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

April 15, 2025/42 Comments/in emptywheel /by emptywheel

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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Amid DOGE’s Failure to Find Fraud Committed by Entities Other than DOGE, DOGE Automates Deportation

April 11, 2025/46 Comments/in emptywheel /by emptywheel

The other day, Acting ICE Director Todd Lyons claimed he wanted to get his deportation system working like Amazon Prime does.

The leader of Immigration and Customs Enforcement said that his dream for the agency is squads of trucks rounding up immigrants for deportation the same way that Amazon trucks crisscross American cities delivering packages.

“We need to get better at treating this like a business,” Acting ICE Director Todd Lyons said, explaining he wants to see a deportation process “like (Amazon) Prime, but with human beings.”

At first, I had a hard time even envisioning what he could mean by that. But then NYT described how Trump has starting setting the Social Security records of immigrants to dead as a way to debank them.

The goal is to cut those people off from using crucial financial services like bank accounts and credit cards, along with their access to government benefits.

The effort hinges on a surprising new tactic: repurposing Social Security’s “death master file,” which for years has been used to track dead people who should no longer receive benefits, to include the names of living people who the government believes should be treated as if they are dead. As a result of being added to the death database, they would be blacklisted from a coveted form of identity that allows them to make and more easily spend money.

Earlier this week, the names of more than 6,300 migrants whose legal status had just been revoked were added to the file, according to the documents.

The initial names are limited to people the administration says are convicted criminals and “suspected terrorists,” the documents show. But officials said the effort could broaden to include others in the country without authorization.

Their “financial lives,” Leland Dudek, the Social Security Administration’s acting commissioner, wrote in an email to staff members, would be “terminated.”

[snip]

On Tuesday, Aram Moghaddassi, a software engineer working for DOGE, sent Mr. Dudek the first batch of names to be added: the list of more than 6,300 immigrants homeland security officials had identified as having temporary legal status but who were now either on what he described as “the terrorist watch list,” or had been flagged as having “F.B.I. criminal records,” the documents show. The people’s parole status had been revoked that same day, Mr. Moghaddassi wrote.

The list included a 13-year-old and seven other minors, raising fears inside the agency that it was overly broad, according to one person familiar with the list who spoke on the condition of anonymity to discuss sensitive information.

This will likely work in tandem with DHS’ plan to enforce a registration system, starting today, that serves to turn undocumented presence in the US into a felony (ironically, DHS is formalizing this registration system after Pam Bondi announced she’ll shift away from prosecuting FARA crimes, meaning the foreigners trying to influence US politics get better treatment than the ones picking crops).

Meanwhile, the acting IRS Commissioner, Melanie Krause, has announced her resignation after losing the battle to prevent tax data from being repurposed to feed Trump’s migrant campaign.

Krause’s decision to accept the agency’s deferred resignation offer comes on the heels of the IRS and Department of Homeland Security finalizing an agreement Monday to provide sensitive taxpayer data to federal immigration authorities to help the Trump administration locate and deport undocumented immigrants.

The controversial data sharing agreement between the agencies was one factor that played a role in Krause’s decision to leave, according to one source with knowledge of the situation. The source said that the last draft of the agreement that Krause had been involved with, and had reviewed, was different than the final agreement. Krause learned about the details of the final agreement from the news, the source said.

The Social Security-driven debanking and the IRS data-sharing are both DOGE-led efforts to mine data collected for one purpose and use it for another purpose — to make the deportation system work like a modern supply chain does. You might think this effort has nothing to do with waste fraud and abuse, but as I noted, back on February 19, Trump added streamlining deportation to the mandate of DOGE.

Meanwhile, yesterday Elon Musk confessed DOGE only expects to find $150 billion in saving for FY26 (that is, starting in October), a fraction of a fraction of what he previously claimed.

Musk said he anticipates the $150 billion savings in the next fiscal year at Trump’s cabinet meeting Thursday.
Musk repeated his claim that fraud and waste were “very common” in the government, this time giving the example, without evidence, of “people getting unemployment insurance who haven’t been born yet.”
As recently as last month, Musk told Fox’s Bret Baier he expected DOGE to reach $1 trillion in savings by the time his tenure as a government employee is up in a matter of months.

