The Ezra Klein Show - The Emergency Is Here

Episode Date: April 17, 2025

The president of the United States is disappearing people to a Salvadoran prison for terrorists: a prison built for disappearance, a prison where there is no education or remediation or recreation, a prison where the only way out, according to El Salvador’s justice minister, is in a coffin.The president says he wants to send “homegrown” Americans there next.This is the emergency. Like it or not, it’s here.Asha Rangappa is a former F.B.I. special agent and now an assistant dean and senior lecturer at the Yale Jackson School of Global Affairs, as well as a member of the board of editors for Just Security and the author of The Freedom Academy on Substack.Mentioned:“Abrego Garcia and MS-13: What Do We Know?” by Roger ParloffBook Recommendations:The Burning by Tim MadiganBreaking Twitter by Ben MezrichErasing History by Jason StanleyThoughts? Guest suggestions? Email us at [e-mail] can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Elias Isquith. Fact-checking by Rollin Hu, Jack McCordick, Kristin Lin and Kate Sinclair. Mixing by Isaac Jones and Aman Sahota. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Annie Galvin, Marina King and Jan Kobal. Original music by Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. And special thanks to Aaron Reichlin-Melnick. Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.

From New York Times opinion, this is the Ezra Klein show. The emergency is here. The crisis is now. It's not six months away. It's not another Supreme Court ruling from happening. It is happening now. Maybe not to you, not yet, but to others, to real people whose names we know, whose stories we know. The President of the United States is disappearing people to an El Salvadoran prison for terrorists.

A prison known by its initial CICOT. A prison built for disappearance. A prison where there is no education or remediation or recreation, because it is a prison that does not intend to release its inhabitants back out into the world. It is a prison where the only way out, in the words of El Salvador's Justice Minister, is in a coffin. On Monday, President Trump said in the Oval Office, in front of the eye of the cameras,

sitting next to El Salvador's president, that he would like to do this to US citizens as well. If it's a homegrown criminal, I have no problem. Now, we're studying the laws right now. Pam is studying. If we can do that, that's good. And I'm talking about violent people. I'm talking about really bad people, really bad people. Every bit as bad as the ones coming in. He told El Salvador's president, President Bukele, that he would need to build five more of these prisons because America has so many people Trump wants to send to them. Do you think there's a special category of person? They're as bad as anybody that comes in. more of these prisons because America has so many people Trump wants to send to them.

Why do we need El Salvador's prisons? We have prisons here. But for the Trump administration, El Salvador's prisons are the answer to the problem of American law. The Trump administration holds a view that anyone they send to El Salvador is beyond the reach of American law. They've been disappeared not just from our country, but from our system. And from any protection or process that our system affords, in our prisons, prisoners can be reached by our lawyers, by our courts, by our mercy. In El Salvador, they cannot. Names, stories. Let me tell you one of their names, one of their stories, as best we know it.

Kilmar Armando Abrego-Garcia is from El Salvador. His mother, Cecilia, ran a papucería in San Salvador. A local gang, Barrio 18, began extorting the business, demanding monthly and then weekly payments. If the family didn't pay, Barrio 18 threatened to murder Kilmar's brother, Cesar, or rape their sisters. Eventually, Barrio 18 demanded Cesar join their gang, at which point the family sent Cesar to America.

Then Barrio 18 demanded the same of Kilmar, and Kilmar, at age 16, was sent to America too. This was around 2011. This is what we mean when we say he entered illegally. A 16-year-old fleeing the only home he's ever known, afraid for his life. Obrego Garcia's life here just seems to have been a life, not an easy one. He lived in Maryland, he worked in construction. He met a woman, her name is Jennifer, a US citizen.

She had two children from a past relationship, one is epilepsy, the other autism. In 2019, they had a child together. That child, who's now five, is deaf in one year and also has autism. Jennifer was pregnant in 2019. On the day, Abrego Garcia dropped one kid off at school, dropped the other off with a babysitter and drove to Home Depot to try to find construction work.

He was arrested for loitering outside Home Depot, asked if he was a gang member, he said no, and he was put into ICE detention. The story gets stranger from here. About four hours after he's picked up, and that appears to be the first contact he's ever had with local police, a detective produces an allegation, citing a confidential informant that Abrego Garcia is actually a gang member. Abrego Garcia has no criminal record, not one here, not one in El Salvador. He was accused strangely of being part of a gang

that operates in New York, a state that he has never lived in. Whoever produced the allegation, they were never cross-examined. And when Abrego Garcia's attorney tried to get more information, he was told that the detective behind the accusation had been suspended, and the officers

in the gang unit would not speak to him. Abrego Garcia's partner, Jennifer, said she was, quote, shocked when the government said he should stay detained because Kilmar is an MS-13 gang member. Kilmar is not and has never been a gang member. I'm certain of that. In June of 2019, while Abrego Garcia was still detained, he and Jennifer got married, exchanging rings from an officer separated by a pane of glass. Later that year, a judge ruled that Obrego Garcia could not be deported back to El Salvador

because he might be murdered by Barrio 18, that his fear was credible. Obrego Garcia was then set free. Each year since then, he has checked in with immigration authorities. He's been employed as a sheet metal apprentice. He's a member of the local union. He was studying for a vocational license at University of Maryland.

His last check in with immigration authorities was on January 2nd. No incident. There is no evidence anywhere offered by anyone that a suggestion to Brrega Garcia poses a threat to anyone in this country. But on March 12th, Brega Garcia was pulled over while driving, his five-year-old in the backseat.

He was told his immigration status had changed. On March 15th, in defiance of the 2019 court ruling, Brega Garcia was flown to El Salvador and imprisoned at Seacat as a terrorist. The Trump administration in its own legal filings has said this was a quote, administrative error. They themselves, their administration at least said they should not have done this. It was a mistake. That they should not have done this is not just my opinion.

I want to read to you from the editorial of the National Review, probably the country's leading conservative magazine. Here is the first sentence. The court fight over Kilmar Armando Abrego-Gracia is a most unusual one in that no one denies that the government violated the law in deporting him. This case has made its way to the Supreme Court, and the Supreme Court ordered And the Supreme Court ordered that the administration, quote, facilitate a break of Garcia's release from custody in El Salvador and ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. I feel I don't have the proper words to describe this next part. How grotesque it is, how dangerous it is.

