The following is a lightly edited transcript of the March 21 episode of the
Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
President Donald Trump is flirting with a major escalation of his authoritarian rule, and it concerns his deportation of dozens of migrants under the 1798 Alien Enemies Act. A lot is happening right now. A federal judge has blocked the deportations, and Trump and his allies are demanding the judge’s impeachment. But this has Republicans privately in a major panic because they know they won’t have the votes to impeach the judge. Meanwhile, evidence is mounting that the Trump administration has violated the judge’s order. And on top of all that, Trump’s attorney general went on Fox News and strongly suggested that the deportations might continue even in defiance of the court. We think the story here is that the decision has effectively been made: They’re going full authoritarian, and it’s only a matter of when, not if. Today, we’re going to try to unravel all of this with Liz Dye, a legal writer who has a good new piece for the Public Notice Substack about just how lawless this particular case has truly gotten. Liz, thanks for coming on.
Liz Dye: Thank you for having me.
Sargent: OK, let’s bring everybody up to speed. A few days ago, Trump deported dozens of Venezuelans under the Alien Enemies Act of 1798, claiming they were gang members. A court blocked this because we’re not actually at war or under invasion by a foreign power, but the planes continued on to El Salvador anyway. The migrants are in prison there, apparently in violation of the judge’s order. Liz, where are we on all this right now? Can you sum it up?
Dye: I can. This is one of the most interesting and upsetting cases that we’ve seen out of the Trump administration this second go-round. It’s really a terrifying confluence of both Trump’s authoritarian impulses and his willingness to take on the courts. Where we are now is that Trump has tried to dictate objective reality by executive fiat. He said that we are under invasion by Venezuela through these Tren de Aragua gang members—whom he refers to as shock troops—which is objectively false. Clearly, we are not. But what he wants, what he’s insisted that he has the power to do is declare it to be so and have this be an unreviewable declaration by the president. And he’s gone into court and basically defied the court’s order, as you said.
What happened was on Saturday, Chief Judge James Boasberg at the federal court in D.C. issued two temporary restraining orders. The first order said, Don’t take these very specific plaintiffs out of the country. There were six men who challenged this, and he said, Don’t take these guys out of the country. And then later, he said, Don’t take anyone subject to this proclamation out of the country into El Salvador using this justification—that was at around 6:30 pm on Saturday. He said, Turn the planes around if you have to and do not let men off and leave them there, if that’s what has to be done; this order is effective immediately. It was memorialized in what’s called a minute order in writing later.
But what happened was at least two planes disembarked in El Salvador and left these men in the custody of El Salvadoran president Nayib Bukele, who then tweeted “Oopsie... Too late” with a cry laughing emoji and apparent defiance of the order. These men are now confined in what’s known as the Terrorism Confinement Center. It’s a grossly inhumane, basically slave labor holding facility where the men are housed in communities. They look like battery hens in the picture. They never go outside. They’re only allowed outside the cells for 30 minutes a day. And then Bukele tweeted a video. It was like a music video; it had a soundtrack of these men getting off the planes and being taken into the facility, having their heads shaved.
So now we’re in a position where they’ve clearly defied the court’s order. And Judge Boasberg is saying, Are you in defiance of the order? Now you have not only the issue of whether the immigrants were allowed to be taken out of the country but also this issue of contempt of court.
Sargent: MAGA rage at this judge right now is tremendous due to everything you’re talking about. Even Trump himself has called for his impeachment. But Politico reports that House Republicans and Speaker Mike Johnson dread this prospect because with their razor-thin majority, they won’t have the votes and they don’t want to sink enormous amounts of time into an impeachment. I don’t think this is something vulnerable House Republicans would want to vote on. They know it would look batshit crazy to swing voters. What do you make of that?
Dye: Look, it’s not going to happen. I think everybody understands that it’s not going to happen. They’re not going to spend a lot of time on impeaching judges, and certainly not this judge. This is a judge who was in the FISA court for a long time. As I said, he’s the chief judge; he was originally appointed by George W. Bush. So it’s nonsense. I think that that’s a red herring, but it’s red meat for the base.
Sargent: Yeah, absolutely. But at the same time, behind all that noise, the administration is clearly debating how far to go in defying the courts. In your piece, you flagged an important exchange in which Attorney General Pam Bondi went on Fox News and talked about this judge. First, Bondi slammed the judge for blocking the deportation flights, claiming he has no authority to intervene in the president’s handling of foreign affairs. I guess she meant that he’s executing the Alien Enemies Act with these deportations. Then this question and answer happened.