This means that Elon won’t manage the same level of savings that the Inspectors General that Trump fired were on course to find, all without cutting services like Elon has. We could still have cancer cures and achieve the same level of savings — and all that’s before you consider the $500 billion hole Elon created in revenue projections.

Trump brought in an alleged illegal immigrant in the guise of finding waste fraud and abuse.

And all he achieved was to dramatically cut services that Americans cherish and, in the guise of finding fraud, automate the deportation system.

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Supreme Court Starts Cleaning Up Kristi Noem’s Sloppy Messes

April 8, 2025/113 Comments/in emptywheel /by emptywheel

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

April 1, 2025/113 Comments/in emptywheel /by emptywheel

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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Kristi Noem Invokes State Secrets to Cover-Up Her Inability to ID Women as Women

March 25, 2025/63 Comments/in emptywheel /by emptywheel

One of the transphobic right wing’s most annoying taunts is that Democrats can’t decide whether women are women. It is central to the long-running campaign to demonize trans people to claim that birth sex, which transphobes claim is a person’s true and immutable sex, is always immediately apparent.

Yet yesterday, Kristi Noem invoked State Secrets to cover-up the fact that she — and the agencies she runs — were unable to identify women as women. DOJ included Noem’s declaration as part of package invoking State Secrets in the Alien Enemies Act lawsuit yesterday.

The declarations, in general, are ridiculous given filings submitted by ACLU earlier yesterday.

Notice regarding information request
Declaration of SZFR (woman sent and then returned from El Salvador)
Declaration of EEPB (Nicaraguan man sent and then returned from El Salvador)

Both Rubio and Noem’s declarations include language claiming that official acknowledgement of details of the deportation flights — the kinds of details Judge James Boasberg might use to hold them in contempt — is different than, “assumptions, speculation, public investigation, or informal statements.” This, mentioning “informal” reports or statements five times, is from Noem’s declaration:

Disclosure of the information sought in the Court’s Minute Order would cause significant harm to the United States’ national security even assuming some of that information has already entered public sources as a result of assumptions, speculation, public investigation, or informal statements. It is both true and well known that official acknowledgement of a fact may be damaging to national interests in a way that informal suggestions or speculation about that information is not. If the government were to confirm or deny the information sought by this Court’s Minute Order, there would arise a danger that enemies of our national security would be able to stitch together an understanding of the means and methods used to thwart their unlawful and sometimes violent conduct.

[snip]

There is a difference between official acknowledgement and informal reports: Official disclosures or acknowledgements threaten the United States’ national security interests in a way that informal reports or statements do not, because informal statements leave an important element of doubt that provides an essential layer of protection and confidentiality. That protection would be lost if the United States were forced to confirm or deny the accuracy of unofficial disclosures or speculation. [my emphasis]

But the plaintiffs’ declaration notes that after Nayib Bukele posted a propaganda video showing three planes that had brought detainees to El Salvador, with tail numbers visible, both Trump and Rubio effectively ratified by reposting the video.

In addition, public information shows that two planes were still in the air when the Court issued both its oral and written Orders. Most significantly, based on information publicized by U.S. government officials and publicly available flight data, at least two flights took off during the hearing on March 15—one at 5:26pm EDT and the other at 5:45pm EDT—and landed well after this Court’s written Order had been filed. See Pls. Resp. to Defs. Notice (ECF No. 21); see also Joyce Sohyun Lee and Kevin Schaul, Deportation Flights Landed after Judge Said Planes Should Turn Around, Wash. Post (Mar. 16, 2025). 2 And the video released by President Bukele that shows Plaintiff class members being hauled off the planes in El Salvador includes each plane’s tail number.3 That video was then reposted by both President Trump4 and Secretary of State Rubio.5

2 https://www.washingtonpost.com/immigration/2025/03/16/deportation-flights-trump-elsalvador [https://perma.cc/Q6NH-ATY8]

3 https://x.com/nayibbukele/status/1901245427216978290 [https://perma.cc/BM73-547H].

4 https://truthsocial.com/@realDonaldTrump/posts/114173862724361939 [https://perma.cc/67LY-FREW].

5 https://x.com/SecRubio/status/1901252043517432213 [https://perma.cc/RXH4-XH4R].

