This week, the Supreme Court issued two unanimous rulings rejecting the Trump administration’s claim that it could deport individuals without due process—even when it knew it had made a mistake. I joined Lawrence O’Donnell to unpack why these cases matter so deeply, not just for Mr. Garcia, who remains imprisoned due to the government’s error, but for all of us. When the government asserts unchecked power, the courts must step in. That’s what happened here.
Stay strong; stay engaged.
–Andrew
TRANSCRIPT
LAWRENCE O’DONNELL:
Leading off our discussion tonight is Andrew Weissmann, former FBI general counsel, former chief of the Criminal Division in the Eastern District of New York. He’s also an MSNBC legal analyst.
Andrew, thank you very much for joining us tonight on this important breaking news case. And I have to say, as you’ve just heard, I really didn’t realize until I saw Justice Sotomayor laying it out in her supplementary finding to the Chief Justice’s ruling today, that what they’re arguing is that they can do this to any one of us.
ANDREW WEISSMANN:
So, you know, a lot of times people accuse the media of hyperbole. There is no hyperbole here. It is everything that you said. And it’s actually more, because in the case of Mr. Garcia, he actually had a court ruling that he could stay here. That had been adjudicated. And so this was in violation of that court order.
So yes, it’s absolutely true that the position is that, if you put the two cases together, the government was arguing they could snatch anyone—anyone in this country—remove them without due process. And even if it’s a mistake, this is the callousness—even where it’s a conceded mistake, that person can rot in jail as a result of the United States making a mistake, and they would have no obligation to lift a finger.
So this is both, as we now know from the Supreme Court in two unanimous losses for the Trump administration, that that is not the law of this country. That these people—and anyone—is entitled to due process, to a hearing. And in this case, if you make the mistake, you have to facilitate, of course, what any decent human being would automatically think to themselves, which is: how do you rectify it?
I can’t get over that this is beyond just the law point, which is: what kind of human being sits in their office, realizes the mistake happened—and remember, Mr. Garcia is still in jail in El Salvador because of our mistake—and the Department of Justice’s position is we’re not lifting a finger unless the court actually requires us to. That is what is so remarkable when you think about what it means to be an American in this country.
LAWRENCE O’DONNELL:
Well, yes. And what we don’t know is if, in the end of this process, the court, backed by the Supreme Court, orders the return of this one person—we don’t know that the Trump government will follow that order. And there will be absolutely nothing—nothing—that any judge in this country can do to force Donald Trump to get that person out of that prison.
ANDREW WEISSMANN:
Well, this is what I would say with respect to that eventuality. This administration wants to say that they are all-powerful and they have so much clout around the world. They can’t get this person back from El Salvador? We’re paying that prison to house these people. They’re going to actually take the position in front of a court that the almighty Trump administration doesn’t have the power to effectuate his return? I mean, that seems pretty laughable.
Let’s wait and see, but that’s going to have to be their position if they don’t want to return him.
LAWRENCE O’DONNELL:
So what do you make of the Chief Justice’s remand—his specific instructions, in effect, to the district court judge?
ANDREW WEISSMANN:
So one of the things that a district court judge can do here, in light of that, is—remember, the district court judge didn’t have a factual hearing. And the district judge can say, “I want to have a factual hearing.” If you are saying, “I can only take these steps and not more,” let’s have a factual hearing. Let’s hear from the people. Let’s hear from Marco Rubio. Let’s hear about why it is that Kristi Noem could go there. What kind of contract do you have with them?
I mean, all of the things that are very public that don’t get into foreign relations—and have a hearing about it. I mean, this is one where it’s so unbelievable that you wouldn’t think that a humane person and an adult in the room wouldn’t say, “Somebody is in jail because of my mistake. How do you fix it?”
But also, I think at this point, they’d really have to lie through their teeth in order to try and convince a judge that they don’t have the power to effectuate his return.
What I’d say is, I’m cautiously optimistic that it would be quite a hard road. I won’t put it past them, but I think it would be very, very hard—not to say unconscionable—to take the position that you couldn’t effectuate his return.
LAWRENCE O’DONNELL:
We’re seeing one of the differences here between the first Trump presidency and the second Trump presidency. In the first Trump presidency, there were people down the chain of command from the president—including frequently in the White House chief of staff’s desk—who would not do what he wanted them to do. They absolutely would not do it.
And here you have apparently straight-down-the-line people who will do exactly what he wants to do. And one of the Trump principles is: you never admit you were wrong. You never admit it was a mistake. In fact, they have fired the Justice Department lawyer who admitted in an earlier proceeding that this was a mistake. You get fired for that.
And so actually acting on the mistake and doing what normal people—decent human beings—do about a mistake is something Donald Trump’s incapable of. And now he has in place an attorney general and everyone down the line who absolutely adhere to that position—that they will never, ever, ever admit a mistake and act to correct it.
ANDREW WEISSMANN:
You know, I couldn’t agree with you more. And there’s a sign of that from the statement that was issued tonight in light of the Supreme Court ruling, which basically says, “Look, the court vindicated the fact that we have absolute… sort of hegemony when it comes to foreign affairs.”
And that just struck me as—nobody wanted to actually just tell Donald Trump, “You lost again. Not zero.” I mean, this is what you’re supposed to do in an adult administration. You’ve got to be candid with everyone who’s there, including your ultimate boss. And that statement was just so unrealistic in light of what it is that the court ruled.
And this is one where we have now seen, in one week, the Supreme Court of the United States—this Supreme Court, the one that granted him presidential immunity—rule 9-0 in two cases on this key issue about the power to deport people, saying, “Uh-uh, that is not how the Constitution works.”
So they join many, many judges that have found this administration violating due process, the Fifth Amendment, the Fourth Amendment, the First Amendment, and then a whole litany of congressional statutes. I mean, it is a remarkable panoply of lawlessness that has been found by the courts here.
And if they continue with this sort of, like, “we’re just going to ignore it and not speak truth to power,” I think you’re going to see more of these kinds of decisions from the Supreme Court that are unanimous. Remember, it’s this Supreme Court ruling in this way in this case. And it tells you—it’s a sign of where we are in terms of this administration.
LAWRENCE O’DONNELL:
Andrew Weissmann, thank you very much for starting off our discussion on this important subject.
ANDREW WEISSMANN:
You’re welcome.
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