Jeanine Pirro (audio voiceover): The administration may continue doing these flights?
Pam Bondi (audio voiceover): Absolutely. These are foreign terrorists. The president has identified them and designated them as such. And we will continue to follow the Alien Enemies Act.
Sargent: So Liz, that’s a little vague from Bondi, but she sure seems to say that it’s a real life possibility that these flights will resume based on the Alien Enemies Act, even if it means defying the judge’s orders. Your thoughts?
Dye: I think that they’re not doing that right this minute because they’re embroiled in this controversy over whether they’re in contempt of court. And they very much hope that the D.C. circuit is going to give them what they want and say this is an unreviewable exercise of executive power. I don’t think that they’re going to rock the boat right this minute.
Sargent: At the same time, it’s pretty clear that if they don’t get what they want from the courts, they’re very seriously considering defying them. That’s what Bondi basically said, right?
Dye: Yeah, I think that they might do it. We are certainly headed for that kind of constitutional crisis. At this point, it would appear to be that they are in defiance of several court orders, not just in this case. What they are doing right this minute is going into court and having the Justice Department lawyers say, No, we really, really are complying. We are very close in this case, though, because of developments this afternoon as we record. As we said, we had this issue of contempt of court, and Judge Boasberg said, Hey, explain yourself. Tell me how you didn’t define my order. And now the administration is talking about invoking the state secrets privilege to not discuss things—which, of course, Marco Rubio has been tweeting about it, President Nayib Bukele has been tweeting about it. To say we have to invoke the state secrets privilege when we just tweeted out a music video of what happened here is strange credulity.
Sargent: But to be clear, they are saying that they’re going to invoke the state secrets privilege precisely in order so that they don’t have to explain before the judge how they “know” that these men are a threat to national security, correct?
Dye: No, that’s not quite right. They’re trying to invoke the state secrets privilege to cover up the fact that they are in open defiance of the court, that when the judge said turn the planes around, they still could have turned the planes around. So he said, Come in and explain to me how you didn’t defy me, and they’ve said, We can’t explain because of national security, which I don’t think that’s going to go over.
Sargent: Right. It certainly doesn’t seem like it. By the way, I want to bring up one point though. We don’t even know how the administration has deemed someone a member of Tren de Aragua, do we?
Dye: Well, that’s exactly right. Trump has arrogated to himself the ability to define reality, so he says, These guys are Tren de Aragua. They’re so dangerous. Pam Bondi goes on television and says, We deported terrorists. But there’s no evidence that that’s the case. In fact, there’s a lot of evidence that it is not the case.
Sargent: In fact, one big development that just happened in this case has been that the attorney for one of the Venezuelan men that was deported just revealed in court findings some new details about this guy. His name is Jerce Reyes Barrios, and he came here legally through the CBP One app and applied for asylum. He’s accused of being a gang member based on him supposedly having a gang-affiliated tattoo and him supposedly making gang signs with his hands. Of course, that didn’t turn out to be exactly right. The lawyer filed an affidavit setting the record straight. Turns out, it was a soccer tattoo. Can you give us this rundown?
Dye: Yes, I’m actually looking at that affidavit right now. What he has is a tattoo of the Real Madrid logo; he is a soccer coach. What he has is a crown over a circle and a soccer ball with the rosary and it says “Dios.” And the affidavit says DHS alleges that this tattoo is proof of gang membership. In reality, he chose this tattoo because it is similar to the logo for his favorite soccer team, Real Madrid. So clearly, that’s not a gang tattoo. And the picture is of him throwing what we would call the “hang ten” sign; when we were kids, that’s what they called it. It probably has a cooler name now, but it’s obviously not a gang symbol. It looks like the Texas Longhorns symbol. It’s preposterous on its face. This is not somebody who had any reason for being a terrorist.
And it’s very funny because one of the affidavits submitted by Department of Homeland Security in this case says, Well, some of these guys have no criminal record but, in fact, that’s evidence that they’re even more dangerous because they’re so good at hiding their crimes and that’s how you know they’re terrorists, which is so circular and tautological and not persuasive.
Sargent: I just want to be clear: There is nothing resembling due process here for these men, is there?
