Bulwark Takes - Trump Defies SCOTUS Order; Judge Furious

Episode Date: April 11, 2025

Sam Stein and Andrew Egger discuss the breaking news on Trump's legal team defying the SCOTUS ruling to bring Kilmar Abrego Garcia, who was wrongly deported to El Salvador, back to the United States.

Hey guys, it's me, Sam Stein, Managing Editor at The Bulwark, here in the midst of a constitutional crisis with Andrew Egger. It's Friday, so I guess every Friday we have some freakout session, but this one is legit. We are coming to you reacting to a court hearing in Maryland over this high-profile case, Kilmar Brego Garcia, the Maryland man who was wrongfully sent to El Salvador. Basic just last night, Supreme Court said you need to facilitate his return to the United States, or at least update the courts about the steps you are taking to do so. And there was some haggling over what the definition of, what was it, facilitate versus, I forget the other word.

Effectuate. Effectuate, yes. It's fucking lawyers. But that's versus, I forget the other word. Effectuate. Effectuate, yes. It's fucking lawyers. But that's where everyone read it the same way. They had to figure out, they had to at least detail what they're going to do to get this guy back. And then the Trump lawyers came in today and they said, no, we're not going to talk about it and we don't have enough time to do it. And they basically are defying the court order.

I don't think there's, they'll legally say probably, we got some wiggle room here, but it's defiance. And we're at the place where we all thought we'd end up eventually, but we were all very scared about ending up here. So yeah, not good. We're going to get into it. Andrew, am I reading it wrong? I know you're a little even hot, more hot about this than I am. So I think I know what you're going to say. It seems crazy to me. There's absolutely no question that what's going on right now is crazy. I guess I might quibble with the idea that they are actively defying the order right now. It's like what

they are saying is, and it's, you know, it seems totally full of shit. But what they're saying is we do not have time as the government to pull together all of the weighty national security considerations that go into this case in order to be able to give the judge next steps on the very accelerated timetable she has demanded to be able to like basically hatch a plan. That was going into this hearing. I get that. Let me just pause basically hatch a plan. That was going into this hearing. I get that. Let me just pause you for a second. Because, yes, but, the government lawyers wouldn't even say what Abrego Garcia's location and status is, okay? Yes.

And that was a point that the judge made in the hearing. She essentially was saying, look, I know you guys are saying your clients haven't yet advised you on what the next steps are, your clients being the Trump administration. But I'm not asking you right now for the next steps. I'm asking you for some extremely basic factual questions about the guy who the Supreme Court has pretty unilaterally said needs to have due process in our courts. And yes, and yes, you're right.

Like that, their response to that was we cannot give you any information that has not been provided to us, to which the judge essentially said, well, why isn't your client telling you the stuff that you need to come before my court? So I think the distinction here is, the distinction here is they're saying, well, this is not enough time. Like the Supreme Court decision happened last night. You're giving us a few hours. This is an incredibly delicate process. Like we have to consider national security implications. I'm not quite sure what those are. We can get into that later. And then the judge says, well, okay, but at least detail the steps you've taken to this

point to locate the man and to facilitate or expedite or whatever word you want to say his return, which has been demanded by the Supreme Court decision. So there's a difference between taking the actions, at least detailing the steps you will take, and they wouldn't do the latter. And the fact that they refuse to do the latter raises some serious questions about both compliance with judicial decrees and whether they ever will, in fact, bring this man back, which, frankly, I think is very much up in the air at this point. It definitely seems like they're laying the groundwork to make a real stand here, which is just, I mean, it's just mind-boggling. I mean, and yes, you're right.

I mean, this is another thing that the judge really drilled down on. She said, I had a valid order to you guys to start figuring out how to get this guy back days ago. You know, like, like the Supreme Court eventually stayed at that order, but it was an effect for days. You had days during which you were supposed to be doing that. Can you name a single step that you guys took, you being the administration, during that period in order to at least get the ball rolling on this stuff? And they, they just utterly stonewalled her on, on, on every single question. One exchange that Kyle Cheney, good bud of mine at Politico, who's been on top of this more than any reporter, one exchange he highlights is the judge says, all right, give me an update

on Abrego Garcia's current physical location and custodial status. Government lawyer says, we're still internally reviewing the Supreme Court's decision and vetting what we can say to the court. Judge says, what do you mean? It's just a direct question. What is his status? And they went back and forth. They did this, and the judge obviously grew frustrated.

The government lawyers basically are of the place where they're saying, we can't share information yet because we believe that this is of such national security implications and considerations that it falls outside the purview of the court. And they're hanging it all on one line in the Supreme Court decision that says, you know, foreign affairs are the purview of the executive and so on and so forth. I will say the judge has given them more time. Judges said, OK, I want daily updates.