Do you plan to ask the president to help return the man who your administration says was mistakenly deported? The man who was mistakenly deported to El Salvador? Well let me ask Pam, would you answer that question? Sure, president. First. The Trump administration has no argument that they did not deport Obregó-Gracia unlawfully. What they deny is that they have the authority to bring

him back. Right now it was a paperwork, it was additional paperwork had needed to be done. That's up to El Salvador if they want to return him. That is the president of El Salvador. Your questions about it per the court can only be directed to him. That authority, they say, lies with President Bukele. Can President Bukele weigh in on this? Do you plan to return him? And standing next to Donald Trump, President Bukele says he can also not send him back. Of course I'm not going to do it.

It's like, I mean, the question is preposterous. How can I smuggle a terrorist into the United States? I don't have the power to return him to the United States. Again, I want to quote the national review. You don't have to take it from me, which writes, This is a ridiculous pretense because a president of El Salvador, Naib Bukele, will clearly do anything we ask. If the deputy assistant secretary of state for Latin America requested that he ride a

unicycle wrapped in an American flag in San Salvador's central square, Bukele would probably ask whether it should be a Betsy Ross flag or the traditional stars and stripes. If nothing else, if nothing else, Trump could slap those tariffs he is so fond of on El Salvador. But we are not angry at Bukele here. We the government of America are paying Bukele to imprison Abrego Garcia and others. Bukele is not doing this against Donald Trump's wishes. He is Donald Trump's subcontractor.

That Oval Office meeting between Trump and Bukele was a moment when the mask fully slipped off. I thought Jon Stewart pinpointed part of its horror well. Can I honestly tell you, this is even, the thing that's, like they're enjoying this. It came through so clearly how much they were loving it, each of them declaring that there was nothing they could do for Brega Garcia, no way to allow him his day in court, no way to allow the American legal system to do its job and assess whether he is a danger, no

way to follow the clear order of the Supreme Court. And from their perspective, maybe they're right. Because here's a scary thing that I think sits at least partially beneath their calculus. Politically they cannot let Abrego Garcia out, nor any of the other people they sent to CICOT without due process. Because what if he was released? What if he returned to the United States? What if he could tell his own

story? What if, as seems quite likely, he's been brutalized and tortured by Trump's Salvadoran henchmen? Well, he can't be allowed to tell the American people that. To the Trump administration, Abrego Garcia is not a mistake. He's a liability, and he's a test. A test of their power to do this to anyone. A test of whether the loophole they believe they have found. A loophole where if they can just get you on a plane, then they can hustle you beyond our laws and leave you in the grips of the kind of gulags they wish that they had here. They're not ashamed of this.

They're not denying their desire to do it to more people. This is how dictatorships work. Trump has always been clear about who he is and the kind of power he wants. And now he's using that power. And everyone around him is defending his right to wield that power. Marco Rubio. I can tell you this, Mr. President, no, the foreign policy of the United States is conducted by the president of the United States, not by a court.

And no court in the United States has a right to conduct the foreign policy of the United States. It's that simple. End of story. Attorney General Pam Bondi. This is international matters, foreign affairs. If they wanted to return him, we would facilitate it, meaning provide a plane. Deputy Chief of Staff Stephen Miller.

But President Trump, his policy is foreign terrorists that are here illegally get expelled from the country, which by the way is a 90-10 issue. Secretary of Homeland Security Kristi Noem. Mr. President, you wanted people to know that there was consequences if you break our laws and harm our people and endanger families. And this is a clear consequence for the worst of the worst that we have somewhere to put them. Thank you very much. If President Donald Trump decides that you are to rot in a foreign prison, then that

is his right. And you, you have no rights. We are not even 100 days into this administration, and we are already faced with this level of horror. And I can feel the desire to look away from it, even in May. What all this demands is too inconvenient, too disruptive. But Trump has said it all plainly and publicly. He intends to send those he hates to foreign prisons beyond the reach of US law.

He does not care. He will not even seek to discover if those he is sending into these foreign hells are guilty of what he claims, because this is not about their guilt. It is about his power. And if he is capable of that, if he wants that, then what else is he capable of? What else does he want? And if the people who serve him are willing to give wants that, then what else is he capable of? What else does he want? And if the people who serve him are willing to give him that, to defend his right to do that, what else will they give him? What else will they defend? This is the emergency.

Like it or not, it's here. My guest today is Asha Rangappa. Rangappa is a former FBI special agent and now the assistant dean at the Yale University's Jackson School of Global Affairs. She's also the author of the substack, The Freedom Academy. Asha Rangappa, welcome to the show. Thanks for having me, Asha. So I want to begin in the somewhat dark place that we're in. It looks to me that the administration is pretty directly disobeying Supreme Court orders in at least the Kilmar Abrego Garcia case. What recourse is available to the courts or to the system?

Well, I think this is why a lot of analysts are now saying we're officially in a constitutional crisis. So the normal recourse here would be to hold the administration in contempt. They can fine specific officials. If it were you and me and we were held in contempt, I mean, the ultimate penalty might be that we could be jailed. But I doubt that that's something that would ultimately happen to anyone in this administration. But that would be within the power of the court as well. But Trump could just pardon you.

And ultimately, the executive branch has the enforcement power. Trump maintains control over all of the enforcement agencies, including the Marshall service. And so even if this goes all the way back up to the Supreme Court, and you then have this face-off between the judiciary and the executive branch, it's not clear to me exactly what can be done to enforce an order ultimately, which kind of leaves the Trump administration with a Trump card, no pun intended. Well, the Trump administration's, I don't know if the right word for it is interpretation

of the order. Certainly their spin of the order, if you're listening to Stephen Miller, is this was a huge victory for us because what the Supreme Court said is nobody can make us. That we maybe have to facilitate, but don't have to effectuate. There's a lot of hair splitting in that language going on. But their view is that the Supreme Court has created or has validated a fairly large zone of authority, which is foreign policy for the executive for Donald Trump. And then if you read that order correctly, what the Supreme Court really said is that what they

will do about it is nothing. Well, first, Stephen Miller's interpretation of what the Supreme Court said is not entirely accurate. The Supreme Court did mention the deference that's given to the executive branch in foreign affairs, but it did uphold the lower court's order that the administration facilitate the return. They can't tell him what to do in terms of the negotiations and the dealings with the foreign power, but they need to do everything in their power to make it easier for this person to return. But I think to zoom out in their power to make it easier for this person to return. But I think to zoom out, this is by design.