Dye: No, and that’s the point. What Trump is doing here is asserting emergency powers, saying there is no due process, I am all the process. And he’s trying to get around it. We’ve seen him do this in the first administration when he said it was an emergency and stole money that was supposed to be to construct military housing and used it for the border wall. That’s what he’s doing here. He wants to say everything is an emergency and thus everything that I say goes. I am going to seize an emergency power to enact tariffs or deport harmless refugees or whatever.
Sargent: I want to get another aspect of how crazy this is. The Trump administration is paying El Salvador’s authoritarian government $6 million reportedly to hold these migrants that they’ve deported. I’m wondering, Does the administration have the legal authority to pay this money to a foreign government to jail people abroad, some of whom were lawfully in the U.S. but removed without due process under U.S. law? Is there the authority to do that?
Dye: I am not sure that there is any authority to do that, but I am sure that this Congress will not hold him to account while Republicans control the House. They’ve made it very clear that they’re not going to do anything about the wholesale usurpation of the congressional spending power under the Constitution.
Sargent: Right. Is there a way to challenge it legally?
Dye: I think there might be a way to challenge it legally, but that would be very difficult. Who has standing to challenge the illegal expenditure of congressionally appropriated funds? Well, that would be Congress. I think the challenge here is going to come from these individual men. They are all men; they’re being sent to a men’s prison. I think that the challenge here will be much more effective coming from the individuals affected by it.
Sargent: Seems likely. Going forward, where do you see this headed? What’s going to happen under this judge? This judge has been extremely harsh on what he sees as major violations. What happens before this court, and what happens after that?
Dye: OK. Where we are is we’re at the trial court. There is a temporary restraining order, which will probably become a preliminary injunction, which will put this policy on hold until it’s adjudicated in the long term. That will be immediately appealed to the D.C. Circuit, which could reverse it or could let it stay in effect. That would continue to put this policy on hold. And after that, we’ll go to the Supreme Court.
Now, I should note that the president has said, I don’t have to do it through the Emergency Act. I can do it, I can deport these men pursuant to my own Article 2 inherent powers. That’s going to be a serious conflict if Trump says, as he said, I have an Article 2, and it’s very powerful, if he assumes dictatorial powers and says, I’m complying with the order, I’m just doing it based on some other power.
Sargent: Right. In other words, he would essentially be saying, I’m not actually relying on statutes such as the Alien Enemies Act, I have the inherent power to do this in wartime.
Dye: Right. Or I have the inherent power to do this in any time because I’m the president and the president gets to control foreign policy. We’ve seen him take that position in all the rest of this litigation. If a judge says, You can’t cancel these USAID contracts in bulk, he says, No, I didn’t cancel all of them pursuant to this executive order. I canceled them one by one. I just happened to do 2,000 this morning on an individualized basis.
Sargent: Right. So what happens, though, when this goes before the Supreme Court? What does the Supreme Court actually end up deciding, one way or the other? What’s at issue?
Dye: Well, the Supreme Court is going to have to deal with precedents that are highly deferential to the president’s determination that there is an emergency. Here, they’re going to have to decide whether he gets to decide a reality by executive fiat. We are patently not at war. We are certainly not at war with Tren de Aragua, a handful of violent gang members, of course. And the Supreme Court will have to decide whether, on an individualized basis, any of these men get to make their claim that they are not gang members. I think it’s a deeply concerning precedent, and I think that Chief Justice Roberts understands how freighted it is on all kinds of levels.
Sargent: So what does it look like if the Supreme Court actually does rule against Trump here? What do they rule, and then what?
Dye: If they say that you cannot use the Alien Enemies Act to deport when we’re not in a wartime posture, it will be a significant curb to Trump’s powers because Trump has said, I’m going to pull the fire alarm basically and take advantage of this emergency to do things that I couldn’t do by statute or that are illegal or that I can’t get through Congress. So he would not have any legal basis for deporting these men to Salvadoran prisons. And I think what you’re asking me is: What if he does it anyway? Are we in the Andrew Jackson [stage of] “the court has made its ruling, let them enforce it”? That’s a serious constitutional crisis. I don’t think we’re there yet, but I don’t think we’re that far from it.
Sargent: It sure doesn’t seem like we’re that far from it. Folks, make sure to check out Liz Dye’s podcast at LawandChaosPod.com. Liz, thanks so much for coming on with us.
Dye: Thanks for having me.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.