Ad Voice (2:04)

This is a terrible nightmare.

Sarah (2:06)

This is what victory feels like. Yeah, hello, it's Sarah here in the BBC's bureau in Washington.

Justin (2:22)

And it's Justin in the worldwide headquarters of AmericasT in London, England. It is two o' clock in the afternoon on Wednesday here in London. We're going to be talking in just a second to Jennifer Rogers, a legal expert about all that is going on at the moment when it comes to the crisis, whether or not it's a constitutional crisis. Well, we'll let her answer that. But the crisis that is undoubtedly unfolding between the judicial branch in the United States and the Trump White House. And it is, Sarah, isn't it a very big deal?

Sarah (2:54)

Yeah, this is a wee bit legally complicated, but it's very important to try and follow along because it gets the absolute heart of how Donald Trump and are possibly trying to trample over the law when they get to do things like deport these alleged gang members who were from Venezuela, but being deported to El Salvador. They adopted a wartime power that allows them to expel people from the US without first having had any kind of court hearing about whether or not that person should be expelled. They put them all on a plane and sent them off to El Salvador. But a district judge here in Washington said that the deportation was illegal and that they should be ordered back. He said that his ruling was that they shouldn't be sent there, therefore the planes were to be turned around. He told the government lawyers, however that's accomplished, whether that means turning the plane around or not, these deportations were to be stopped. That order was not followed. The planes did land in El Salvador. The deportees, who were all handcuffed and shackled were shuffled off the plane. And at that point, the El Salvador, he tweeted and he literally wrote just oopsie, too late. And a crying, laughing emoji. So, you know, he was poking fun at the fact that these deportees had arrived in his country to be jailed in his country in complete controversy of what a district judge had said.

Justin (4:20)

Right. And the White House following up that the press secretary, Caroline Levitt, defending the deportation flights, when she spoke about them after that, it was by now Tuesday.

Caroline Levitt (4:30)

All of the planes that were subject to the written order. The judge's written order took off before the order was entered in the courtroom on Saturday. And the administration will, of course, be happily answering all of those questions that the judge poses in court later today.

Justin (4:46)

But, Sarah, something then happened, which is where the Supreme Court got involved, because Donald Trump took to Truth Social, didn't he, and identified this judge, Judge James Boasberg, and did so in pretty uncomplimentary terms and wants him now removed as a judge because of what he has asked for.

Sarah (5:09)

Yeah, he used one of his favorite phrases. He called the judge a radical left lunatic, pointed out that he'd been appointed by Barack Obama, railed against the decisions. But he also went on to say, and the judge should be impeached because we don't want these violent, demented criminals in our country. So this judge should be removed, essentially, is what he's saying. So the Chief justice of the Supreme Court, John Roberts, actually said, for more than two centuries, it has been established that impeachment is not an appropriate response to a disagreement concerning A judicial decision. That is a very rare, very stern rebuke from the head of the Supreme Court to the President of the United States.

Justin (5:49)

And that's where we are, Sarah, isn't it? And that is why this is so serious, because we've talked before about a potential constitutional crisis. Is Donald Trump going to do what the courts tell him to do or not? And we've also said before, haven't we, that in his first term, although he criticized the courts, and actually lots of presidents criticize court decisions, that he followed it, in the end, he never came into a position where he was openly doing something that they had told him not to do. And that is now the position that he seems to be in and seems, in a way, to be welcoming.

Sarah (6:25)

Exactly. He keeps saying when he's asked that he will always follow a court order. Essentially, it looks as though the executive branch, the White House, is trying to establish new norms in what they are and are not allowed to do, create new presidential powers that cannot be clipped by the courts. So, pretty much, Donald Trump can do whatever he wants, particularly over deportation and immigration. But once they've established. Established that they don't think that they can be reviewed by the judicial branch in any of the decisions they make, then, you know, that could fundamentally remake the way the president runs America effectively.

Justin (6:57)

And just a final thought about this power that they say that they have, that you referred to this wartime act, you have to have an invasion, don't you, for this act to come into force. So either a declaration of war, which Congress would have to do, and there is no declaration of war against this Venezuelan gang, or. Or an invasion into the United States. And what they seem to be suggesting is that this is an invasion. And what a lot of lawyers are saying and a lot of opponents of the Trump administration are saying, I mean, these may or may not be violent gang members, but they haven't exactly invaded, in a sense of the term that anyone would normally understand.