In all of these contexts, whether it's in these deportations, whether it's in the visa revocations, whether it's even in the tariff context, you hear these buzzwords, foreign affairs, terrorism, national security, national emergency. All of these are arenas that are core executive branch authorities that are given great deference by the courts. And so when they frame all of these issues in those terms, they're already carving out a huge swath of authority that they can essentially exercise without much oversight. And when you layer the court's absolute immunity ruling from last year on top of that, which

again protects these core functions from any kind of liability, there is a large arena in which they can act with impunity if they can move fast enough as they are in this case. So when the president says it is about national security, that means it's not illegal to twist the old Nixon line. I wouldn't say that it's not illegal. It means that he's going to be given a lot of deference. He'll be given a lot of deference in terms of factual determinations, for example, factual determinations that we're in a national emergency, perhaps his factual determinations

that we're being invaded, or that somebody's actions are intruding on his foreign policy prerogatives. All of these things are given great latitude. And this is discretion that's been afforded to the executive branch in all of these contexts so far with delegated authority from Congress. So these are actually Congress's authorities that it has given to the executive branch with the understanding that there might be actual quick decision making needed by the executive branch in certain circumstances to exercise this kind of authority. It presumes that somebody is going to be acting in the nation's interests and in good faith. So before we move to Congress, I want to just make sure I understand what you were saying.

And that the level of alarm rising in me as you say it is merited. Which is what I hear you saying is that there is no check from the courts on this. They have told the administration to facilitate the return of Abrego Garcia and to allow him the due process as if the original administrative error, quote unquote, had not been made. The Trump administration has been perfectly clear that they will not do that. You do not seem to me to expect there is going to be some secondary round here from the Supreme Court that in some way forces them to do a thing that I don't think they want to do. I don't know that in this specific case, they can force him to do anything.

If he says, look, I talked to President Bukele, and he said he can't return them, or he won't return them, and shrugs his shoulders, which he basically did in this press conference, then there's not much that the court can do in that situation. What's interesting to me, Ezra,

is that this doesn't really help him in the big picture in terms of the policy. It's in his legal interests to bring Abrigo Garcia back and say, look, this is not a big deal. We can correct errors. So we can move fast. We can round up all these people and do these summary deportations because if we make mistakes, we can bring them back.

I actually think that would be a stronger legal argument. What's happening here is that this is about a power play and it's about defiance. So in some ways, the legal interests are working against, I guess, the ego that the administration has. So they might be able to, for example, prohibit further deportations if it becomes clear that this is an irrevocable move and errors can't be corrected. But even if it would be in their legal interest to do that in some other world, in the world we actually live in where it's very likely this guy has been brutalized or tortured,

where him coming back to the United States where his story could be heard would be politically devastating for the administration, that in practice it's not in their interest for him to come back and for any of the people sent out on this authority to come back. Because every one of those people, if they come back and it becomes clear the administration made not just a terrible mistake, but deported somebody into a hell for no reason at all. That it's actually a political imperative for them that that story cannot be told, that Bukele keeps them in CICOT functionally forever. I think that's true.

My only point is, yes, I think there would be a downside to bringing someone back, but I think if they were operating in a paradigm where they want to be in compliance with the court, they would do that. So during the George W. Bush administration, there was famously the removal, the shipping of people who were deemed threats to black sites, to prisons in other places that were not bound by our loss. How similar is the theory and the powers of what we're seeing to what was being invoked and used there?

It's similar. I think that it's more similar to the Bush administration sending people to Guantanamo. So the black sites were instrumental. It was for extracting information that they believed that these detainees had, using methods that would be illegal under our law. I'm not excusing it, but I'm saying that there was a, you know, I think they thought there was going to be some output that they were going to get that would be useful intelligence. But in terms of evading actual court authority, what Bush administration did is that they

looked at some World War II precedents that said that enemy combatants who were in prison in a location over which the US had no control, that those people did not have the right to petition for habeas corpus. And the Bush administration thought, hey, that's great. We can put people in Guantanamo Bay because that's under the sovereign control of Cuba and we can basically have this convenient location where we can house all these people, but it will be out of reach of the courts. And this led to a pretty robust jurisprudence after 9-11, where the courts didn't really

like getting cut out of the equation. And so they began to have these decisions where they said, no, we actually do have the right to look at what you're doing there. And all of this results, by the way, Ezra, in this irony that Guantanamo detainees who are captured abroad, who never stepped foot on American soil, had the ability to petition for a writ of habeas corpus, due process rights,

the ability to contest their enemy combatant status, and were protected by the Geneva conventions. So what you're seeing now is that people who have literally been here for a decade aren't being afforded those same privileges and rights. I mean, that's horrifying. It's horrifying. And I think the administration, what I think is horrifying here is that they've been very legally savvy, right?

They understand whatever lawyers have studied this, understand the trajectory of what happened with the Bush administration and they know, okay, for this to be a constitutional black hole, it has to be completely in another country. And not just to extract information, but they just need to be sent there and we throw away the key. They've been very legally savvy. I think something that is very important and telling about the individual cases here, which

has been true across a lot of what the Trump administration has done in different domains, is it if they wanted to protect this power and expand it maximally, they would choose the people, the cases, the laws of the authorities very, very, very carefully. And what you see with the Abrego Garcia case, although not only him, is they're not doing that. They are choosing people, whether they intend to be doing this or not. It's very hard to know what is incompetence and what is intentional malice, but they're choosing people whom it looks terrible for them to be doing this to.

