting the Trump administration’s claim that it is trying to end the “invasion” of asylum seekers. Then again, Trump needs a steady influx of people to continue trying to cross the border in order to keep claiming the “national emergency” he is using to expand his authority.

There’s a flip side to Trump’s propaganda, involving Trump’s false claims about Tren de Aragua.

Even at the Global Threats Hearings on March 26, otherwise focused on Mike Waltz’ Signal chat, Democrats asked Tulsi Gabbard why Tren de Aragua, which Trump had just declared was invading the country in a matter akin to war, was not even mentioned among the IC’s description — prioritized as the primary threat for the first time — of transnational actors threatening the country.

Western Hemisphere-based TCOs and terrorists involved in illicit drug production and trafficking bound for the United States endanger the health and safety of millions of Americans and contribute to regional instability. Fentanyl and other synthetic opioids remain the most lethal drugs trafficked into the United States, causing more than 52,000 U.S. deaths in a 12-month period ending in October 2024. This represents a nearly 33 percent decrease in synthetic opioid-related overdose deaths compared to the same reporting time frame the previous year, according to CDC provisional data, and may be because of the availability and accessibility of naloxone.

Mexico-based TCOs—including the Sinaloa Cartel and the New Generation Jalisco Cartel—remain the dominant producers and suppliers of illicit drugs, including fentanyl, heroin, methamphetamine, and South American-sourced cocaine, for the U.S. market. Last year, official points of entry along the U.S.-Mexico border were the main entry point for illicit drugs, often concealed in passenger vehicles and tractor trailers. However, some TCOs likely will at least temporarily change their smuggling techniques and routes in response to increased U.S. security force presence at the border.

Since at least 2020, the growth of Mexico-based independent fentanyl producers—actors who are autonomous or semiautonomous from Mexican cartel control—has increasingly fragmented Mexico’s fentanyl trade. Independent fentanyl producers are attracted to the drug’s profitability and the low barriers to market entry, including the ease of synthesizing it using basic lab equipment and few personnel.

Colombia-based TCOs and illegal armed groups are responsible for producing and exporting the vast majority of cocaine that reaches the United States, some of which is transshipped through Ecuador, contributing to an uptick in violent criminal conflicts that spurs regional migration.

Mexico-based TCOs are ramping up lethal attacks in Mexico against rivals and Mexican security forces using IEDs, including landmines, mortars, and grenades. In 2024, there were nearly 1,600 attacks on Mexican security forces using IEDs, surging from only three reported attacks between 2020- 2021. The sophistication of TCO tactics is reshaping Mexico’s security landscape and has heightened the risk to security forces.

Tren de Aragua is not mentioned in the report; Venezuela is mentioned once (because, with Mexicans and Guatemalans, they are the migrants most commonly trying to enter the country through the Mexican border). El Salvador and MS-13 are likewise not mentioned.

But since then, the IC has done a National Intelligence Estimate that formalizes what became clear in the Threats Hearings. Of the 18 intelligence agencies who contributed to the assessment, only the FBI even claimed that the Venezuelan government was involved with TdA.

The National Intelligence Council, drawing on the acumen of the United States’ 18 intelligence agencies, determined in a secret assessment early this month that the Venezuelan government is not directing an invasion of the United States by the prison gang Tren de Aragua, a judgment that contradicts President Donald Trump’s public statements, according to people familiar with the matter.

[snip]

The intelligence product found that although there are some low-level contacts between the Maduro government and Tren de Aragua, or TdA, the gang does not operate at the direction of Venezuela’s leader. The product builds on U.S. intelligence findings in February, first reported by the New York Times, that the gang is not controlled by Venezuela.

An unnamed person in Tulsi’s office accused the entire IC of a Deep State plot, pitting the DNI aggressively against her subordinates.

When asked about the findings, the Office of the Director of National Intelligence dismissed it as the work of “deep state actors” working in conjunction with the media.

“President Trump took necessary and historic action to safeguard our nation when he deported these violent Tren de Aragua terrorists,” the statement said. “Now that America is safer without these terrorists in our cities, deep state actors have resorted to using their propaganda arm to attack the President’s successful policies.”

All of it — all of Trump’s March campaign to invoke the Alien Enemies Act to start deporting people without due process — all of it is based on wildly unfounded propaganda, propaganda about who Bukele is, propaganda about what TdA is, propaganda about who these makeup artists and soccer players are.

There is a great deal of angst among centrist Democratic consultants and pundits that Trump will always have the upper hand on immigration. And while it’s true that that’s what has prevented Trump’s polling from cratering, it is already the case that Americans don’t like specific aspects of Trump’s immigration policy.

The vast majority — 82% — of Americans believe Trump should obey court orders even if he disagrees with them, and 56% think he should stop “deporting people” (again, very vague) specifically:

But the details of the policy Trump is carrying out are even more removed from the polling — even more unpopular, reflecting deep reservations among the public about what the president is doing.

For example, when various pollsters asked if they would support deporting immigrants who have been here more than 10 years (as in the case of Abrego Garcia), U.S. adults said “no” by a 37 percentage point margin; Americans disapprove of deporting immigrants who have broken no laws other than laws governing entry; they oppose deporting U.S. citizens convicted of crimes to foreign jails, such as CECOT, and they oppose housing migrants at Guantanamo Bay while they are processed. All of these are policies the Trump administration has now floated or is actively carrying out.

But here’s what else the polling never accounted for: even in real time, it was clear Trump’s strength on immigration was based on a massive campaign of propaganda (just as Trump had tried with less success in 2018 and 2020).

More than $247 million was spent in the first six months of this year on television, streaming platform and digital ads that mention immigration, according to AdImpact, which tracks campaign advertising. That is $40 million more than ads that mention any other issue.

Over 90 percent of the ads supported Republican candidates and were paid for by their campaigns or political action committees backing them.

The level of spending underscores how important Republicans view border security and immigration in this year’s elections. While polls show voters overall rank issues at the border as less important to them than the economy, inflation and protecting democracy, Republican voters consistently rank it as among the most important.

The Washington Post analyzed the transcripts, images and on-screen text featured in more than 700 campaign ads that mention immigration and that ran from January through June for the presidential and Senate races, as well as congressional primaries and major state campaigns.