Sarah (7:37)

Yeah. This is about the president just deciding when the US has been invaded. He gets to make that decision, apparently, whether or not the people on this flight were members of this gang, because, of course, they never went before a judge to have that assessment obsessed in any way where he can send them and when. And telling the judges, butt out, you're not senior or important enough to tell me what to do. And by the way, I was elected and you weren't, which, of course, is exactly how the Constitution sets up the difference between the executive branch and the judicial branch. But. But Donald Trump seems to think he can litigate the politics of this rather than the law of this and come out a victor who will have more power than ever.

Justin (8:14)

Yeah, that's a really interesting point. Litigate the politics of it. And again and again. And you look back, Sarah, at all the court cases that there were and all the efforts to put him in jail, actually, and see him certainly not fighting the last election. He fought all of that and he openly told people, didn't he? He fought all of that on a political front rather than a legal front, and that he's learned a few lessons of that, isn't it? Or lessons that he thinks he can use again now.

Sarah (8:44)

Yeah. And he quoted a couple of weeks ago a phrase that's been attributed to Napoleon where he said something like, it's not breaking the law if you're saving your country. It's as though he thinks that there are circumstances, pretty much circumstances in which he is the president of the United States, where he can actually sit above the law and the Constitution if he's doing something he thinks is important enough. And that's what's about to be tested in the courts and see whether or not they can actually enforce the law in the Constitution or whether he can just get away with riding roughshod over it.

Justin (9:14)

Okay, Jennifer Rogers is now on the line, as promised. Jennifer, hello.

Jennifer Rogers (9:18)

Hello.

Justin (9:18)

Tell us, first of all, you do work for cnn, don't you? But you also have rather, more importantly, it is fair to say, proper qualifications in this area.

Jennifer Rogers (9:29)

Well, I'm a former federal prosecutor and also I work as an adjunct clinical professor of law at NYU Law School.

Justin (9:36)

So, you know, the stakes are high and everyone, I think, is beginning to learn now that whatever. And we'll talk a bit about the detail of all of this in a second. But it's worth just saying right at the this is a big deal, isn't it?

Jennifer Rogers (9:47)

It is a big deal. I mean, there's a lot of things happening and a lot of court actions related to the Trump administration's executive orders and other activity. But this is the first time that there's been a suggestion that the administration may not actually follow the order of a court. And so if that plays out and they refuse to do that, that is a huge deal. Unprecedented, really.

Justin (10:11)

And what everyone asks and what people ask us a lot on our podcast on AmericasT is, so what happens then?

Jennifer Rogers (10:19)

Yeah, I wish I knew. Well, listen, if the Trump administration says to Judge Boasberg, we're not going to follow your order, we're not going to just appeal it, we're going to just ignore it and carry out these deportations and continue, then I suspect what would happen is that the plaintiffs in the case, the people who were on the planes, would appeal as wronged parties and then. And the circuit court would weigh in and presumably order the administration to do what the order says, and it would get up to the Supreme Court. I mean, if ultimately the administration refused to honor an order by the Supreme Court, you know, I don't know what happens. You could. The Supreme Court could try to hold people in the administration in contempt, probably starting with the lawyers who are actually appearing in the courts. But, you know, it gets very, very messy. The judiciary doesn't have its own police force to go arrest people and put them in jail for contempt. I mean, there's all sorts of problems that arise with those scenarios, but we have to hope that we won't get there.

Sarah (11:33)

You raise very, very important and very significant questions. I just want to drill down a little bit into the detail of this, that we're absolutely clear about what power people have within this power struggle. I guess Don seems to be saying that this district court judge is too junior, essentially, to weigh in on presidential power. Can you explain sort of the structure of how one goes through one of these legal appeals and why somebody who is, I mean, not the most senior judge in America is able to say what the president can and cannot do?

Jennifer Rogers (12:02)

So in the federal system, the district court is the trial court level. That's the first place that you go if you're filing a lawsuit. So these plaintiffs who were the people on the planes that were deported, their legal representatives filed their lawsuit in the federal district court in the District of Columbia. That's where you have to file. You don't have a choice to jump to the appellate court. So while Judge Boseberg is on the lowest levels of federal judges, he is a duly appointed Article 3 judge with lifetime tenure and all the powers attendant to that position. So that's where they file. They have won this injunction from Judge Boasberg ordering the government not to continue to deport people and to, you know, he ordered them to return the planes if they hadn't landed yet, all of that stuff. If the administration doesn't like the order that was issued, which obviously they do not, their recourse is to appeal that order to the next layer of courts, the Court of Appeals for the District of Columbia. Then, of course, from there, it goes up to the third and last and highest level of our court system, the United States Supreme Court. So while he is the lowest level of judge. I mean, that's no reason to ignore his court order. And historically and traditionally and in other contexts, the administration does honor those orders, including in other cases and other matters that are happening right now. They have said that they will appeal cases in which they have not gotten the rulings that they want. So in only this area are they saying, we refuse to abide by the order of a district court judge, which makes it unique and uniquely dangerous. Now, we it's not 100% certain that they won't comply. They had until noon today to provide answers to the questions Judge Boasberg is asking. So we'll see what plays out from here. But the suggestion that they won't comply is what's new and really problematic.