I mean, there's a reason people know his name. There's a reason this particular case is broken through. And certainly the decision they have made on the other side of that, whether or not they intended to be here or not, is that if they can win on that, then that truly does expand the power. If they don't have to choose who they are sending to Bukele's hellhole carefully, if it does not have to be the absolute worst, most bulletproof confirmation of this person is a horror who you do not want in the United States, if it can just be Donald Trump said so.

Then what you have is a disappearance power, not just a national security power, the capability to remove almost any kind of person at any kind of time. And when he begins to then on top of the criticism he is getting, have Bukele there in the Oval Office yucking it up with him, tell him he's going to need to build more prisons, saying maybe the home groans are next. What do you think? American citizens are a special kind of

people? Wasn't that what he said? Then it feels like we've tipped into another world, whether they're being legally savvy. This is not the narrowly tailored test cases they're sticking to. These are, I mean, the kinds of cases that the Supreme Court is already telling them, you can't do this. And functionally, the response is, yes, we can. Right. I was going to say, I think the only change I would make to what you said is, it's not if we can win on this, then we can do everything else. It's if we can defy this, then we're home free. Yeah.

I mean, when not legally, but just in power terms. Exactly. In power. And this is the difference, I think, between what the Trump administration is doing and what the Bush administration was doing. The Bush administration didn't want the Supreme Court to end up ruling on something that wasn't going to go its way.

So when they thought that maybe they did not have the best legal case, they would move the detainee out, or they would put them into criminal proceedings to avoid having the question actually answered. Because it's sort of, then they're still sort of acting in some gray zone. The Trump administration is willing to take, as you mentioned, these bad cases. Bad cases make bad law for, especially for the executive branch. But they seem to not care. And I think that is the scary part because it does events a

predisposition to disregarding as we're seeing it happen right now. If you were to give me your big picture, we're somehow not even 100 days into this. But your big picture for the way the Trump administration wants to use the security and judicial apparatus of the state to accomplish its objectives, whatever those are, what is the framework that you're using now to make sense of it? I think this is just a consolidation of power. This is arrogating authorities from Congress, which as I mentioned before, it's already kind of seeding on its own, and now, arrogating powers from the judiciary. I mean, effectively what the Trump administration is doing is actually acting as a quasi-judiciary, right?

They're rounding up people and effectively being judge, jury and executioner. And they're just saying, look, trust us. We've decided that this person is guilty, that this person is a terrorist, that this person violated the law. So it's a consolidation of power. It's an authoritarian move. And I think the challenge is who's going to stop us. And if they do it fast enough and they can get people into this constitutional black hole, then they win. So in theory, the power to stop them would be in Congress if Congress wanted to. I think the power to stop this in any systemic way is with Congress.

So the Alien Enemies Act of 1798, I mean, this is, you know, this is a delegation of Congress's war powers. They can- What is that act? Why don't we talk about that act for a minute? Yeah. The Alien Enemies Act was passed in 1798 during the Quasi-War with France. And it allows the president during a declared war or an invasion by a foreign government

to remove alien enemies of the nation that is the enemy that are 14 years or older and basically remove them. And the idea being that in that kind of situation, that people hold their allegiance to their country. And so there could be people who are spies and saboteurs and in order to protect national security, the executive branch needs to have the ability to very quickly remove people. It has only been invoked three times before this year in the War of 1812, in World War I and World War II.

In those contexts, in World War II, for example, people got individualized hearings, at least to determine whether they were, in fact, nationals of the country that was the enemy. But it's now being applied in this immigration context. in fact, nationals of the country that was the enemy. But it's now being applied in this immigration context. Trump is claiming that illegal immigration constitutes an invasion,

and specifically an invasion by Tren de Aragua. And therefore, men 14 years or older who are members of that group fall under the purview of the Alien Enemies Act and can be removed. And when you say it's an irrigation of power by the administration, which I agree it is, is this an irrigation of power because Donald Trump is truly so convinced that South American gangs are a threat to the US or is this an irrigation of power in a more broad based

and fundamentally dictatorial fashion where there's a range of enemies to the state, to the leader, and they are pulling in any set of powers they can to exert control? Well, I think the latter though I think now, they're testing it on this one group because it's something that most people wouldn't object to, right? There's gangs coming in, they're dangerous gangs. I mean, Tren Dera Agua is an actual gang, it's a dangerous gang, so is MS-13.

Let's apply this war framing here. And I think the idea is let's see how much we can get away with and then we can push the envelope and keep expanding this group into broader and broader categories. And we've already heard Trump discussing with President Bukele yesterday that, hey, why not include homegrown criminals in this whole thing? So I think that this is kind of testing the waters to see how they can do it. But this is about summary removal. This is how can we get people out of here in as great numbers as possible,

as quickly as possible. I think that's the goal. And then they'll start including other people into whatever category they deem as the enemy. So we should say that when Trump was amusing that he would like to send homegrown criminals to El Salvador, he does say, well, we'll have to look into the laws on that. What are the laws on that? So I think sending US citizens abroad to rot in a gulag would be blatantly unconstitutional.

There is something called the Non-Detention Act, and it says that no citizen can be imprisoned or otherwise detained except pursuant to an act of Congress. But if you could just send people away on what even you admit is an administrative error. So this is the thing. I think the thing is if it's, we just whisk people off, then at that point, it's over. It's game over. And yes, listen, if they can cut the judicial branch out of this, which is what the Bush administration tried to do, if you can't even get your foot in the door to have the executive branch justify the reason that they designated you as a terrorist, as an enemy,

before they ship you out, then absolutely. We're in 1973 Chile. This is like that's from there to black vans showing up in the middle of the night and rounding you up and you get disappeared. Is that where you think we are? I don't think we're there yet. from there to black vans showing up in the middle of the night and rounding you up and you get disappeared. Is that where you think we are? I don't think we're there yet. Not the black vans, but 1970. I mean, 3Chilla, I mean isn't what is between us and there? In your presentation here, I have found nothing to hold on to.