The Xitter post from Rubio, using his official Secretary of State Xitter account, specifically says, “Thank you for your assistance and friendship, President Bukele” in response to his claim that 238 members of Tren de Aragua “arrived in our country” effectively ratifying that those planes were the ones used, and that the number Bukele used was the one given to him.

Perhaps the government is prepping a claim that these are “informal” statements. But Donald Trump has fired people by tweet, over and over, and nominated a good number of cabinet members by tweet, including Noem herself.

Trump’s tweets have official effect. To claim Trump’s tweet didn’t ratify Bukele’s post is nonsense.

Rubio and Noem’s focus on the danger of official confirmation is about refusing to provide Boasberg details showing that DHS had not done adequate vetting of the detainees to sustain the claim they really were members of Tren de Aragua. Again, this is from Noem’s declaration:

In addition to flight operations, the number of TdA members on a given removal flight is also information that, if disclosed, would expose ICE’s means and methods, thus threatening significant harm to the national security of the United States. Revealing and/or confirming the number of TdA members involved would reveal key details about how the United States conducts these sorts of operations and would allow other aliens (members of TdA and otherwise) to draw inferences about how the Government prioritizes and uses its resources in immigration enforcement and counterterrorism operations.

[snip]

When the United [sic] seeks to remove individuals to a foreign country, the United States must negotiate the details of that removal with the foreign country. This requires nonpublic, sensitive, and high stakes negotiation with the foreign State, particularly where, as here, the aliens being removed have been deemed enemy aliens and members of a foreign terrorist organization. Those negotiations cover sensitive issues, including representations regarding the bases on which the individuals are being removed from the United States, which can impact the foreign State’s willingness to accept the removed aliens and the procedures it will employ in doing so.

[snip]

Similarly, if sensitive information covered by a compelled disclosure — for example, the number and nature of aliens removed to the foreign State — were to come to light — the receiving foreign State’s government could face internal or international pressure making that foreign State and other foreign States less likely to work cooperatively in the future with the United States on matters affecting its national security.

Moreover, if a disclosure were to in any way undercut or, in the eyes of a foreign State (fairly or not) cast doubt on representations made by the United States during sensitive negotiations, that could likewise make that foreign State and other foreign States less likely to work cooperatively with the United States on matters affecting its national security.

Noem is not entirely making shit up (nor is she lying, elsewhere in her declaration, that confirmation that the flights landed in Honduras could cause problems).

Bukele said he was given 238 members of TdA. It was key to his propaganda campaign. If Boasberg now finds that’s false, it might well embarrass Bukele (though he’s pretty immune from embarrassment).

The problem for Noem and Rubio, is ACLU already presented two sworn declarations asserting that the Trump Administration’s public representations were false. EEPB, for example, described being told that El Salvador would not accept him, a Nicaraguan, because it would cause “conflict.”

I overheard a Salvadoran official tell an ICE officer that the Salvadoran government would not detain someone from another Central American country because of the conflict it would cause. I also heard him say that they would not receive the females because the prison was not for females and females were not mentioned in the agreement. I then saw the ICE officer call someone, and after the call, I overheard him saying we had to be sent back.

They included a guy whose accent undoubtedly makes it clear he’s not Venezuelan, but claimed he was a Venezuelan anyway.

More alarming still, Venezuelan woman SZFR — who, like other women on one of the planes, had not yet been formally deported and so by definition should only have been on one of the planes alleged to carry TdA members — described guards on the plane acknowledging that they knew an order prohibited the departure of the plane. She also described that guards were trying to force the male detainees on the plane to sign forms admitting they were TdA members.

10. When we got on the plane there were already over 50 men on the plane. I could see other migrants walking to the plane but we took off before any additional people boarded.

11. Within a couple of minutes of take off I heard two US government officials talking and they said “there is an order saying we can’t take off but we already have.”

12. I asked where we were going and we were told that we were going to Venezuela.

13. Several other people on the plane told me they were in immigration proceedings and awaiting court hearings in immigration court.

