Mr. Abrego Garcia

The New Podcast Episode Of Main Justice – BTH, Vol 4.2.e

This week, Mary and I focus on a case that’s both heartbreaking and legally shocking: the mistaken removal of Kilmar Abrego Garcia to El Salvador. The Supreme Court ruled that the Trump administration must comply with a lower court order to facilitate his release—but the government is slow-walking the process, avoiding responsibility for denying Mr. Abrego Garcia his basic due process rights. They will not even say if they asked El Salvador to return him.

In this episode, we walk through this case, and two new immigration habeas petitions that have resulted in temporary restraining orders against the Trump Administration. We also discuss a major civil rights setback in Alabama and further disturbing instances of retribution from Donald Trump—this time targeting the Associated Press, Harvard, and individuals he sees as adversaries.

Relatedly, I also joined Jen Rubin on The Contrarian to break down what’s at stake legally in the Mr. Abrego Garcia case. We discussed the Oval Office meeting between Trump and El Salvador’s president—where no one even asked for Mr. Abrego Garcia’s return. The administration continues to thwart court orders, distort the facts and law, and vilify Mr. Garcia to avoid accountability. The courts have tools to respond—including contempt rulings and civil penalties—but at its core, this is about whether we’re still a country that honors the rule of law and basic decency.

–Andrew

P.S. A transcript for Main Justice is available through Apple Podcast.

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THE CONTRARIAN DISCUSSION:

SCOTUS Ruling Affirms Immigrant Due Process Rights

CONTRARIAN DISCUSSION TRANSCRIPT

Jen Rubin: Hi, this is Jen Rubin, Editor-in-Chief of The Contrarian. I’m so happy to have back with us Andrew Weissmann. Andrew, welcome back.

Andrew Weissmann: Thank you, Jen. I wish we were discussing something less dire, but I understand why this conversation is so important.

Jen: Let’s jump in. That Oval Office meeting between Trump and the president of El Salvador—in my view—outdid the Trump-Zelensky meeting. You had a wannabe dictator seated next to a real one, essentially playing games with a man’s life. The court had already indicated what needed to happen: facilitate the return of Kilmar Abrego Garcia, who was mistakenly deported and is now imprisoned in a horrific place. Instead, these two leaders were laughing, golfing, and doing everything except following the law.

Andrew: Exactly. Legally, this is a very serious matter. There’s a court appearance happening in the District Court, which now has its marching orders from the Supreme Court, as does the government. The court has demanded answers—what is the government doing to comply? The Supreme Court made two things clear: first, the government must facilitate Mr. Abrego Garcia’s return to the U.S.; second, he must be given the due process he would have received had he not been unlawfully removed. They’re also required to file daily reports under the district court’s order.

Jen: Right, and what’s especially galling is that at no point during that Oval Office meeting did anyone even ask for Mr. Abrego Garcia’s return. It was an opportunity squandered. This wasn’t an adversarial meeting—it was two leaders getting along just fine, one asking the other to build more prisons for Americans. The notion that we lack the leverage or legal tools to request his return is absurd.

Andrew: Absolutely. This is why we have contempt of court—because what’s happening is both lawless and cruel. Even worse, everyone else is falling in line. The Attorney General was there and knows the Supreme Court’s ruling, yet we hear people like Stephen Miller falsely claim the Court ruled in Trump’s favor. In reality, it was unanimous against him.

Jen: And the president of El Salvador even admitted they’d have to “smuggle” Mr. Abrego Garcia back to the U.S.—which clearly implies the problem lies with the United States, not El Salvador. It raises the question: is the administration saying the courts can’t tell them what to do because it’s foreign policy? Or are they saying they’re too weak to make it happen? It can’t be both.

Andrew: Exactly. And this isn’t a hypothetical case like trying to retrieve someone from Iran. The president of El Salvador was just in the Oval Office. If the U.S. had actually requested his return and been denied, that would be one thing. But they haven’t even asked. This is not a legal dilemma—it’s a factual one. And the facts show the government is not making a good-faith effort. If El Salvador is saying, “we can release him but can’t return him without U.S. cooperation,” then the burden is clearly on us. Anything else is just political theater.

Jen: So what can the judge do?

Andrew: Quite a lot, actually. The plaintiffs have requested documentation: written agreements, payment schedules, any understanding between the countries. The judge can call a hearing. If witnesses don’t show up, she can hold them in contempt. She can also draw adverse inferences—meaning, if the government refuses to cooperate, the court can assume it’s because the facts would be damaging. Judge Beryl Howell used this strategy in the Rudy Giuliani case, and it worked. If necessary, the court can impose civil contempt penalties, including fines or even jail time, and refer lawyers for disciplinary action.

Jen: There’s even precedent for appointing a special prosecutor in cases of criminal contempt, right?

Andrew: Correct. Judge Lewis Kaplan did just that. The court has inherent authority to enforce its rulings. This isn’t “tough love”—it’s just toughness. And it may be exactly what’s needed right now.

Jen Rubin: Chief Justice Roberts was notably deferential to Trump in his language about “facilitating” a return. Maybe he didn’t anticipate just how far Trump would stretch that deference. But now, we’re facing a situation where a judge is being openly defied—on basic tasks like submitting the daily reports required by the court. Do you think it’s going to take a contempt ruling, one that gets appealed all the way back to the Supreme Court, just to establish whether the president of the United States must comply with court orders?

Andrew Weissmann: Yes, we’re at that point. And look, I don’t know what was in Chief Justice Roberts’s head, but I try to assume good faith when I can. Maybe he thought the Department of Justice wouldn’t act in blatant contempt, and that the Supreme Court’s signal was clear enough. In any other administration—Republican or Democrat—it would have been. I served under both. Bill Barr, who signed my DOJ certificate, is on my wall. And even under him, it’s unimaginable that DOJ would defy a court like this. If you disagreed with a ruling, you might file a motion to reconsider—but you wouldn’t simply ignore it. So here we are: once, shame on you; twice, shame on us. And the Court will likely have to weigh in again, because we’re not seeing the behavior of a normal administration.

Andrew (cont.): Instead, we’re seeing something much darker. Stephen Miller has completely misrepresented the Court’s ruling. DHS has issued press releases trying to rebrand Mr. Abrego Garcia as a terrorist and an MS-13 member—claims the Fourth Circuit explicitly said had no evidence. And even if he were, it wouldn’t change the legal obligation: everyone is entitled to due process. That’s the foundation of the rule of law—especially for the unpopular or the accused. If the government believes he’s dangerous, they have the means to prove it in court. What they’re doing instead is political theater, as Nicole Wallace often says.

Jen: And it’s dangerous theater. Even someone facing 34 criminal charges in New York got extensive due process—more than most people would ever receive. That’s the point. Due process isn’t just for the innocent or the likable—it’s for everyone. And this administration is openly acting in contempt of court. Whether it’s ignoring the order to return Mr. Abrego Garcia, or refusing to allow AP journalists back into the Oval Office, these are violations of judicial authority. Like it or not, admit it or not, we’re at a crossroads. Either we remain a nation of laws—or we let Trump and his circle take us down a path where anyone can be discarded, deported, and denied their rights. Thank you, Andrew, for your clarity, your knowledge, and your humor—it helps keep us from spiraling into despair.

Andrew: Thank you. Looking forward to being back again soon.