And I'm not asking you for something to hold on to because I think it's really important that look the thing I say in the intro to this conversation is it seems to me the emergency is here. Yes. The test is here. Yes. The question of whether or not they can defy the courts and do this is here. I think it is very inconvenient to face up to that.

So if you think it isn't true, that's great. I would prefer to think it isn't true as well. But if you think it is true, then what does that imply? What are you supposed to do if you're standing on the abyss of 1973 era Chile? Listen, our

Constitution has one remedy for this, which is impeachment. I mean, this requires political will. It requires a certain consensus that this is unacceptable, that we are beyond the pale, that this is extra constitutional, that this person is abusing their power,

that they are violating their oath, they're violating all kinds of laws. But I mean, I think to me, the constitutional crisis is not, it is the defiance of the judicial branch, but it is as much Congress's failure to act in this situation, whether it's to step up and claw back some of these delegated authorities to stop the national emergency that he's using for other things, or to take that final step and say this is a step too far.

I mean, I think we are in impeachment territory right now. These are impeachable offenses. This is a deprivation of rights. In my opinion, what you saw between Trump and Bukele yesterday was a criminal conspiracy to deprive people of their rights. It's an agreement to commit a crime. It is a crime to deprive people of their rights. It's an agreement to commit a crime. It is a crime to deprive people of their rights under the Constitution or the laws of the United States

under color of law. That's exactly what he was saying that he was going to do. We know that he can't be held criminally liable for that because he's doing these as official acts and the Supreme Court has said that those are beyond the purview of Congress to criminalize. What's left? The problem is impeachment in an era of nationalized polarized political parties is a broken power.

It's a broken power if we no longer have shared values that transcend our partisan affiliation. Which is to say it's a broken power. Yeah. I mean, but that's the remedy, Ezra. If Trump defies the court, the court has no independent enforcement mechanism. I don't want to drive people completely to despair. So let me... I know. We're in like, let's wear sweatpants and stare at the ceiling territory now.

I mean, you can imagine a world where we sort of muddle along in these horrors for a year and change. Democrats have a significant midterm victory. I keep saying, and it's half a joke, but it's not a joke, that what might save American democracy is Donald Trump has the dumbest possible views on the global economy. And in absolutely wrecking 401Ks and prices and the ability of small businesses to import, he is handing his opponents an incredible midterm opportunity. And then Democrats take the House.

Senate is unlikely for them, but it's not completely impossible in a wave. And they're not going to have the power to impeach him. They would not have the numbers in the Senate to attain conviction. But they would all of a sudden have a lot of power. They could take money from all kinds of areas of the government. They could hold all kinds of members of the government in contempt. There is all of a sudden then not power to end this, but a huge amount of leverage. And that's, I think, the actual pathway that is open.

And I think I'm glad that you mentioned the appropriations authority because one thing that remains very unclear in this is where the money is coming from to transport these prisoners. What was that money originally appropriated for? What are the terms of this agreement, by the way? Under the law, there's something called the Case Zeblocki Act, which requires the executive branch, the Secretary of State, to actually notify Congress of executive agreements that it reaches with foreign nations. So this is something that technically they need to disclose.

They're supposed to actually publish it on the Department of State website. But to your point about withholding funds, you know, to go back again to 9-11, Congress actually prohibited the use of funds to transfer detainees from Guantanamo to the United States to be tried in criminal courts. So they were just stuck there. So it seems very clear to me that if Congress wanted to, they could prohibit the use of funds to send people to El Salvador. They could also take a lot of things that Trump administration wants to keep away from them.

So again, imagining the admittedly unlikely scenario of unified democratic control of the House and the Senate, Democrats could simply decide, we're going to carve out more exemptions on the filibuster. And they could take the tariff power away from Donald Trump. They could take the tariff power back for Congress, which is originally where it sits. And all of a sudden, Donald Trump doesn't have his favorite tool of international economics. So everything then becomes a negotiation, right? There are a huge number of powers Trump is using right now that are working off of old

pieces of legislation that were not built for today. Now, Congress does not like going back and revisiting old pieces of legislation ill-built for today because they have trouble legislating on anything. You don't get a lot of political victories for going back and closing all loopholes and authorities, but they could. And in a world that becomes a showdown between the branches, it's not impeachment or nothing. It is leverage over functionally everything. I mean, the president of the United States does not have a magic wand that puts tariffs

on other countries. It has to be enforced and done through US law. That is power given to them by Congress, the things that Doge has been doing, the efforts they're making over spending, that is all power that Congress is functionally granting them. They could take it all back. Yes, absolutely. And I think in a bigger sense, it's reimagining the kind of person we imagine to be in the Oval Office.

So you think about like after Watergate, there were all these reforms that were done because all of a sudden we had to re-imagine what do you do if you have a president who's going to push all these boundaries? And so we get the Ethics in Government Act of 1978, we get the Independent Council Statute, we get restrictions on how tax information can be used by the president because all of

a sudden we had all these examples. I think frankly, we've known this for a while. These things should have been done. That pendulum should have swung already. But that's, I think, the kind of reckoning that is going to have to happen in terms of you can't grant this much authority to the executive branch and it's tough because you also don't want to tie the president's hands. The reason that all these authorities are delegated, the International Emergency Economic

Powers Act that Trump is using to impose the tariffs is really there as a surgical leverage tool if the president needs it, right? We want the president to have something like that if he needs to negotiate something with a specific foreign power, that we're facing a specific emergency, but I think we're no longer in that world, as you said. We're in a different world now and I think Congress has to reckon with that. I remember a political scientist I really respect said to me during Trump's first term, there's no design of a political system that works well for electing terrible people. To design a political system under the theory that you elect terrible people is to make

the system unmanageable because you are by nature tying their hands because they're terrible. But then if you elect leaders who have tyrannical impulses into a system that assumes a fundamental level of good faith on the part of the executive, then you've given an ill-motivated person a terrible amount of power. And I would add to that, Ezra, that the landscape has changed, right? If you're also looking at two big assumptions that maybe existed back in Nixon and before, which is A, that the president is not above the law, and B, that Congress would be willing to use its ultimate weapon if it has to, which is impeachment. If both of those are off the table, then we're in a whole new landscape, and we have to accommodate that reality. We've been talking here about things that we know the administration is doing.