Taken as a whole, the ads convey an unrealistic portrait of the border as being overrun and inaccurately characterize immigrants generally as a threat, of which there is little evidence. FBI data show U.S. border cities are among the nation’s safest. And a 2023 report from a group of economists found immigrants are at least 30 percent less likely to be incarcerated than U.S.-born individuals.

Click through to that story, because it was extremely comprehensive, but also just a single story amid a campaign focused on other things.

Donald Trump won election by staging spectacular propaganda in places like Aurora, Colorado, where Stephen Miller tried to drown out the Republican Mayor’s debunking of his false claims. Donald Trump won election by falsely accusing a productive group of Haitian immigrants were eating house pets. Trump won election by claiming that a bunch of criminal aliens safely held in US prisons were, instead wandering the streets.

Donald Trump won, in significant part by stoking fear of immigrants, based off a flood of propaganda that Democrats only responded to with whack-a-mole efforts to combat individual lies.

Thus far, Democrats are still largely fighting a game of whack-a-mole, though one facilitated by human interest and the Fifth Amendment.

Thus far, the campaign to fight back against Trump’s authoritarian immigration crackdown has focused on individual stories: Abrego Garcia’s efforts to raise his three American citizen children, Rumeysa Öztürk’s research on how to make social media useful, Mohsen Mahdawi’s empathy for both Palestinians and Jews. These are individuals, and once they are viewed as individuals, most Americans don’t support their draconian treatment.

But it has yet to account for the fact that it is based on far bigger lies, bigger lies that Stephen Miller manufactured to justify claiming expansive powers in the name of fear.

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Harvie Wilkinson on Due Process

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After Judge Paula Xinis granted discovery to Kilmar Abrego Garcia’s attorneys, Trump ran to the Fourth Circuit.

Waiting less than a day, the conservative on the panel for the case, Harvie Wilkinson, wrote a scathing opinion rejecting Trump’s plea for help.

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 semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Read the rest.

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Why Did Donald Trump Free Someone He Purports To Be a Dangerous Terrorist?

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Donald Trump, Nayib Bukele, and Kristi Noem love to make fascist spectacle.

They did it with the video showing the arrival of hundreds of people Trump sent to Bukele’s concentration camp. Noem did it with her visit to the camp. And they did it with the planned theater yesterday, including the staged hot mic moment where Trump told Bukele he wanted to send “homegrowns” to the concentration camp at CECOT.

They do it because fascist spectacle inspires fear. They do it because fascist spectacle goes viral, including with the help of data mules who purport to oppose its content.

They do it because it short circuits rational thought, overwhelming such rational thought with emotion.

The effect of yesterday’s fascist spectacle led virtually everyone to focus on a detail that won’t help the immediate fight before us — Trump’s interest in deporting “homegrowns,” an interest he has stated openly over and over, starting during campaign — rather than on details that might help Kilmar Abrego Garcia, and in the process help to prevent similar treatment of other migrants and, ultimately, American citizens.

Few people raised any of the questions posed by Trump’s latest attempt to retcon a legal case he already blew. Let’s start with the big one:

Why did Trump free someone, Abrego Garcia, whom Stephen Miller insists is a dangerous terrorist?

The latest theory about Abrego Garcia — one DOJ first rolled out at the Fourth Circuit — is that when the Trump Administration designated MS-13 a foreign terrorist organization earlier this year, it meant Abrego Garcia was no longer eligible for the withholding of removal granted to him in 2019.

It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador, given his claims about threats from a different gang. Final Removal Order 7–10. That conclusion was dubious then (and increasingly so now). But it has become totally untenable, given the Secretary of State’s designation of MS-13 as a Foreign Terrorist Organization in February. 90 Fed. Reg. at 10030–31.

As a result of that designation, and Abrego Garcia’s membership in that terrorist organization, he would no longer be eligible for withholding relief under the federal immigration laws. 8 U.S.C. §§ 1231(b)(3)(B)(iv); 1227(a)(4)(B). And as even Plaintiffs admit, the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection. See Reply 8. To be sure, the Government did not avail itself of that procedure in this case. But through the lens of the public interest, the district court’s stunning injunction does not fit that error. A mistake of process does not warrant the unprecedented remedy ordered—one that demands the return of a foreign terrorist from the foreign sovereign that agreed to take him.

Before this claim, DOJ barely mentioned two earlier rulings from 2019 (one two) asserting Abrego Garcia could not be released because of hearsay ties to MS-13, relying instead on procedural arguments. In a footnote, Judge Xinis ruled that DOJ did not rely on it before her.

Defendants did not assert—at any point prior to or during the April 4, 2025, hearing—that Abrego Garcia was an “enemy combatant,” an “alien enemy” under the Alien Enemies Act, 50 U.S.C. § 21, or removable based on MS13’s recent designation as a Foreign Terrorist Organization under 8 U.S.C. § 1189. Invoking such theories for the first time on appeal cannot cure the failure to present them before this Court. In any event, Defendants have offered no evidence linking Abrego Garcia to MS-13 or to any terrorist activity. And vague allegations of gang association alone do not supersede the express protections afforded under the INA, including 8 U.S.C. §§ 1231(b)(3)(A), 1229a, and 1229b.

As Judge Stephanie Thacker noted in the Fourth Circuit opinion denying a stay the government thereby could not raise it before her.

Finally, I turn to the Government’s assertion that the public interest favors a stay because Abrego Garicia is a “prominent” member of MS-13 and is therefore “no longer eligible for withholding relief.” Mot. for Stay at 14–15. Whatever the merits of the 2019 determination of the Immigration Judge (“IJ”) regarding Abrego Garcia’s connection to MS-13,8 the Government presented “[n]o evidence” to the district court to “connect[] Abrego Garcia to MS-13 or any other criminal organization.” Dis.t Ct. Op. at 22 n.19; see also id. at 2 n.2 (“Invoking such theories for the first time on appeal cannot cure the failure to present them before this Court.”). Indeed, such a fact cannot be gleaned from this record, which shows that Abrego Garcia has no criminal history, in this country or anywhere else, and that Abrego Garcia is a gainfully employed family man who lives a law abiding and productive life. Tellingly, the Government “abandon[ed]” its position that Abrego Garcia was “a danger to the community” at the hearing before the district court. Dist. Ct. Op. at 22 n.19. The balance of equities must tip in the movant’s favor based on the record before the issuing court. An unsupported — and then abandoned — assertion that Abrego Garcia was a member of a gang, does not tip the scales in favor of removal in violation of this Administration’s own9 withholding order. If the Government wanted to prove to the district court that Abrego Garcia was a “prominent” member of MS-13, it has had ample opportunity to do so but has not — nor has it even bothered to try.

