Constitutional Crisis: As Trump Ignores Judges’ Orders, Will the Courts Capitulate?

NERMEEN SHAIKH: We begin today’s show with the emerging constitutional crisis, as U.S. District Court Judge James Boasberg said Wednesday he found, quote, “probable cause” to hold the Trump administration in criminal contempt after its willful disregard of his order last month to halt flights transferring immigration detainees from the U.S. to El Salvador, where they ended up at the notorious CECOT mega-prison. Judge Boasberg noted in his order yesterday Trump officials have since, quote, “failed to rectify or explain their actions.” Boasberg has given the administration one week — that is, until April 23rd — to respond.

In his 46-page ruling, Boasberg recounted what happened when he directed officials to stop the planes from being sent to El Salvador, writing, in part, quote, “By mid-Sunday morning, the picture of what had happened the previous night came into clearer focus. It appeared that the Government had transferred members of the Plaintiff class into El Salvador’s custody hours after this Court’s injunction prohibited their deportation under the Proclamation. Worse, boasts by Defendants intimated that they had defied the Court’s Order deliberately and gleefully. The Secretary of State, for instance, retweeted a post in which, above a news headline noting this Court’s Order to return the flights to the United States, the President of El Salvador wrote: [quote] ‘Oopsie … Too late.’”

AMY GOODMAN: And the U.S. secretary of state retweeted the Salvadoran president.

The legal escalation came as Maryland Senator Chris Van Hollen traveled to El Salvador but was blocked from seeing or speaking to Kilmar Abrego Garcia, a Maryland father who was sent to the mega-prison in El Salvador on the March flights in what Homeland Security has admitted was an “administrative error.” Both the Trump administration and the government of President Nayib Bukele have refused to release and return Abrego Garcia.

Senator Van Hollen spoke to reporters in San Salvador yesterday after meeting with the Salvadoran vice president.

SEN. CHRIS VAN HOLLEN: The Trump administration is clearly in violation of American court orders. … Why is the government of El Salvador continuing to imprison a man where they have no evidence he’s committed any crime and they’ve not been provided any evidence from the United States that he’s committed a crime? …

President Trump and our Attorney General Pam Bondi and the vice president of the United States are lying when they say that Abrego Garcia has been charged with a crime or is part of MS-13. That is a lie.

AMY GOODMAN: Senator Van Hollen said El Salvador’s vice president told him that they would keep Abrego Garcia locked up since the U.S. government is paying his country to do so. The senator also said more members of Congress are planning to visit El Salvador soon. Van Hollen’s visit came as Defense Secretary Pete Hegseth welcomed El Salvador’s defense minister to the Pentagon.

For more, we’re joined by Vince Warren, executive director of the Center for Constitutional Rights.

So, Vince, we’ve got these two situations, both clearly leading up to, if we’re not already in, a constitutional crisis. You have the judge in Kilmar’s case demanding evidence that the Trump administration is working to get him home, facilitating. And you’ve got Judge Boasberg saying he is about to find Trump officials in criminal contempt. Explain, start there, and what this is all about — not civil contempt, criminal contempt. The next key date is next Wednesday, April 23rd.

VINCENT WARREN: Yeah. Thank you, Amy.

We actually are in a situation now where we have two federal judges that are demanding information about the government’s actions in deporting people. And that’s a normal exercise. What is not normal here is that the government is providing no information, not even the most basic factual information, about what’s been happening.

So, the courts — the criminal contempt stems from Judge Boasberg’s finding that because the government has apparently deported, sent men to El Salvador after the judge’s order — rather, that they were in El Salvador after the judge’s order, and they could have been brought back, he’s saying that this was done willfully. And, you know, putting that in English, what “willfully” means is that you did it on purpose, you knew what you were doing, and you actually didn’t care. And that is punishable by criminal contempt.

What’s interesting here is that the Supreme Court also, as your viewers know, found that the — it essentially disbanded this big TRO that Judge Boasberg did, but Judge Boasberg is saying, “Look, there was a judicial order from this court saying, ‘Turn the planes around,’ and you did not do it. You didn’t give us a reason why you didn’t do it. You, you know, posted ‘Oopsie’ and thumbed your nose at the judge. We can’t have a situation where the administration just doesn’t care what the federal courts say about what they do.”