14. We were not allowed to open our window shades.

15. We landed somewhere for refueling. We were there for many hours. We were arm and leg shackled the whole time.

16. We took off again and landed fairly quickly. I was then told we were in El Salvador.

17. While on the plane the government officials were asking the men to sign a document and they didn’t want to. The government officials were pushing them to sign the documents and threatening them. I heard them discussing the documents and they were about the men admitting they were members of TdA.

18. After we landed but were still on the plane a woman opened the shade. An officer rushed to shut the shade and pushed her down by her shoulders to try and stop her from looking out. The person that pushed her down had HOU-02 on his sleeve.

19. I saw out the window for a minute and I saw men in military uniforms and another plane. I saw men being led off the plane. Since I’ve been back in the U.S. I have seen news coverage and the plane I saw looks like the one I’ve seen on TV with migrants from the U.S. being delivered to El Salvador.

20. All the men got off the plane. The remaining women asked what happens to us? I was told that the President of El Salvador would not accept women. I was also told that we were going back to detention in the U.S. [my emphasis]

But the most important part with respect to Noem’s sworn statement that she can’t reveal details about who was on the plane is that the agreement with Bukele said he would not accept women.

And yet Kristi Noem’s DHS sent women — around nine of them — anyway.

There’s a lot that Noem is trying to cover up with her State Secrets declaration, starting with how incompetent her DHS is.

But one of the key details she’s trying to cover up is that a committed transphobe like Noem couldn’t even properly identify the sex of the detainees she was sending to El Salvador.

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Trash Talk: Won’t Somebody Think of the Children Edition

September 16, 2023/114 Comments/in Culture, Football, Republicans, Trash Talk /by Rayne

[NB: check the byline, thanks. /~Rayne]

Bonus second Trash Talk today, a day with perfect football weather here in Michigan — temperatures in the upper 60s to low 70s , partly cloudy, light wind out of the southwest. The scent of freshly mown grass mingled with smoke from tailgaters’ grills, heightening anticipation for today’s games. Depending on where you live, games may already have wrapped or are underway as they are in East Lansing, Michigan.

~ ~ ~

Anticipation doesn’t fully describe what Michigan State University fans and students are likely feeling today. You may already have heard about a new scandal centered on MSU’s football coach, Mel Tucker, who has been accused of sexual harassing behavior by activist Brenda Tracy.

The entire situation reeks because MSU was caught flat footed in its response to the situation in spite of the university’s past history dealing with scandal related to sexual abuse. You’ll recall the prosecution of former osteopathic physician Larry Nassar based on charges he sexually abused dozens of girls and women gymnasts during his practice affiliated with USA Gymnastics and his career with MSU. It took nearly a decade from the first complaints by athletes before Nassar was convicted and jailed.

Here’s a timeline of events related to the allegations about to Mel Tucker:

April 28, 2022 — During a phone call between Tracy and Tucker, Tracy alleged Tucker made sexual comments about her and engaged in nonconsensual masturbation.

December 2022 — Tracy filed a Title IX complaint with MSU.

July 25, 2022 — Rebecca Leitman Veidlinger, an outside investigator hired by MSU, completed the Title IX investigation into Tracy’s allegations.

September 10, 2023 — USA Today published a story disclosing Tracy’s allegations against Tucker, revealing Tracy’s identity. Though Tucker acknowledged to the investigatore he masturbated while on the phone with Tracy, he claimed they were engaged in consensual phone sex, denying misconduct.

September 10, 2023 — MSU suspended Tucker without pay and asked former associate head coach/co-defensive coordinator Harlon Barnett to assume the role of Acting Head Coach in addition to his role as Secondary Coach.

September 13, 2023 — Michigan State University Trustee Dianne Byrum demanded MSU conduct an investigation in the leak of Tracy’s identity which appeared in USA Today’s report. “I am disturbed and outraged by recent reports indicating the name of a claimant in a sexual harassment investigation was intentionally released in an apparent effort to retaliate against her. We should unequivocally condemn attempts to silence or retaliate against victims,” Byrum said.

September 14, 2023 — MSU announced the return of retired former head coach Mark Dantonio to assist Barnett. Dantonio will take on the role of associate head coach.

A hearing has been scheduled for the first week of October, the outcome of which may decide Tucker’s continuing employment with MSU.