The Government’s argument that there is a public interest in removing members of “violent transnational gangs” from this country is no doubt true, but it does nothing to help the Government’s cause here. As noted, the Government has made no effort to demonstrate that Abrego Garcia is, in fact, a member of any gang, nor did the Government avail itself of the “procedural mechanism under governing regulations to reopen the immigration judge’s prior order[] and terminate its withholding protection.” Mot. for Stay at 16–17. The Government may not rely on its own failure to circumvent its own ruling that Abrego Garcia could not be removed to El Salvador.

8 Even then, the Government’s “evidence” of any connection between Abrego Garcia and MS-13 was thin, to say the least. The Government’s claim was based on (1) Abrego Garcia “wearing a Chicago Bulls hat and hoodie,” and (2) “a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.” S.A. 146 n.5; Mot. for Stay Add. at 10–11.

9 Of note, the IJ’s 2019 decision, which granted Abrego Garcia withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A) because he faced threats to his life from an El Salvadoran gang that had targeted him and his family, was during President Trump’s 2016–2020 term in office. That decision became final on November 9, 2019, and was not appealed by this Administration.

But let’s take this retcon on its face. Stephen Miller has now decided, with no evidence provided, that Abrego Garcia is a “prominent” leader of MS-13, a gang on which DOJ focused closely for the entirety of the first Trump Administration. Miller says that Abrego Garcia is a danger to the community. Miller keeps screeching about terrorism.

If what Miller is saying now is true, it means that Trump released a dangerous criminal back in 2019. Why did Trump leave this man on the street to do dangerous things like raising three American citizen children for six years?

Update: Roger Parloff has a good summary of the flimsy case that Abrego Garcia has ties to MS-13.

Why is Trump so weak that he can’t make requests of the dictator of a small country?

Next consider Pam Bondi’s claim that, notwithstanding public reports that the detainees are just being held in CECOT for a year, notwithstanding Kristi Noem’s visit to the concentration camp, notwithstanding that the government just sent another ten people down there, the government is helpless to get Abrego Garcia back.

What does this say about Trump’s weakness as a President?

What kind of weak ass man can’t even make a request of a small Central American nation?

How does Trump think he’ll negotiate with Xi Jinping if he can’t even make a simple request of Bukele?

Will Stephen Miller send adjudged terrorists like Stewart Rhodes and Joe Biggs to Bukele’s concentration camp? Will Miller send DC US Attorney Ed Martin there, for palling around with adjudged terrorist Kelly Meggs, the same kind of associational ties used to send at least one of the men on the flights on March 15 to CECOT?

Next, let’s take Trump at his word that he wants to send “homegrowns” to CECOT.

Should Stewart Rhodes and Joe Biggs — both adjudged to be terrorists, both radicalized in the United States — both be packing their bags for the concentration camp? If Ed Martin has been palling around with adjudged terrorist Kelly Meggs — the same kind of associational guilt used to send at least one of the Venezuelans in the March 15 flight — should he worry about packing his bags?

Will Stephen Miller send his terrorists to the concentration camp?

Is Miller using the designation of terrorism just as a way to criminalize brown people, or will he send terrorists from his own tribe to the concentration camp?

Why is Stephen Miller terrified of — why does he want you to be terrified of — loving fathers? 

Miller has been accusing journalists who describe the contributions Abrego Garcia has made as a loving father to three American citizen children of lying, because journalists refuse to repeat his bleated accusations of terrorism with no evidence. Miller and Pam Bondi are working hard to get people to dumbly adopt their accusations.

But why is Miller so afraid of journalists describing Abrego Garcia as what he is, a father from Maryland?

Why does Pam Bondi keep destroying the careers of DOJ attorneys because they tell the truth?

When DOJ decided to retcon this case, they scapegoated the lawyer from whom they had withheld any sound legal basis, Erez Reuvani, along with his supervisor, both of whom were put on leave.

This, in spite of the fact that Drew Ensign called Reuveni “top notched” when he promoted him just weeks earlier.

In a March 21 email announcing Mr. Reuveni’s promotion to acting deputy director of the department’s Office of Immigration Litigation, his boss, Drew C. Ensign, lauded him for working on cases filed against sanctuary cities accused of defying federal immigration laws, and for generally helping to expand the department’s litigation activities.

“I want to thank those who submitted interest for the acting positions — we had outstanding choices, which helps go to show the excellent caliber of our team,” Mr. Ensign wrote.

Mr. Ensign has been handling a separate immigration case, one in which he has been defending the Trump administration’s use of a rarely invoked wartime law, the Alien Enemies Act, to summarily deport scores of Venezuelan migrants accused of belonging to the street gang Tren de Aragua.

As DOJ has provided increasingly contemptuous updates to Judge Xinis, the AUSA who had appeared before her, Tarra DeShields, has backed off vouching for the arguments DOJ has made, instead listing her involvement as “fil[ing]” updates.

Finally, Ensign filed a notice of appearance and, apparently, took on this dogshit argument himself, as he did the Alien Enemies Act before Judge Boasberg.

Obviously, even committed immigration lawyers are unwilling to make these arguments. How many career attorneys will Pam Bondi chase away while floating these arguments?? How many careers will she destroy because the actions of the Trump administration have no defense in the law?

Has Bondi’s DOJ lost all presumption of regularity?

And the whole process of admitting fault, suspending the person who (along with several others) told that truth, and then inventing new theories after the fact has to start destroying the entire concept of presumption of regularity for DOJ.

Even before DeShields started getting cold feet, even before Stephen Miller started disclaiming the error that everyone has admitted, Ben Wittes raised this question: At what point are judges entitled to demand proof from DOJ lawyers for their claims?

Will Xinis demand that DOJ document their new theory that Trump’s terrorist designations retroactively make judge’s orders disappear?

Would Marco Rubio deport his own grandfather to a concentration camp if Stephen Miller told him to?