NERMEEN SHAIKH: Well, who would be responsible, I mean, if there is, presumably, because, as you said, it’s criminal contempt? Someone would be responsible for carrying out that punishment. But that something would be the Department of Justice, which is itself responsible or answerable to the Trump White House.

VINCENT WARREN: Yeah, this is where it gets really, really messy, Nermeen. So, the court has a number of options. And one of the options is to refer the case to the Justice Department upon a finding of probable cause, and the Justice Department should prosecute. I don’t think that Pam Bondi is going to prosecute anything. So that’s one problem.

Another problem is that the judge will say, “Well, I will appoint a lawyer, a judge, to prosecute this case if the Department of Justice won’t.” That can move forward, but it does require people being brought in before the court to be able to face those charges. And, of course, the entity that actually apprehends people to bring them to the court is the U.S. Marshals, which is under the purview of what? The executive branch.

So, essentially, there are three opportunities for the Trump administration to thumb their nose. Number one, they can say, “No, we’re not going to prosecute.” Number two, they can order the Marshals not to apprehend people. Number three, even if it goes forward, that the president can still issue a pardon. So what we’re talking about here is a constitutional crisis that is going to be made real, only by the inaction and the refusal to comply with the law by the Trump administration.

NERMEEN SHAIKH: But what kind of explanation would be sufficient, do you think, by a week from now, on the 23rd? What would the Trump administration need to provide?

VINCENT WARREN: Well, there are two things that I think are important for this. Number one is that they need to provide real-time information about their attempts to comply with the judge’s order during that time. “Judge, we tried to do this. We asked so-and-so to not send to so-and-so.” And that’s one thing.

Another thing that they can actually do is that they can reassert jurisdiction and custody over the people that are in El Salvador, meaning that they do have the ability, being in U.S. custody even in El Salvador, to be able to comply with the court’s orders, particularly with respect to giving hearings to the men who they’ve transferred.

The irony of this whole thing is that what Judge Boasberg is doing is providing the government with the same type of due process in terms of criminal contempt that the government refuses to give to the men that they have sent to El Salvador. So, due process apparently only works one way. And they will demand due process in these hearings for their government officials, but they will not give it to the people that they’re sending away.

AMY GOODMAN: So, one way that the White House could cure this is just sending the men back on the plane, right? I think that the judge has made that clear. The other way is to explain who is responsible next Wednesday.

And obviously, these two cases are related, because one of the men on those flights was Kilmar. Can you talk about the significance of the Maryland senator — Kilmar is from Maryland — I mean, is Salvadoran, fled gang violence in Salvador, came to Maryland, and there he’s lived for many years.

But also, while they talk about Kilmar, there’s no evidence that he is guilty of any crime. It makes it sound like the other hundreds of men are. You’ve got the front page of The New York Times today, actually, “Labeled ‘Alien enemies’ and Banished, With Little or No Evidence.” The hundreds of men, a number of them can be in the same situation as Kilmar.

Now, we’ve got the judiciary, we’ve got the executive branch, and we’ve got the legislative branch. That’s Maryland Senator Van Hollen. He can’t get an answer. And we watched President Trump sitting with Salvador’s President Bukele. He didn’t turn to him and say, “I want Kilmar returned.” No one doubts for a minute that if President Trump ordered, that he would be returned immediately.

VINCENT WARREN: Exactly. That situation with the two presidents sitting there, like, “Oh, bro, what are we going to do?” was outrageous. And, you know, I will tell you that if I were in any place in the world and there was a warrant for my arrest to come back to the United States, they would have me back in 45 minutes. So, they’re saying, “Oh, there’s nothing we can do.” It’s outrageous. It’s ridiculous. It’s wrong. It’s a lie.