Reporting about the allegations has been far from neutral. This report by USA Today — Mel Tucker made millions while he delayed the Michigan State sexual harassment case — published on September 14 assumed Tucker was deliberately delaying the hearing when he refused to accept the August 22-23 dates.

Never mind that August is the busiest month for an NCAA coach. MSU Spartans players attend a preseason camp beginning August 3. Dorm move-in dates are August 22-24. First classes are August 28. The team had 15 practices scheduled between the end of camp and the season opener on September 1.

But sure, Tucker was delaying the hearing. Never mind that USA Today then hammered on Tucker’s wages which surely reflects the intense pressure Tucker’s been under to improve on the Spartans’ past lackluster performance.

The inability to find workable dates in September was a more legitimate problem, but September with a new team is also just as sensitive for NCAA football coaches. The October date makes a lot more sense (and is hardly the kind of extension a certain former president demands for criminal charges).

The intense public scrutiny about this case also wouldn’t have emerged had not USA Today decided to publish its September 10 and 14 pieces. The public would have heard after the October hearing that Tucker was fired if it was determined he violated Title IX, or perhaps the public would never have heard anything if it was determined his behavior had no affect on education under Title IX.

Detroit Free Press shared an interview conducted by FOX 2 Detroit with Tucker’s employment attorney, Deborah Gordon. She’s one of the best employment attorneys in the state and also recommended for representation in Title IX cases. Her explanation of what Tracy and Tucker can expect from the hearing is worth a listen. And yet the Free Press also takes a position by not pushing back against Gordon’s claim to FOX 2 that Tucker was a “high profile guy” who Tracy wanted to “go after. And she did it.”

Of course Tucker’s attorney would say this. What kind of attorney wouldn’t do that for their client?

MSU Spartans play No. 8 ranked Washington Huskies at home in Lansing today – kickoff was at 5:06 p.m. ET.

Expect players, their families, friends, and fans to be quizzed about the scandal because the media needs clickbait.

Can’t imagine what current students and their families as well as prospective students and families are discussing at home about this situation, because nobody in the media is thinking about them at all, nor teaching them about the concept of assuming innocence until one is proven guilty.

~ ~ ~

Disgust as a “conservative” emotion — ?

We kicked around some disgusting GOP behavior in comments last evening beginning with South Dakota Gov. Kristi Noem’s skanky on-again-off-again-can’t-stop affair with GOP consultant and alleged sexual harasser Corey Lewandowski. I mentioned studies I’ve run across which found “conservatives” respond more negatively and more intensely to prompts which are often labeled disgusting. See the study linked below for a list of research, some of which underpinned the article in The Atlantic also linked below.

Elad-Strenger J, Proch J, Kessler T. Is Disgust a “Conservative” Emotion? Pers Soc Psychol Bull. 2020 Jun;46(6):896-912. doi: 10.1177/0146167219880191. Epub 2019 Oct 16. PMID: 31619133.
https://pubmed.ncbi.nlm.nih.gov/31619133/

McAuliffe, Kathleen. “Liberals and Conservatives React in Wildly Different Ways to Repulsive Pictures.” The Atlantic, Atlantic Media Company, 7 Dec. 2022, www.theatlantic.com/magazine/archive/2019/03/the-yuck-factor/580465/.

The fundamental problem with this is that many so-called conservatives regularly engage in disgusting behavior and yet this doesn’t shape their voting.

Take the obnoxious example of Lauren Boebert who acted like a particularly nasty spoiled brat recently. TPM has an overview and a video documenting Boebert’s latest public wretchedness:

There’s Videotape! Annals of Feral Lauren Boebert …

Why do GOP voters in Boebert’s district put up with her? This isn’t the first shitty behavior on her part. Even her business which has poisoned consumers giving them bloody diarrhea hasn’t been enough to stop them from voting for her. “Conservatives” in her district didn’t care. They voted her back in for a second term in 2022.

Ditto for Marjorie Taylor Greene and her sorry love life — okay, sex life, because her experiences don’t sound like they’re based on deep affection (It’s the DailyMail, brace yourselves for the photos of her extramarital partners). Just sex and a general disrespect for the traditional Christian institution of marriage with its demand to have and hold a partner while forsaking all others.

Why aren’t “conservatives” in her district disgusted by her readiness to swap sweat, voting her nastiness back into office?