Abrego Garcia’s story — of a man who came to the US to seek a better life without proper paperwork, but who was allowed to stay and build a life — is not all that different from the story of Marco Rubio’s own grandfather, who was almost denied entry in part because of suspicions he had communist sympathies and even then only allowed to stay as a parolee.

It had been almost three years since he had last set foot in the United States, and he no longer had the proper credentials to enter. They told him he could stay for the time being, but if he wanted to avoid deportation, he would have to plead his case.

“I always thought of being here in the United States as a resident, living permanently here,” the slight 62-year-old grandfather, speaking through an interpreter, said at a hearing five weeks later. He said that he had previously returned to Cuba because he did not want to be a burden on his family in the United States, but that the Cuban government had grown too oppressive and he feared what might happen if he stayed.

The immigration officer was unmoved. He did not see an exiled family man — just someone who had no visa, worked for the Castro government and could pose a security risk.

“It is ordered that the applicant be excluded and deported from the United States,” he said matter-of-factly, according to an audio recording of the proceedings stored by the National Archives. He stopped to ask if Mr. Garcia understood.

“Yes, I do,” Mr. Garcia said plaintively.

That easily could have been the end of his American story. But someone in the immigration office on Biscayne Boulevard that day — the paperwork does not make clear exactly who or why — had a change of heart. Mr. Garcia was granted status as a parolee, a gray area of the law that meant he would not get a green card but could remain in the United States.

[snip]

Despite Mr. Garcia’s insistence that he was fleeing oppression, immigration officials raised suspicions that he might harbor communist sympathies, the records reveal. That charge, had they pursued it, could have led to a conclusion that he was a national security threat. (Details of Mr. Garcia’s immigration odyssey were reported in 2012 by Manuel Roig-Franzia in his book “The Rise of Marco Rubio.”)

In an interview, Mr. Rubio acknowledged that some would see a conflict between the stricter immigration and refugee policies he supports and his grandfather’s experience. Immigration records also show that other members of Mr. Rubio’s family — two aunts and an uncle — were admitted as refugees.

But Mr. Rubio said the difference between then and now is how much more sophisticated foreign infiltrators like the Islamic State have become, and how dangerous they are.

“I recognize that’s a valid point,” the senator said, “But what you didn’t have was a widespread effort on behalf of Fidel Castro to infiltrate into the United States killers who were going to detonate weapons and kill people.”

Last month, Trump announced the cessation of various parole programs, including a recent one including Cubans, effective on April 24. Which means, within days, Cubans could be among the Hispanic migrants that Stephen Miller packages up to send to Bukele’s concentration camp.

How many Cubans will Marco Rubio send away to a concentration camp? How many lives like Rubio’s own will the Secretary of State doom with his enthusiasm to send send loving fathers to concentration camps?

For too long Trump’s lefty opponents (liberals and progressives and those further left; anti-Trump Republicans are, in my opinion, actually far better at this) have largely failed to make Trump’s fascism a political problem. And while lawyers have done a great job of humanizing their clients — including Abrego Garcia — in public opinion, the rest of it, the contradictions and confessions of pathetic weakness, has largely gone unmentioned.

Do not abdicate making Abrego Garcia a political, as well as a legal, case. Do not get distracted by the fascist spectacle from using the fragile story rolled out yesterday against Trump. The stakes in this moment are too high.

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What Trump Wants From the Nayib Bukele Presser

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Stewart Rhodes remains an adjudged terrorist (having gotten a terrorism enhancement at sentencing, in a sentence that Trump commuted but did not pardon). Kilmar Abrego Garcia is not.

I start there because one of the biggest takeaways from the press conference Trump staged with Nayib Bukele today is that the claims that Abrego Garcia — and not the guy whom Trump freed on his first day on the job — is a terrorist went uncontested.

The entire press conference was staged, like a badly written play, and staged to set up tomorrow’s status hearing in the Kilmar Abrego Garcia case, and with it try to chip away at due process for undocumented people. Yes, in the longer run, Trump wants to set up the legal path to use CECOT as a concentration camp, including for Americans. But in the shorter term, I think Trump is trying to reverse two adverse SCOTUS decisions, the one ruling that everyone gets access to at least a habeas petition before being deported, and the other that would uphold the ruling that Abrego Garcia could be deported, but not to El Salvador.

As far as we know, Kilmar Abrego Garcia is a unique fact set among the people deported in the March 15 flights, and my guess is that after John Sauer came in, he decided to reset how DOJ deals with Abrego Garcia because he 1) had a negative ruling in 2019 and 2) is an undocumented Salvadoran citizen.

And so the presser today was designed to present an entirely new argument in the Abrego Garcia case, one that negates the repeated admissions of error (including even from Sauer) already in the court record.

After Kaitlan Collins started asking questions, all the people who should be submitting sworn declarations before Judge Paula Xinis made comments not burdened by oaths or the risk of contempt, rehearsed comments for the cameras.

Pam Bondi misrepresented the two 2019 rulings as findings that Abrego Garcia is a terrorist (as distinct from a ruling that he was not safe to release), and said that she was helpless to get Abrego Garcia back.

Stephen Miller laid out the new game plan at length (one he previewed on Fox beforehand): a claim that the SCOTUS order says the opposite of what it does, a claim that SCOTUS said that so long as this all gets packaged as foreign policy, Trump can deprive Abrego Garcia of his rights. A lie that the plan always to send Abrego Garcia to CECOT for precisely the purpose they’re putting forth today.

Marco Rubio had his speaking part, in which he affirmed the claim that this was all about foreign policy.

And then Bukele claimed he is helpless to return Abrego Garcia because — accepting the unsubstantiated claim that Abrego Garcia is a terrorist — he couldn’t bring someone like that back into the US (never mind that countries, including El Salvador, extradite actual terrorists to the US all the time).

So Bondi claimed to be helpless to ask Buekele to return Abrego Garcia. Bukele claimed to be helpless to return him. Depending on how SCOTUS treats the clear contempt for their ruling, it could have the desired effect, to get John Roberts to claim impotence.

There was no discussion of the US payments to Bukele, or past claims that Bukele is only temporarily holding the US deportees. (Though without the claim that this is temporary, the deportations to be held indefinitely in a third country become far more problematic.) Andrew Weissmann noted that Trump’s hot mic comment that Bukele should build five more camps suggests this is all being done at the US’ behest.