And I think the significance of congresspeople going down to CECOT to demand to see the people that are there that are in their jurisdiction or from their jurisdiction is really key. I would also note that the El Salvador president has no problem having Republicans come down. They can do, you know, beauty pageants in front of CECOT with Kristi Noem and have Republicans go in, but they’re not allowing the Democrats to go in. That’s pure politics. And it’s actually messing up the way that the judicial branch and the executive branch and legislative branch should be working to solve this problem.

AMY GOODMAN: Do we have proof that Kilmar is even alive?

VINCENT WARREN: I have not heard information on that at all.

AMY GOODMAN: No one has spoken to him, apparently.

VINCENT WARREN: And that’s why — that’s why it’s important for lawyers and for people to be able to come down and see, to see them and to talk with them, because anything could have happened. They could be tortured. They could be dead. They could have medical emergencies. And so, it’s not just an empty political exercise to be able to go down to talk to people. This is sort of core human rights work. You have to lay eyes on human beings to figure out what’s happening to them and what conditions that they’re in, and then you go from there.

NERMEEN SHAIKH: Well, I mean, could you talk, Vince, also about the way in which all of these different law firms, I mean, the entire legal foundation of the U.S., there’s such key institutions that are capitulating to Trump, one after the other? What do you think — what are the effects of that likely to be as Trump continues all of these extralegal measures and invoking the 1798 Alien Enemies Act to do what he’s doing in the first place?

VINCENT WARREN: You know, I talk to people in law firms, and I say, “You have to understand that you right now, law firms, are the biggest tool in building an authoritarian regime.” Because everybody knows the first thing they do is they go after the judiciary, they go after the legislative branch, they go after the lawyers, they go after civil society, they go after universities. This has happened in every country in which there’s been an authoritarian regime.

And here, the lawyers are — the law firms, I should say, are capitulating, and they’re creating a tremendous opportunity, for one, for us to not be able to vindicate the rights of the people that are being taken, but, number two, in these shady deals that they have, they’re agreeing to provide billions of dollars of free legal advice to the Trump administration. And you know doggone well that the Trump administration is not going to allow these law firms, that used to be with us representing the victims, to now represent the victims. They’re only going to represent the perpetrators, which is the Trump administration.

AMY GOODMAN: I mean, this is very important, that Trump has demanded, and a number have acceded to, or several have acceded to, $100 million worth — two law firms, in this case — of pro bono work for the causes that Trump cares about. But what isn’t said is that then they probably will not represent, pro bono, people like those that you work with these law firms to represent. And I was wondering if I could ask you about the one case that you have just joined, Center for Constitutional Rights, in filing an amended habeas corpus petition on behalf of another person taken to CECOT. That’s Edicson David Quintero Chacón. Who is he?

VINCENT WARREN: So, we filed this case because we have a number of clients that are in immigration detention right now and that need to be protected against moving forward. We’re very concerned that the larger case is being sort of obstructed by the fact that these people are being moved. And what we’re trying to do is we’re trying to secure for as many people as we can the right to be able to have their immigration cases done fully and done completely. We’re trying to avoid the context that was happening in the Garcia case, where they just rushed people off, and then the judges and the lawyers are saying, “You shouldn’t take this person, because they’re not who you’re saying that they are.” And we’re trying to be able to put flags in the ground in a number of places in order to make sure that that doesn’t happen to future people.

AMY GOODMAN: I want to thank you very much for being with us. Your final comment, you, a lawyer, deeply concerned about what’s taking place, what you are most watching out for right now?

VINCENT WARREN: What I’m watching out for, and I think what we should be concerned about, really are two things, overall, in the Trump legal fights. And that is, number one, I am concerned that the courts will capitulate and that the courts will — that other federal judges will allow the Trump administration to get away with what they’re trying to do. And the other thing that I’m concerned about is, even if the courts don’t capitulate, if they do issue these orders, I’m very concerned that the Trump administration will say, “Yeah, oopsie. We don’t really care.”

AMY GOODMAN: Vince Warren, executive director of the Center for Constitutional Rights.

Next up, Sudan is facing the world’s largest humanitarian crisis as it enters its third year of a devastating civil war. We’ll speak with a Darfurian refugee and with the head of the Norwegian Refugee Council, both about Sudan and also the DRC, the Democratic Republic of Congo. Stay with us.