You can surely think of many other examples of disgusting behavior by right-wing candidates and officeholders, like former GOP Senate candidate and spouse abuser Eric Greitens.

Or the mack daddy of marital disrespect, Newt Gingrich, who’s treated animals better than his ex-wives.

And of course The Donald whose proclivities have been hidden by catch-and-kill operations, although not always successfully.

We all know by now that hypocrisy makes not a lick of difference to so-called conservatives. They’re happy bashing on Hunter Biden for his drug addiction, trashing Joe Biden for continuing to love and support his son in spite of Hunter’s challenges.

Why do conservatives’ brains react differently, then to images of disgust, while failing to act constructively on disgusting behavior?

How does the left more effective appeal to conservatives’ disgust when it’s also obvious their disgust can be generated deliberately, as Chris Rufo demonstrated with his attacks on critical race theory?

How do we address this disparity between research results and real life in a way that makes a difference to our nation’s children? Because they’re being taught sexual infidelity and abuse is okay if you’re a Republican, disrespect for vows, oaths, partners is also okay, and other sordid behavior like vaping in shared public space disregarding others’ health is just fine if you’re a Republican.

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GOP Denounces Barry Goldwater, John Tower, and Richard Nixon?

September 13, 2021/31 Comments/in Biden Administration, COVID-19 /by Peterr

John Tower and Barry Goldwater, ca. 1963.

The Republican governors are all clutching their pearls over Biden’s announcement to use the power of the federal government to require many businesses across the country to ensure their employees are either vaccinated against COVID-19 or are regularly tested. The New York Times did a round-up of some their comments, many taken from either Twitter or Sunday morning talk shows. Here’s a taste . . .

Now, they [various GOP governors] are arguing that Mr. Biden’s plan is a big-government attack on states’ rights, private business and personal choice, and promise swift legal action to challenge it, setting up a high-stakes constitutional showdown over the president’s powers to curb the pandemic.

“@JoeBiden see you in court,” Gov. Kristi Noem of South Dakota wrote on Twitter. Gov. Mark Gordon of Wyoming said the new rule “has no place in America,” and said he had asked the state’s attorney general to be ready to take legal action.

In Texas, Attorney General Ken Paxton questioned President Biden’s authority to require vaccinations or weekly testing at private businesses with more than 100 workers.

“I don’t believe he has the authority to just dictate again from the presidency that every worker in America that works for a large company or a small company has to get a vaccine,” Mr. Paxton said, speaking on a radio show hosted by Steve Bannon, who served as a strategist for Donald J. Trump during part of his presidency. “That is outside the role of the president to dictate.”

[snip]

Gov. Greg Abbott of Texas called the actions an “assault on private businesses” in a statement on Twitter. He said he issued an executive order protecting Texans’ right to choose whether or not they would be vaccinated. “Texas is already working to halt this power grab,” he wrote.

Gov. Doug Ducey of Arizona wrote on Twitter: “The Biden-Harris administration is hammering down on private businesses and individual freedoms in an unprecedented and dangerous way.” He questioned how many workers would be displaced, businesses fined, and children kept out of the classroom because of the mandates, and he vowed to push back.

*sigh*

Friends, let me introduce you to Public Law 91-596, initially signed into law on December 29, 1970 by Richard Nixon, and amended variously since then. Below are the first two sections of the law. Notice, please, the language I’ve highlighted with underlining (bold is from the original text):

An ActTo assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health; and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Occupational Safety and Health Act of 1970.”

Footnote (1) See Historical notes at the end of this document for changes and amendments affecting the OSH Act since its passage in 1970 through January 1, 2004.

SEC. 2. Congressional Findings and Purpose(a) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources —

My, but the language of paragraph (a) sounds like Congress intended the US Department of Labor to regulate conditions that create or spread illnesses in the workplace, and paragraph (b) states pretty clearly where Congress claimed the authority for doing so is grounded in the Commerce Clause of the US Constitution.

Continuing on, the act spelled out some of the details of that “purpose and policy” with the following 13 sub-paragraphs (again, underlining is mine):

(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act;

(4) by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;

(5) by providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems;

(6) by exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety;

(7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience;

(8) by providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health; affecting the OSH Act since its passage in 1970 through January 1, 2004.