And, of course, there was no discussion that Trump freed a number of adjudged terrorists on his first day in office, his terrorists, terrorists now running free.

The Trump Administration is, in my opinion, trying to move the bar on deportation to a concentration camp. Contrary to Trump’s staged comment (for Bukele’s videographers) that Bukele needs to build five more concentration camps, I don’t think this theater was designed to get all the way to deporting American citizens now, not without more sanction from SCOTUS. I have no doubt he does want to get there, but thus far Trump has given what he does the patina of legal sanction, and he seems to believe he’ll get it here.

But I do think the theater scene was designed to get a second bid on this case from SCOTUS. And until people start focusing on Trump’s unsubstantiated claim that these men — Abrego Garcia and the others — are terrorists, until that claim is defeated politically, then Trump will continue to make legal progress.

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Things Go Boom When You Attempt to Retcon the Economy

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I keep writing about how Trump keeps retconning what he is doing legally, attempting to alter his explanations for what he’s doing, legally, when a first legal theory runs into trouble. The Trump administration has tried to retcon:

Trump has only accelerated these dizzying gyrations in attempting to explain how Kilmar Abrego Garcia ended up in a prison in El Salvador.

Thus far, Trump has dodged repercussions for this Choose Your Own Adventure lawyering, thanks in part to SCOTUS’ disruption of the Alien Enemies Act class act before Judge James Boasberg before he could hold anyone in contempt. There is a pending contempt request before Judge Paula Xinis in the Abrego Garcia case, but she will need to dot some Is and cross some Ts before she imposes sanctions and even there it would take time to target the sanctions against the people who deserve them.

I first IDed this Administrative retconning in the legal context because in the legal context there are rules about saying one thing and then changing your mind (though actually, I first IDed Trump’s reliance on retconning after the Haitian dogs and cats attack during the election). That is, it matters in a legal context because it may blow a legal case even in a context — such as deportations — where the President has expansive authority. The Supreme Court vastly expanded Trump’s power with the immunity decision, but his DOJ is so feckless it may end up losing anyway because they do something stupid (or at least wildly inconsistent) legally.

That’ll take time, though. Xinis will not rule quickly to avoid giving the government easy cause for reversal, and so won’t deliver the immediate punishment the government deserves.

But Trump has been retconning policies elsewhere, most especially in his rollout of tariffs.

Over the course of the last week, Trump rolled out:

  • Liberation day tariffs on everyone, including penguins, except the axis of authoritarians Trump idolizes
  • A blink
  • Tariffs on China
  • More tariffs on China
  • Still more tariffs on China
  • Even more tariffs on China
  • The Tim Apple exemption
  • A seeming reversal of the Tim Apple exemption

This is the very same policy ineptitude as we see with DOGE and in the legal context, but this time with the world’s biggest economy, and just as importantly, the glue that holds the global economy together.

In the legal context, this fecklessness — and the public retaliation on government lawyers for admitting that they’re being compartmented from real information — results in the gradual erosion of presumption of regularity, the equivalent of a house advantage that lets the government make seemingly unreasonable claims without immediate consequence.

But the presumption of regularity dissolves much more quickly in the financial context.

Justin Wolfers, who doesn’t have a substack but does have TikTok, described how Trump’s attempts to retcon his tariff policy has created two economic crises: the first created by Trump’s tariffs themselves, the second created by the retconning itself.

One of the reasons you saw the markets respond so strongly is there this crisis of confidence. It’s a crisis of confidence in the competence of the Administration. They’ve rolled out tariffs based on formula that make no economic sense. They stick with a plan where they say it’s all about one thing and then they roll it all back and say, you know what? we’ve been lying to you since Sunday when they already decided to change paths. They — tariffs on China yesterday, we were told, were 125% and today they’re 145%. I want you to stick with that for just a moment. You’ve got tariffs between two of the world’s great economic powers and people in the White House couldn’t tell you the correct tariff within 20 percentage points, which would normally be the entire trade war and they forgot whether it was 125 or whether it was 145.

In his substack, Paul Krugman likens the response to the treatment of the US economy like a developing economy.

The obvious explanation is that crazy policies have shaken investors’ faith in America, which has traditionally been viewed as a safe haven.

The topic of how Trump’s policies have messed with the bond markets – including the market for US Treasuries — is too difficult for me to cover today, but here’s more. The key point is that massive tariffs have disrupted the plumbing of the financial system, leading to soaring interest rates on U.S. government debt. That’s abnormal: rising odds of a recession usually lead to falling long-term interest rates, because the prospect of a recession raises the likelihood of future cuts by the Fed, which controls short-term rates. This time, however, rates are spiking, especially for very-long-term instruments like 30-year bonds, shown at the top of this post.

The common thread in currency and bond markets is that, thanks to Trump, dollar assets — traditionally the foundation of the global financial system — are no longer perceived as safe.

The combination of interest rates soaring amid a slump and the currency plunging despite rising interest rates isn’t what we normally expect for advanced countries, let alone the owner of the world’s leading reserve currency. It is, however, what we often see in emerging-market economies. That is, investors have started treating the United States like a third-world economy.

Did I see this coming? No, not really. Unlike the sanewashers, I knew that Trump’s policies would be irresponsible and destructive. However, even I didn’t expect him to destroy credibility accumulated over 80 years in less than three months. But he has.

And even if Trump were to backtrack on everything he’s done, we wouldn’t get the lost credibility back. The whole world, sanewashers aside, now knows that America is run by a mad king, surrounded by enablers, who can’t be trusted to behave rationally.

In court, Trump may have ways of dodging the consequences of getting caught retconning his story.

In the economy, there’s no way to unring the bell — probably not even the replacement of Trump, if that were to happen in the near term.

American financial hegemony has been built on a decades of reliability. That financial hegemony has given the US, and even US consumers, privileges other people don’t have. Importantly, that financial hegemony is the basis for tools — such as sanctions on Russia on Iran — that Trump claims to be threatening if he doesn’t get his way.

Things go boom when you try to retcon your economic explanations.

I alluded to this on Friday’s podcast with Nicole. It was inevitable that bankers and hedgies would have less patience with Trump’s equivocations than judges do, partly because of judicial comity and partly because SCOTUS will go some lengths to protect Trump.