One of the reasons I wanted to talk to you is something that has worried me from the beginning here is things that we don't know the administration is doing. When we go back to the early days and nominations, the nominations of Cash Patel and then Dan Bongino to the FBI, a place he used to work, were astonishing to me. That even Senate Republicans agreed to this was frightening. And when I see the way this administration is working out in daylight, the FBI is a powerful organization that by its nature works in shadow.

It is being run by people who would never run it aside from their loyalty to Donald Trump. What is your sense of both what might be happening here and what is possible here? I'm glad that you mentioned that the FBI operates in the shadows. I mean, it does have this national security piece, which is literally in the shadows, but also the nature of investigation is that a lot of it happens before it ever gets to a court. And I think what most people don't realize is the FBI does not operate under a legislative charter. It doesn't have laws, I mean, apart from the Constitution that govern how that investigative

power can be used. It is governed by something called attorney general guidelines, which are issued by the attorney general. And these create the standards that you need to meet before you could initiate an investigation, what kinds of investigative techniques you can use for different kinds of investigations, what kind of approvals you need, et cetera, et cetera. Those can be changed, rescinded, not adhered to, all internally and we would not know. One thing that we can do is look at what is actually happening or not happening. So for example, after Signalgate, that is the kind of thing that the FBI would normally

have done an investigation or the Department of Justice would have, the attorney general would have appointed a special counsel at least to look into it. We saw Merrick Garland do this with Joe Biden's possession of classified information or mishandling of it, right? That didn't happen. We have recently seen an executive order targeting Chris Krebs, who was the head of CISA and demanding that-

Can you say what CISA is? CISA is the Cybersecurity and Infrastructure Security Agency. It's under DHS. It was created in 2018 and it oversees election security. And Chris Krebs, who was the first director, was one of the people who was very vocal in the 2020 election that the election was secure, you know, reassuring people that our elections were proceeding properly,

which obviously undercut the claims that they were rigged. But Trump has ordered DOJ to do an investigation. Again, this kind of tells me, unless there's evidence that I just don't know, that the Attorney General guidelines are in the dustbin. I mean, they can't possibly be following those to create an unsubstantiated investigation. An analyst who was working on the Russia investigation has been placed on lead. That was somebody who was mentioning Cash Patel's book on his enemies list. So it is telling me that this is not an agency that is working the way that it did when I was there, just based on some of these outward things. And that can be very dangerous because there is a lot the FBI can do.

things. And that can be very dangerous because there is a lot the FBI can do. Let's go into the what it can do. Here's my picture of the FBI. And you can tell me how much of this feels right to you. There is a highly professionalized bureaucracy there. That bureaucracy is a bureaucracy the Trump administration understands to be hostile, has treated as hostile. But of course, not everybody in it is hostile. There are going to be people who are there, who Cash Patel believes are loyal, believes are on board, believes want to advance through Cash Patel's FBI. They're going to be people they hire into the FBI. And so while the entirety of the FBI would not be safe to turn into your private go after my enemies agency, there are certainly going to be dozens, hundreds of people who you could have on special teams, who you were using in ways like this. In the past under

Hoover, the FBI has done a lot of digging up information on people and then using it to compromise them, to blackmail them very famously with people like Martin Luther King Jr. And so if you imagine something that does not seem to me to be far-fetched historically or in the present, which is you've named Patel and Bongino, who are intense loyalists to Donald Trump, to this position. They understand their work is serving Donald Trump's will, and they understand their tools being the FBI and loyal agents within the FBI or loyal people they can bring to the

FBI. What could a group like that do? They can do a lot. There is a long runway from when an investigation is started to when it might get a judicial check of some kind. So just as an example, they can surveil you physically. I mean, just as an intimidation tactic, we'll talk about black vans, right?

They can park in front of your house and just watch you all the time. They can go interview people that you're working with and not make it clear what they're investigating. And that creates a lot of suspicion around you. They can go through your trash. They can find out all the numbers that you're calling. They can get your financial transactional data and find out how and where you're spending your money. All of those things they can do without having to show probable cause to a court. And that in and of itself, I think the danger is not so much you'll be charged with a crime and you know, that is specious, is that you actually will never be charged.

It will be a Hoover type of operation where it's either done surreptitiously, as you said, to gather information and then to weaponize that, or as simply a way to harass you, to intimidate you, to make it expensive for you, that you have to hire a lawyer and you have to figure out what is going on. All of those things can happen and it's why the attorney general guidelines are there. If you listen to Cash Patel and Pam Bondi very carefully in their confirmation hearings, they said, we're going to follow the law. Let's imagine that once again, President-elect Trump issues a director of order to you or

to the FBI director that is outside the boundaries of ethics or law. What will you do? Senator, I will never speak on a hypothetical, especially one saying that the president would do something illegal. What I can tell you is my duty, if confirmed as the attorney general, will be to the Constitution and the United States of America. Director Wray, quoting former Attorney General Bell, said, you should be willing to resign, if necessary, over conduct if you're pressed to engage in it that's unethical, illegal, or unconstitutional.

If pressed by the president, would you resign? Senator, my answer is simply, I would never do anything unconstitutional or unlawful, and I never have in my 16 years of government service. Would you be willing to resign the post of FBI director if pressed and given no choice but to obey the order or resign? Senator, I will always obey the law. Well, the law to them is Article 2. It's the unitary executive theory.

It's this idea that if the president does it, it's legal in terms of law enforcement, in terms of taking care that the law be faithfully executed. So there aren't guardrails. I mean, in their interpretation of the law, the president's will is essentially their command. In their interpretation of the law, it was lawful to go to the SDNY and tell the career prosecutors there to lay off of Eric Adams because he had come to some kind of deal. I mean, accounts differ, but it's pretty clear, I would say, my opinion, what happened,

that he had come to a deal with the Trump administration to basically do what it said in return for their protection. That happened under Pam Bondi, this attorney general. That was to me the big signal in all this. Again, that happened relatively in the daylight. That was to me the big signal in all this. Again, that happened relatively in the daylight. They sustained the effort even after all these prosecutors resigned publicly, creating quite a lot of bad press and publicity for them. And they did it because, I mean, I think the through line of Donald Trump's view of the world and how to operate in it is leverage.