The government has asked until Tuesday, which is four days from now, to get them some sort of information. And even then they said they might have to evoke state secrets. So we're at a real moment here where it's hard to see how this resolves, frankly. Yeah, yeah. And for what it's worth, the judge basically denied the government the opportunity to push till Tuesday. She says she wants daily updates on all this stuff. But what seems significant

about the Tuesday deadline in particular is that the government was trying to push the date of next check-in past Monday when President Bekele is coming to the White House to meet with Donald Trump, to meet with President Trump, right? And that's the truly insane part of all this. We're talking about how there are these national security implications that are coming into play here. And that is, I guess, in some strict technical sense, true because it involves

multi-nation diplomacy at this point. but this is the thing here is the way that like the lawlessness follows on the lawlessness right because this is a situation that donald trump has deliberately set up right where he's treating el salvador and bucheli in particular as sort of his client jailers for these people that he has held obviously everybody knows no well you said nobody would dispute that sorry you said a key word there. Nobody would dispute that. Sorry? You said a key word there, which is client. We're paying. Yes, yes. No, there's not a single person on earth who would dispute that Bukele would hand this guy back if Donald Trump actually wanted him back.

My point is that we are paying. We are paying for the incarceration of this man, which makes this a contract, which is functionally different than national security, right? We are actually entering into contract for the incarceration of this man, which means that we, I think legally and technically surely do have, uh, or the right to have a status update on this person. Uh, so the idea that they wouldn't know where he is or don't have any responsibility over it seems totally false to me. Uh, and then you mentioned the other thing, which is that McAuley's coming on Monday. Like if they really wanted this to happen,

if they knew where this man was, and I don't know if they know where this man is, that could be something we need to consider. Maybe they've lost him. Think about that. But if they wanted him back, they would get him on the plane. They could.

And they bring him back. But they don't want him back. Well, and that's the point. Like just to drill down, there's a reason why the seeming ridiculous legalese of facilitate versus effectuate matters here. Because facilitate, essentially what they're saying is, a court can't actually command the Trump White House to go out and make another country implement some policy. You couldn't put in a court order to say the government's going to make China drop all its

tariffs on the US, to take an extreme example. But because of the specifics of this situation, everybody knows, everybody knows that Bokele would give this guy back if asked. The weird thing is that what the court is now ordering the Trump administration to do is to strain every nerve to get him back. But Bokele knows that Trump doesn't want him back. And so that's why, I mean, he has been out there publicly mocking this Judge Bacalli has, publicly mocking this judge's orders, you know, as they've actively been going into effect with, by the way, various constellation people in the MAGA movement publicly telling Bacalli, don't listen to the judge, you know, defy the order because Trump has been commanded to try, but he doesn't want, so like, so where does that leave you? I mean, like, is Trump gonna, gonna get up on Monday and say, Hey, you know, this judge says we really want this guy back. Yeah. Give him back. And McKellie's going to say, ah, you're like, what's actually going to happen? Nobody knows. And to what end? But to what end, right? It's like, I think we all sort of predicted that they

would at some point defy a court order. But what is on this one? Why this one? Right. Like, is it so important to them that they have the right to deport anyone in the middle of the night and say, well, they're overseas matter of national security. We can't do anything about it. Is that the one where they're going to, you know, show defiance? I guess once you show defiance, you can show defiance on all of them and the other thing that i would say is um it it's interesting that they did this uh right after the supreme

court i i think there's going to be a lot of stuff in front of the supreme court obviously there's already a lot of stuff in front of the supreme court in a normal world if you are justice on the supreme court and you see the president defying your your order you get pissed. And that might factor into the considerations they make when you issue future opinions. I have no faith that Clarence Thomas is going to change his colors over this stuff, but I do think there's some politics that needs to be considered here about how they're handling this. Maybe they don't give a fuck, honestly. They probably don't. They probably don't give a fuck. Honestly, they probably don't. They probably don't. But I think some people, I think some people in the administration or in the Justice Department

are wondering, is it worth burning our Capitol with the court on this? Yeah, I think it's a combination of a couple things. Because one, in general, this fight over the Alien Enemies Act and the deportees to the El Salvador prison, all that stuff, that was, in general, a fight the administration really wanted to have. I think they saw that as very fertile ground for fighting the court. The problem is that they rolled it out so kind of ham-fistedly and swept up people who shouldn't have been swept up in it and all of this stuff. I mean, they had to acknowledge in court that they mistakenly sent this guy. I mean, so stupid. Fired the lawyer who made those admissions in court.

I mean, like it's very clear that that they're in it. Like this was their plan going in. But they don't just have a plan. They also have, you know, this this complete unwillingness to to pull back on anything, this complete unwillingness to, you know, admit guilt or retreat or because as soon as you start doing that on one thing, the whole the whole kind of like the momentum of the Trump assault on on the courts and the rule of law and all of this stuff becomes blunted a little bit because you've drawn blood. The law has drawn blood against the administration. So you could make the argument that it is it is as though even though this guy is certainly not

the most advantageous fight for the administration to be having, obviously on the merits since he's innocent and a judge ordered that he couldn't be deported to El Salvador. They're stuck having to provoke the crisis based on this insanely tenuous ground just because of their own kind of blunders in getting here. But that doesn't mean they're not serious about fighting on this ground as we saw today. It's really, it's really worrisome. It's very serious. It's extremely worrisome. It's very serious. It's extremely worrisome. It's a nightmare scenario for a lot of people out there, and certainly the lawyers who've been warning

that there will be a defiance of the court. It looks like we have it. We'll keep tabs of it. Scary stuff. Andrew, thanks for breaking this down with us. Thank you guys for watching.