But these are related issues. The utter fecklessness of Trump’s policy logic is consistent between law and the economy (indeed, DOGE occupies the sweet spot between the two of them). That doesn’t mean the bankers will care about all the other damage Elon Musk has been doing to the US. But it means Trump’s claim to omnipotence will start to unravel in ways that may provide opportunities elsewhere, including with Republicans who actually understand the privilege that arises from the US economic hegemony Trump is squandering.

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Supreme Court Starts Cleaning Up Kristi Noem’s Sloppy Messes

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The Supreme Court intervened in two cases pertaining to Kristi Noem’s March 15 botched deportation effort yesterday.

First, John Roberts paused review of Kilmar Abrego Garcia’s case. And, shortly thereafter, the entire court ended James Boasberg’s Temporary Restraining Order on deportations under the Alien Enemies Act (captioned as JGG v. Trump), while holding that detainees must have access to habeas review before being deported.

Contrary to what you’re seeing from the Administration (and, frankly, many Trump critics), neither of these rulings settles Trump’s deportation regime, though the JGG opinion extends SCOTUS’ real corruption of rule of law in very ominous fashion (see Steve Vladeck on that, including his observation that just weeks after Trump called to impeach Boasberg, “Roberts has overruled Boasberg, in a move that Trump will view as sweet vindication”).

I’d like to consider them instead as means to help Kristi Noem clean up after her own incompetence. From a legal standpoint, there’s nothing (yet) unusual about the pause in Abrego Garcia’s case. Indeed, the timing of it may undermine the newly confirmed John Sauer’s efforts to win the case, as I’ll lay out below. As such it may interact in interesting way with the JGG opinion.

The JGG opinion intervenes in a TRO (which shouldn’t be reviewable at all) to take the case out of Judge James Boasberg’s hands the day before he was set to hear arguments on a preliminary injunction. That’s what Ketanji Brown Jackson laid out in her dissent: this was a naked intervention to prevent Boasberg from looking more closely.

I write separately to question the majority’s choice to intervene on the eve of the District Court’s preliminary-injunction hearing without scheduling argument or receiving merits briefing. This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.

Jackson notes that, as a result, key parts of this legal dispute will not be fully briefed, as Korematsu was.

At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.

The JGG opinion is silent about what happens to Boasberg’s contempt inquiry. While there are people, such as gay hair stylist Andry José Hernández Romero, whose deportation to El Salvador may have violated Judge Boasberg’s TRO and who — since he’s no longer in US custody — may not be stuck challenging their deportation in South Texas, it’s not clear whether any of the men who’ve been deported will be able to sustain the inquiry.

As for everyone else, the per curium opinion rebukes Trump’s original legal stance, which argued that Trump could declare a war and Marco Rubio could declare a bunch of people to be terrorists based on little more than tattoos and via that process deport them to slavery in El Salvador (though you wouldn’t know that from the Xitter posts of virtually everyone involved).

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement.

So courts, including SCOTUS, might yet find that Trump was totally unjustified in declaring his own little war. Courts, including SCOTUS, might yet rule Trump’s use of the AEA beyond the pale. But the legal review of that decision will take place in the Fifth Circuit, where such an outcome is far less likely than in DC.

Indeed, this decision might will be an effort to outsource the really awful work of sanctioning egregious constitutional violations to the circuit most likely to do so.

This was an entirely tactical decision, in my opinion. A gimmick. An unprecedented intervention in a TRO to prevent Boasberg from issuing a really damaging ruling in DC, yet one that affirmed thin due process along the way.

Meanwhile, consider how Abrego Garcia’s fate might complicate all this. As noted above, Roberts’ intervention, thus far, is not unusual. Indeed, by pausing the decision, Roberts made way for Abrego Garcia to submit a response, which corrected some of the false claims that John Sauer made in his filing, his first after being sworn in as Solicitor General. (Erwin Chemerinsky also submitted an amicus.)

Having held that detainees should have access to habeas before deportation, one would think that would extend to Abrego Garcia, who was not given time to challenge his deportation to El Salvador.

The government’s concession that the AEA detainees should get habeas review provided a place for SCOTUS to backtrack to without directly confronting Trump’s power grab. But consider how AUSA Erez Reuveni’s concessions, his admission that DHS knew there was an order prohibiting Abrego Garcia’s deportation to El Salvador, limit SCOTUS’ ability to do the same. That’s one of two key points the Fourth Circuit — a panel of Obama appointee Stephanie Thacker, Clinton appointee Robert King, and Reagan appointee Harvie Wilkinson — made in its opinion, issued at about the same time as Roberts halted the order. Just as the government ultimately conceded that the AEA detainees were entitled to due process, the government conceded that Abrego Garcia should not have been deported to El Salvador.

As the Government readily admits, Abrego Garcia was granted withholding of removal — “It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador.” Mot. for Stay at 16; see also Cerna Declaration at 53 (“ICE was aware of this grant of withholding of removal at the time [of] AbregoGarcia’s removal from the United States.”).3 And “the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection.” Mot. for Stay at 16–17. But, “the Government did not avail itself of that procedure in this case.” Id.; see Dist. Ct. Op. at 4 (Mr. Reuveni: “There’s no dispute that the order [of removal] could not be used to send Mr. Abrego Garcia to El Salvador.” (quoting Hr’g Tr., Apr. 4, 2025, at 25:6–7)); see also Guzman Chavez, 594 U.S. at 531 (explaining that a non-citizen who has been granted withholding of removal may not be removed “to the country designated in the removal order unless the order of withholding is terminated”). Based on those facts, the Government conceded during the district court hearing, “The facts — we concede the facts. This person should — the plaintiff, Abrego Garcia, should not have been removed. That is not in dispute.” S.A. 98 (emphasis supplied).4

3 Consistent with this reality, the Government attorney appearing before the district court at the April 4 hearing candidly admitted that no order of removal is part of the record in this case. Dist. Ct. Op. at 14 (citing Hr’g Tr. Apr. 4, 2025, at 20 (counsel admitting no order of removal is part of the record), and id. at 22 (counsel confirming that “the removal order” from 2019 “cannot be executed” and is not part of the record)).