What he wants on countries, what he wants on people, what he wants on business partners is leverage. He'll get it in kind of all different domains. Terrorists are leverage. Power and primaries is leverage. Funding for universities is leverage. The fact that they can deport you on a green card is leverage. The fact that you're being investigated by the SDNY for political corruption is leverage.

But then you think of the FBI and its capacity to find leverage on people. And if you hold the view of them that I just described, then the FBI specifically becomes a very frightening organization. It becomes a weapon. It's important to understand that this idea of using power for leverage actually dovetails very nicely with the unitary executive theory, which doesn't see any independence between law enforcement and the president. Can you say what the unitary executive theory is?

So it's this idea that the president in his singular person embodies all of the executive power. Everyone under him, all the inferior officers under him are essentially expressions of that power. This is really about being able to hire and fire everyone in the executive branch, but it's been extended to this idea that the president can control investigations because he is the chief law enforcement officer. You know, there's nothing in Article 2 of the Constitution that actually says that there has to be any independence. I mean, the Attorney General and FBI is not mentioned there either. These are all evolved from norms. So then when you say there's a connection between unitary executive theory and using the FBI in this way, draw that out.

Basically the unitary executive theory would support President Nixon's maxim that if the president does it, it's legal. It's when we talk through this, what you're left with is at least for the next period until the midterms and the swearing in of another Congress, the boundaries on what they can do are what they decide to do. And well, first, is there anything wrong with that statement? No and you're more of a political analyst than I am but my sense is there may be one other potential restraint is that even if this administration doesn't care about the court of law they do seem to care about the court of public opinion. See I don't

think they do. You don't think they do. Because I think mass protest, unpopularity, bad polls, I could potentially, and also the framing of things, for example, the idea that Trump can't bring back a person from an El Salvador and Gulag, you know, from this country, suggests a lot of weakness. And you know, so I think there are ways to frame things in ways that put the administration on the defensive in terms of the popular narrative. Let me think about how my own thinking on this has changed, because I would have said the same thing you're saying. And I'm not going to tell you that I think there is no level of mass protest, no level of public opinion loss that would move or nerve them.

And the thing about public opinion is he doesn't have to win reelection. And he's definitely not running the country in a way where he seems to care if House Republicans win reelection. Donald Trump has systematically traded away popularity to do things that anybody anywhere in the world could have told him would be unpopular, like crash the global stock market, raise prices for everyday Americans. And it has been their relative immunity is too strong, but willingness to absorb that unpopularity and that backlash, it has made me rethink how sensitive they are to it. The only thing I have actually seen stop them is the beginnings of unravelings in the treasury

bond market. I don't think they want to cause a genuine financial crisis. Beyond that, either because they think this stuff will be popular over time, I mean, Bichela is a very popular president in El Salvador, or because they think their tariffs will work over time, they are not vulnerable or sensitive to short-term whims of popular opinion. Mass protests, I actually find a quite unnerving prospect right now, because I think a lot

about the moment in the first term when you had the George Floyd protests and Trump said that he wanted to see the National Guard or someone deployed to shoot the protesters, at least in the knees. And that order, if you want to call it an order, that suggestion was ignored. And Trump was surrounded by people in that term who saw part of their job as restraining his worst impulses. There are no breaks around him. There is no one left to say no. Watching his cabinet arrange itself to give him this dear leader-like

encomiums, watching Doug Burgum prostrate himself before Donald Trump. Watching Donald Trump's FCC nominee walk around with a golden pin of Trump's head. straight himself before Donald Trump. Watching Donald Trump's FCC nominee walk around with a golden pin of Trump's head. Watching members of Congress put forward bills to make it possible for Trump to have a third term or beyond Mount Rushmore. Watching Marco Rubio defend what is happening with Bukele is, aside from being horrific, very telling. Rubio is completely at this point, clearly

compromised or is chosen to be. The address to the joint session of Congress where Trump singled out Rubio for this public mocking, this public humiliation, where it was clear that Rubio was on thin ice in a way that other members of the administration weren't was a very adroit play, a very adroit signal to everybody that Rubio was either going to get on board fast or he was going to get off boarded fast. So I think they have chosen to ride this as hard as they can under the assumption it'll work out for them. I don't think they have a lot of points of vulnerability until someone else holds actual power.

I trust your assessment. I do think that it is an assumption. I would like to be wrong. Yeah. And you know, I think what you're pointing out is it's always a loyalty test. The ritual humiliation, the wanting people to bend the knee. But I do think for that reason, it's that much more important to have the acts of resistance, right?

Like what Harvard is doing now is absolutely changing their website. The law firms that are stepping up, I do think the protests. If it gets to the point of we need to have our Tiananmen Square moment, then maybe that's what needs to happen. Sometimes the egregious things are what wake people up. This I agree with. The thing I was saying that I don't think they're that vulnerable to now is public opinion. What I think they're vulnerable to is power.

And there are lots of parts of society that hold power. Donald Trump does not have absolute power. It was essential that Harvard did what it did. And now the other universities behind them are going to start doing that too, because you don't want to go down in history as a university that didn't do what Harvard did. This is starting to become true for the law firms. The first set of them fell. And now I think you're seeing a number behind them realize what this moment is and stop

and say, no. Business leaders, I think, have power. Yes. I think there's a lot of power that the Trump administration understands is held elsewhere. And at the moment, that's why I was saying that I think it's very important that Democrats win power in the midterms, because I think what the Trump administration respects ultimately is power. You can already see with the tariff exceptions and carve outs that there are companies he does not want to be on the wrong side of. I do believe protests are important. I just

think it's, I expect we will actually get there. I just think that when we get there, it's going to be a very dangerous moment. For sure. I expect him to invoke the Insurrection Act. Yeah. Do you want to say a bit about what that would permit? The Insurrection Act allows the president to use the military for domestic law enforcement. So essentially, we would see military personnel in the street, potentially arresting people or doing other law enforcement type activities, which I think normally the military has tried to not operate in that way domestically.