(9) by providing for the development and promulgation of occupational safety and health standards;

(10) by providing an effective enforcement program which shall include a prohibition against giving advance notice of any inspection and sanctions for any individual violating this prohibition;

(11) by encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws by providing grants to the States to assist in identifying their needs and responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions of this Act, to improve the administration and enforcement of State occupational safety and health laws, and to conduct experimental and demonstration projects in connection therewith;

(12) by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem;

(13) by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment.

And what kind of liberal cabal forced this clearly authoritarian legislation through Congress? I’m glad you asked.

The Senate vote was 83-3, with 14 not voting. Among the 83 were Barry Goldwater and John Tower — not exactly a liberal pair of folks. The only three senators to vote against this were James Eastland, Sam Ervin, and Strom Thurmond. Over in the House, the final vote was 310-58, with 65 not voting. Looking at the voting patterns of some of the state delegations, it’s plain to see that this was both bipartisan and widely accepted on their side of the building, too.

Kentucky (4D/3R) voted 7-0-0;
Wisconsin (5D/5R) voted 9-0-1;
Oklahoma (4D/2R) voted 5-0-1;
Florida (9D/3R) voted 6-4-2, with the 4 nays all Democrats and 2 who abstained both GOP;
Tennessee (5D/4R) voted 5-1-3 (the 3 included 2 Dems and 1 Republican);
Arkansas (4D/1R) voted 4-0-1 (the 1 was a D);
South Dakota’s (2R) voted 1-0-1;
Montana (2D) voted 2-0-0;
Wyoming’s sole GOP representative voted aye.

In other words, there were staunch conservatives who voted for this, along with plenty of non-conservatives. The bill that became Public Law 91-596 was seen by a wide majority of both the members of the House and Senate to be a good thing, and well within the powers of the Federal Government to undertake.

Go back to the text of the law above, and look at items 6 and 7. These both make clear that OSHA’s mission includes dealing with disease transmission in the workplace. Then skip down to 11, which says the Federal government should work with states, including providing grants for this work. You know, like providing a free vaccine to deal with disease transmission in the workplace.

OSHA has been around for more than 50 years, and no one has succeeded in challenging their the authority to regulate health conditions in the workplace under this act. There have been successful arguments overturning specific regulations, but the authority to regulate has not been overturned.

I’m not a governor or an attorney general, but I can read the plain text of the law. I can see the wide political range of legislators who voted to create OSHA, and given that OSHA is still here and going strong after 50 years, it’s clear that the ability of the federal government to regulate the workplace for safety and health has not been overturned or declared unconstitutional.

So if anyone reading happens to be in conversation with one of these pearl-clutching Republican leaders when they start in on their “This is unprecedented and un-American!” nonsense, ask them for a link.

Better yet, ask Governor Ducey why Goldwater voted for OSHA. Ask Governor Abbott and AG Paxton why John Tower voted for OSHA. Ask any of today’s so-called conservatives why a bunch of other conservatives voted with Goldwater and Tower to approve OSHA, and why a conservative like Richard Nixon signed it.

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Mark Meadows and the Potemkin Shut-Downs: Welcome to the April’s Fool White House

April 14, 2020/69 Comments/in COVID-19 /by emptywheel

I know the White House has been running on Trump’s fumes for so long we’ve forgotten that Chiefs of Staff can exercise real power.

I’d like to suggest two things we’ve seen in the last week may reflect the hand of Mark Meadows.

The first is Monday’s campaign video played in the middle of Trump’s briefing, something Trump said Dan Scavino made inside the White House — a violation of the Hatch Act.

In a mash up of clips and audio that amounted to campaign ad, Trump lashed out at critics and returned to his favorite past time of going after reporters. The video began with a white screen saying “the media minimized the risk from the start.” At one point, it showed news clips of different governors giving kind remarks about the president’s response to the pandemic.

[snip]

When a reporter pressed him about the video resembling a campaign ad, Trump said it was done in the office. “We’re getting fake news and I’d like to have it corrected,” he declared.

The president also claimed that White House Director of Social Media Dan Scavino created the video, prompting reporters to question the fact that he had government employees put together what was essentially a campaign advertisement.