4 Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of “zealous[] advocacy.” Evan Perez, Paula Reid and Katie Bo Lillis, DOJ attorney placed on leave after expressing frustration in court with government over mistakenly deported man, CNN (Apr. 5, 2025, 10:40 PM), https://www.cnn.com/2025/04/05/politics/doj-attorney-leave-maryland-father-deportation/index.html; see also Glenn Thrush, Justice Dept. Lawyer Who Criticized Administration in Court Is Put on Leave, New York Times (Apr. 5, 2025, 5:41 PM), https://www.nytimes.com/2025/04/05/us/politics/justice-dept-immigration-lawyer-leave.html. But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney. United States Department of Justice, Home Page, https://www.justice.gov/ (last visited Apr. 6, 2025) (“Our employees adhere to the highest standards of ethical behavior, mindful that, as public servants, we must work to earn the trust of, and inspire confidence in, the public we serve.”). [links added]

With footnote 4, the Fourth Circuit established that DOJ was attempting to retaliate against Erez Reuveni and his supervisor, August Flentje, because Reuvani told the truth. (See also Reuters, which was the first outlet I saw with the story, and ABC, the first to report that Flentje was placed on leave along with Reuveni.)

I was struck by the retaliation in real time, because in fact Reuveni did what a slew of other attorneys have had to do, confess he didn’t know the answers to obvious questions. But something — perhaps Sauer’s review that earlier fuckups may limit his ability to get relief at SCOTUS — led DOJ to overreact in this case.

That is, by retaliating against Reuveni so egregiously, Pam Bondi’s DOJ (Todd Blanche is reportedly the one who made the order, but it also happened after Sauer may have started reviewing the case), DOJ may have made it more difficult for SCOTUS to engage in similar gimmicks down the road.

The Fourth Circuit also anticipated that DOJ would lie about Abrego Garcia’s request to be returned.

5 To the extent the Government argues that the scope of the district court’s order was improper because Abrego Garcia never asked for an order facilitating his return to the United States, that is incorrect. See S.A. 88 (arguing that the district court has “jurisdiction to order [the Government] to facilitate his return, and what we would like is for the Court to enter that order”); see also S.A. 74–75; 85–87.

Indeed, Sauer did just that.

In opposing a stay of the injunction in the court of appeals, respondents insisted that they did “request[]” the injunction that the district court entered. Resp. C.A. Stay Opp. 9. But contrary to respondents’ characterization, the court did not merely order the United States to “facilitate” Abrego’s return, ibid.; it ordered the United States actually to “effectuate” it, App., infra, 79a. If there were any doubt on that score, the court’s memorandum opinion eliminated it, by reiterating that its injunction “order[s]” that “Defendants return Abrego Garcia to the United States.” Id. at 82a (emphasis added). Again, respondents clearly disclaimed such a request in repeatedly telling the court that it “has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.” Id. at 42a, 44

Ultimately, Sauer may get his proposed solution — that Abrego Garcia gets moved from El Salvador to someplace else. But before that happens, he’ll have to account for the Fourth Circuit ruling that there’s no convincing evidence that Abrego Garcia is the terrorist Kristi Noem claims he is and that DOJ itself laid out cause to return him to the US.

The Supreme Court exhibited a willingness to engage in a gimmick decision to bail Trump out of one fuckup Kristi Noem made the weekend of March 15, to ignore Judge Boasberg’s order and deport a bunch of men with tattoos into slavery. It has not yet bailed Trump out of the other fuckup, including Abrego Garcia on one of those planes. Thus far, Trump has made things worse by retaliating against Reuveni for refusing to lie.

Which just makes SCOTUS’ challenge — to invent a gimmick to bail Trump out — all the more challenging.

Update: Predictably, in his reply, Sauer blames Reuveni for not being told some unspecified sensitive information that might excuse the defiance of a judge’s order.

Respondents (Opp. 10-11) cite statements by the attorney who was formerly representing the government in this case, who told the district court that he “ask[ed] my clients” why they could not return Abrego Garcia and felt that he had not “received * * * an answer that I find satisfactory.” They likewise cite his statements that “the government made a choice here to produce no evidence” and that agencies “understand that the absence of evidence speaks for itself.” Opp. 12 (citing SA120, SA128). Those inappropriate statements did not and do not reflect the position of the United States. Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.

Real judges would haul Sauer before them and insist he deliver that sensitive information withheld from the AUSA. Sadly, the Roberts court is well beyond that.

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The Four Kinds of Fuck-Ups Kristi Noem Committed on March 15

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The case of Kilmar Abrego Garcia has justifiably gotten a lot of attention. [docket]

Yesterday, the government confessed it sent him, on the third deportation flight on March 15, to El Salvador, in spite of a 2019 order prohibiting his deportation to El Salvador based on real fears of persecution, including gang targeting.

Here’s how Acting Field Office Director Enforcement and Removal Operations in Harlington, TX, Robert Cerna, described Abrego Garcia’s deportation in a declaration submitted to support the government’s claim that it fucked up but it can’t be forced to do anything about it.

5. On March 15, 2025, President Trump announced the Proclamation Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua.

6. On March 15, 2025, two planes carrying aliens being removed under the Alien Enemies Act (“AEA”) and one carrying aliens with Title 8 removal orders departed the United States for El Salvador. Abrego-Garcia, a native and citizen of El Salvador, was on the third flight and thus had his removal order to El Salvador executed. This removal was an error.

[snip]

12. The operation that led to Abrego-Garcia’s removal to El Salvador was designed to only include individuals with no impediments to removal. Generally, individuals were not placed on the manifest until they were cleared for removal.

13. ICE was aware of this grant of withholding of removal at the time AbregoGarcia’s removal from the United States. Reference was made to this status on internal forms.

14. Abrego-Garcia was not on the initial manifest of the Title 8 flight to be removed to El Salvador. Rather, he was an alternate. As others were removed from the flight for various reasons, he moved up the list and was assigned to the flight. The manifest did not indicate that Abrego-Garcia should not be removed.