I'm also worried he'll invoke the Insurrection Act. And I think, again, going back to people he's appointed, the message of appointing Hegsath Patel, right? He put loyalists in charge of... And firing the JAG officers. Firing the JAG officers, firing generals we thought were disloyal or trying to fire some of them at least. He has tried to take control of the security agencies and I don't think that's for no reason.

I think that's right. I just think that, as you mentioned, exercising all of those pockets of power regularly and systematically from now until the midterms. I mean, waiting until the midterms to me. Yes. I agree with you. I mean, if we're here 500 days in, I don't know where we're going to be. Look, that's a point for me, the last thing I want to come off on in this shows it nihilist.

The point of for me this whole conversation is to say that if it is not stopped now, it is going to get much worse. If people don't take where we are now, it feels so cliche to invoke the poem we are all taught. First, it came from the communists and I said nothing because I was not a communist and they came for the trade unionists and I said nothing because I was not a trade unionist. Then they came for the Jews and I said nothing for I was not a Jew. Then they came for me and there was no one left to say anything. It's not

that there'd be no one left. It's that by then people decide it is too dangerous to say anything, right? That you, you climb up the ladder of power every time you are able to exercise power against a weaker set of enemies in society and nobody stops you. And that's why to me, the Abrego Garcia case is not a small thing. If he can do this to some random Maryland father, three kids, nobody actually leaves his guys to any threat to anybody, and then sit in the Oval Office with Bukele and say, I would like to do this to US citizens too. And people just shrug their shoulders and move on. I mean, then what he has learned is he can do it. Right.

Yeah. Listen, power is freely given. I mean, all of these authoritarians, this is what Timothy Snyder says, right? That power is usually given to them and people obey in advance. And I think that it is important. It seems to me that we're definitely there in the red zone, but I think we're still early enough that there's still a lot that we can do. And just to go back to the Chilean example, just because I was a Latin American studies

person, you know, this is a country that 17 years in extricated itself, you can always come out. It just gets harder and harder as I think as you mentioned with this poem. And so the time to do it is now. And I think there is a complacency that the courts are going to save us. Yes. And the courts have a role and they are, I think, mostly holding their institutional role here, but they're not going to save us. The other institutions, and I mean, not just the co-equal branches, but yes, Congress, as you mentioned, businesses, the legal profession, universities, all the press, all the institutions have to be robust and the people at this stage. Look, I talk to Democrats in Congress all the time.

And the biggest problem they face is that they actually just don't have a lot of good options. I'm not sympathetic in every respect to the decisions they have made. But unless they want to use the debt ceiling to crash the economy, there isn't a huge number of points of leverage. They can hold things up in the Senate, but the fact of the matter is the Trump administration doesn't have a huge legislative agenda at the moment. And Democrats are not in the majority in the Senate and they have very, very little power in the House.

I think people want them to have power. They don't really have. But look, there's going to be another government shutdown question in less than a year. And depending on where we are, I think it's going to be much harder for Democrats if this continues in the way it has been to say on that one, well, we're just going to keep letting this ride. But that's where the rest of society is actually really important. And that's why I really am glad Harvard did what it did.

I really was disgusted by these universities with massive endowments bending the knee that easily, by these law firms, by these business leaders who were so outspoken in Trump's first term and have just decided to buckle under in his second. Mark Zuckerberg is out there with Joe Rogan a couple months ago saying it's so time for Facebook to return to its roots around free expression. Is all this not a threat to free expression? This thing where the kinds of people who work at Facebook can come back into the country on a green card, be pulled into a room and sent back out because somebody found something

that was critical of Donald Trump on their phones? What is the free expression content of that policy? At what point is it imperative on these people who do have not just economic but cultural capital in this country to speak about what's going on? I mean, that stuff matters. Those signals are sent and then they're heeded by other people. Everybody is a node for social contagion. Well, I mean, I'm not holding my breath for Mark Zuckerberg to take a stand on anything. But to go back to the Democrats and the people wanting them to do things that they don't have the power to do fair enough, but this is also an information war.

And to bring this back to Abrego Garcia, there are certain stories that can cut through the noise and that can be the only story. I mean, Republicans are actually really good at this. They get a message. They're very good at distilling it into something very simple. They repeat it and they repeat it and they repeat it. Trump is a master information warrior in my opinion. Learn from that.

And this should be the story, I think, because it's something that people get for exactly the reason that you mentioned. I think people do understand. If the government can stop this guy who's been here for 10 years, get him out of a car, put him on a plane to El Salvador and wash their hands of him. That's us. They've put a face on their own lawlessness. They have put a face on their lawlessness and that is an opportunity to get people to wake up. And I think there are people who, I mean, I think even John Stewart said, yeah,

you got me. I was not taking this seriously and now I am. And I think there are people who will at this point. I think that's a place to end. Also, final question. What are three books you'd recommend to the audience? Three books I'd recommend. I was in Tulsa, Oklahoma last fall and I got a book called The Burning by Tim Madigan about the Tulsa race massacre, which was very eye-opening and astonishing that I did not learn that in history. I recently read Ben Mesric's Breaking

Twitter, which is basically how Musk broke Twitter, but it is an interesting playbook that you are seeing replicated now. So it was a good insight into his mind. And then Jason Stanley's Erasing History, how fascists rewrite the past to control the future, which is very prescient in terms of what the Trump administration is trying to do to universities right now. Thank you very much. Thank you. This episode of the Ezra Clown Show is produced by Lais Isquith, fact-checking Mabarole and Who, Jack McCordick, Kristen Lin, Kate Sinclair, and Mary Marge Locker. Mixing by Isaac Jones with Ahmed Zahota and Fim Shapiro. Our executive producer is Claire Gordon. The show's production team also includes Marie Cassione, Annie Galvin, Marina King, and Jan Kobal. We have original music by Pat McCusker, audience strategy by Christina Samuelski and Shannon Busta. The

director of New York Times of Paineon Audio is Anne-Rose Strasser. And special thanks to Erin Reichlin-Milnick.