There’s nothing that suggests Meadows determined the content of it, but several of the decisions made in the almost two weeks since Meadows has been in place involve merging the White House and the campaign — most notably, the replacement of Stephanie Grisham with his campaign press secretary Kayleigh McEnany.

But I also suspect Meadows is behind a far more important strategy on shut-downs, in which Trump allies carry out a Potemkin shut-down, only to reopen quickly, probably in the context of graft as payoff. For this one, there’s explicit evidence in the Bloomberg coverage of his first week: Meadows convinced a number of hold-outs to enact stay-at-home orders.

Meadows has also gotten involved in the administration’s coronavirus response, calling Republican governors who have held out against issuing stay-at-home orders in their states to ask them to implement the policies immediately, according to two people familiar with the calls. The president has said such decisions are up to state leaders and has not publicly criticized those who decline, who are all Republicans.

[snip]

Meadows has also tried to persuade a group of holdout Republican governors that they should issue shelter-in-place orders to help curb the coronavirus outbreak. It isn’t clear if the new chief of staff has Trump’s blessing for the calls. The president has publicly said it is up to governors and local leaders to decide whether stay-at-home orders are appropriate and has declined to criticize the holdouts, all of whom are his political allies.

The governor of one of the holdout states, Kristi Noem of South Dakota, tweeted Wednesday that she’d spoken with Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, who is a top medical adviser to the president. “Thankfully, he AGREES that a one-size-fits-all approach isn’t the answer in our state,” Noem wrote.

The tweet, according to one person familiar with the matter, was read by some as a signal to Meadows.

The week that Meadows started, a bunch of Trump flunkies issued stay-at-home orders: Arizona’s Doug Ducey (which was issued before Meadows officially started on April 1 and which extends through April 30), Florida’s Ron DeSantis (issued on April 1 and effective through April 30), Georgia’s Brian Kemp (which he has already extended through April 30), Mississippi’s Tate Reeves (imposed April 1, effective April 3, effective through April 20), Missouri’s Mike Parsons (imposed April 3, effective April 6, effective through April 24), South Carolina’s Governor Henry McMaster (imposed April 6, effective April 7, effective until rescinded). On March 31, Texas’ Governor Gregg Abbott issued an order that has been taken as a stay at home order which stops short of that; it remains in effect through April 30.

At least some of these governors, given the timing and the Bloomberg report, were cajoled by incoming Chief of Staff Mark Meadows to do so.

Last Thursday, days after his stay-at-home order, Ron DeSantis started talking about reopening schools in May (to be clear: this shut-down is having the greatest impact on children, especially those who don’t have WiFi at home and rely on schools for other services, like hot lunches). Yesterday, Gregg Abbott told Hannity most states don’t need to wait until May 1 to reopen (even though his own order goes through May 1). And of course, Mississippi and Missouri’s shutdowns don’t even last that long (indeed, they were never long enough to do any good).

So it seems likely that the same governors whom Meadows convinced to impose stay-at-home orders will shortly rescind them, giving Trump the story that he wants, that some of the nation’s biggest states have come through the COVID crisis. In Texas and Florida, in particular, a governor’s recision of a stay-at-home order might supersede those in badly affected cities (and both states are artificially limiting the number of official positive cases, in Texas by not testing likely cases in Houston, and in Florida by playing games with snowbirds.

I also suspect that one reason Mitch McConnell is refusing to negotiate with Nancy Pelosi over the other things she’d like to include in the next COVID relief package — which would include, among other things, $150 billion for state and local governments. McConnell wants to deal with such aid in a fourth aid bill and simply expand the funds available for the Paycheck Protection Program relief for small businesses, which is predictably already running out of money. The obvious reason to do that would be to withhold something that Trump can use as leverage over states and cities to do what he wants, rather than to give funds to them now without strings attached.

Trump believes, the Constitution notwithstanding, that he has either the authority or power to make states reopen. And given that Meadows was involved in getting a handful of states to impose what will amount to shut-downs that don’t appear to be good faith efforts to achieve the goal of shut-downs (though Kemp may have realized he has a bigger problem on his hands than he originally claimed), my suspicion is that those shut-downs were part of a plan to achieve some kind of leverage over reopening the economy.

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