15. Through administrative error, Abrego-Garcia was removed from the United States to El Salvador. This was an oversight, and the removal was carried out in good faith based on the existence of a final order of removal and Abrego-Garcia’s purported membership in MS-13. [bold]

One thing complicates this case: In 2019, an immigration judge took the hearsay word of an informant sufficiently seriously to detain Abrego Garcia based on a claim that he had ties to MS-13; the decision was upheld on appeal. But, as noted, Abrego Garcia also got a ruling that he legitimately feared deportation because he had refused to join Barrio 18 after they extorted his family and shut down their business. After that (and after his marriage to his US-citizen spouse) he was released from custody in 2019, during the first Trump term.

Here’s how Abrego Garcia himself described things.

Plaintiff Kilmar Armando Abrego Garcia (“Mr. Abrego Garcia”) won an order from an immigration judge (“IJ”) prohibiting his removal to El Salvador, after he established it was more likely than not that he would be persecuted in that country on account of a statutorily protected ground. The government could have chosen to appeal that order, but did not. The government could have chosen to remove Mr. Abrego Garcia to any other country on earth, but did not. The government could later have filed a motion to reopen proceedings against Mr. Abrego Garcia and seek to set aside the order of protection, but did not. Instead, the government put Mr. Abrego Garcia on a plane to El Salvador, seemingly without any pretense of a legal basis whatsoever. Once in El Salvador, that country’s government immediately placed Mr. Abrego Garcia into a torture center—one that the U.S. government is reportedly paying the government of El Salvador to operate. This grotesque display of power without law is abhorrent to our entire system of justice, and must not be allowed to stand.

The government, however, says the onus was on Abrego Garcia and his spouse to challenge his detention with a habeas petition, but they cannot here because he is no longer in US custody.

Because Plaintiffs seek Abrego Garcia’s release from allegedly unlawful detention on the grounds that it was effected illegally, they make a core habeas claim, and they must therefore bring it exclusively in habeas.

But there is no jurisdiction in habeas. Plaintiffs admit—as they must—that the United States does not have custody over Abrego Garcia. They acknowledge that there may be “difficult questions of redressability” in this case, reflecting their recognition that Defendants do not have “the power to produce” Abrego Garcia from CECOT in El Salvador.

This adopts an argument DOJ made in the main El Salvador deportation case before the DC Circuit, one Justin Walker took as credible.

But it exposes the legal gimmick Trump is creating. He’s trying to deport people before they avail themselves of what Trump claims is their recourse, habeas, but once they’ve been deported, they can no longer avail themselves of a habeas petition because they’re no longer in US custody.

The government also argues that they’re helpless to convince Nayib Bukele to send Abrego Garcia back.

Despite their allegations of continued payment for Abrego Garcia’s detention, Plaintiffs do not argue that the United States can exercise its will over a foreign sovereign. The most they ask for is a court order that the United States entreat—or even cajole—a close ally in its fight against transnational cartels.

[snip]

There is no showing that any payment made to El Salvador is yet to occur; no showing that El Salvador is likely to release CECOT detainees but for any such payment; no showing that El Salvador is even inclined to consider a request to release a detainee at the United States’ request.

This case is particularly interesting given questions raised weeks ago about Bukele’s own ties to MS-13.

Some say Bukele is trying to hide his government’s own involvement with the gangs.

More than two dozen high-ranking Salvadoran gang leaders have been charged with terrorism and other crimes in a Justice Department investigation that has lasted years. Several of them are jailed in the United States. One of the indictments details how senior members of Bukele’s government held secret negotiations with gang leaders after his 2019 election. The gang members wanted financial benefits, control of territory and better jail conditions, the court documents say. In exchange, they agreed to tamp down homicides in public areas and to pressure neighborhoods under their control to support Bukele’s party in midterm elections, according to the 2022 indictment.

Bukele’s government went so far as to free a top MS-13 leader, Elmer Canales Rivera, or “Crook,” from a Salvadoran prison, according to the documents — even though the U.S. government had asked for his extradition. (He was later captured in Mexico and sent to the U.S.)

Last weekend, the Trump administration sent back one of the MS-13 leaders named in the indictments, César Humberto López Larios, alias “Greñas,” along with the 238 Venezuelans and nearly two dozen other Salvadorans allegedly tied to gangs.

Some Salvadoran analysts believe Bukele wants the gang leaders back so they won’t testify about his government’s involvement with them — and potentially put him in legal trouble.

“If these returns [of Salvadoran gang members] continue, it takes away the possibility that the U.S. judicial system will open a case against Bukele for negotiations and agreements with terrorist groups,” said Juan Martínez d’Aubuisson, an anthropologist who has studied the gangs.

That is, it so happens that Abrego Garcia got “accidentally” sent back to El Salvador based on a ruling that he might have ties to MS-13, even though a judge found he demonstrated a real fear of Barrio 18, the kind of complexities of organized crime that implicates Bukele himself.

Abrego Garcia wasn’t on the manifest, but then he was.

And note, above, Cerna’s inexplicable invocation of the Alien Enemies Act — the legal basis, he notes, for the deportation of those on the other two planes sent to El Salvador that day, but not, purportedly, the one Abrego Garcia was sent on. He was sent on a plane full of people with final removal orders, allegedly. So why raise the AEA, which is not at issue in this case?

That kind of seeming non sequitur is often a tell, that the current story — the story about the third plane — is not what we’re being told.

Abrego Garcia’s case is more complex than some are making out.

But his story needs to be put in context with all the other stories of that day.

Thus far, we know that Kristi Noem demonstrated the incompetence of her DHS in a number of ways on March 15.

She sent women on flights even though Bukele would only accept men.

She sent a Nicaraguan even though Bukele refused to accept other Central Americans.

She sent a slew of men, including a gay makeup artist and a professional soccer player, based primarily on their tattoos. (ACLU liberated one of the checklists showing the centrality of tattoos to determinations of Tren de Aragua membership.)

And she sent Abrego Garcia to El Salvador in defiance of a ruling that she couldn’t do that.

Everything we’ve learned about the flights on March 15 show how utterly incompetent Kristi Noem’s DHS is.

DOJ is trying to hide Noem’s incompetence via a range of legal ploys. Or, in the case of Abrego Garcia, they’re just disclaiming any responsibility to reverse her failures.

But as we discuss the Trump’s Administration’s assault on due process, it bears notice that they’re trying to eliminate due process even as Noem proves, over and over, that she’s utterly incompetent to do even what she claims she’s trying to do competently.

Update: Corrected gang that extorted Abrego Garcia’s family.

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