Sarah (14:04)

As you say, they haven't said in terms yet that they won't comply, and they're sort of nitpicking around the edges of the arguments about whether or not they were in defiance of his order. So he said that the planes had already taken off, that they should be turned around, or basically his order had to be complied with by whatever means. The argument from the White House seems to be, oh, they'd already left American airspace, and so his order wasn't valid, basically. But as I understand it, you're the legal expert, not me. He was asking for an action to be taken inside the United States for someone in the US to tell the planes to turn around. And that he did have the authority to do that.

Jennifer Rogers (14:38)

Yeah, that's my understanding. I mean, the planes are under the control of the United States. They're United States government planes. They're United States pilots. So once the planes land and they actually hand these people over to foreign authorities, you can see how it would be impossible to order United States government employees to change that outcome. But while those planes are in the air, whether or not they're in US Airspace, international airspace, or even the airspace of another country, they have control of those planes and can turn them around. So I don't think there's any legal significance to the notion of where they were in the airspace. The legal significance is in whether they're in U.S. custody, these people, or whether they are outside of U.S. custody.

Justin (15:28)

Jennifer, what do you make of the involvement of the Supreme Court now of John Roberts, the Chief Justice? Because we have often said, and it has often been said, that this Supreme Court is very much on a kind of Trump wavelength. And obviously significant members of the court were appointed by Donald Trump. And the tone of the court, the tenor of the court, very much changed by him in his first administration. What are we to make of John Roberts?

Jennifer Rogers (15:58)

Well, the Chief justice has been protective of judges as far as their independence to make the decisions that they choose to make based on the facts in the law. And this trajectory that we've had of Trump and Trump supporters insulting judges, saying that they're radical leftists and they're not complying with the law, they shouldn't be listened to, that becomes actually dangerous for judges and their families as people kind of take matters into their own hands to express their displeasure with what's happening. So Judge Roberts has spoken out in the past about this practice of criticizing judges in this way and has done so negatively. Right. Suggesting that they should not be criticized for doing their jobs and making their decisions. There's also, though, something else going on here, which is Justice Roberts is the head of the third branch of government, the judiciary, which is supposed to be a co equal branch of government with the executive and the legislative branches. And so to the extent that the judiciary is, you know, downgraded, if you will, by the suggestion that their ruling should not be followed, that they're just political, that they don't need to be adhered to, that's really an existential threat to the judiciary as a co equal third branch of government. So I think Justice Roberts is also saying, you know, we are an independent branch, we're not one of the political branches. You do need to listen to us, so cut it out.

Justin (17:30)

Well, do you? Because that, that is just the fundamental question, isn't it? I, I had. Because I know how to enjoy myself. Jennifer, I had dinner last night with two American law professors here in London, someone I've known for some time and a friend of his. And we had a long discussion about this, as you would expect. And actually one of the professors told me something that I didn't know. He said that the, the Dred Scott decision, this pre Civil War decision about slavery, that effectively said that slavery was fine and that there wasn't ever going to be full citizenship for black Americans. That actually, that was then opposed by Lincoln and by the Republicans, who of course in those days were the anti slavery party. And they never pretended that they were going to go along with it. They accepted it, that it was a right and proper decision. What he was saying is that there is a kind of a discussion that you can have that says actually politics does trump the judicial branch at some points of American history. And maybe this is just one of those.

Jennifer Rogers (18:38)

Yeah, I don't know. I mean, had I been at your dinner, I Think I would have pushed back on that notion in this context. Right. I mean, we're at a place now where 200 plus people are put on a plane without any process whatsoever, without any transportation, transparency into who they are or whether they are within the terms of the executive order. Nothing happened here that we can point to and say we know that this is in compliance with the Constitution. And so whatever happened with Dred Scott and whether people on the ground were or weren't complying with its terms or whatever they thought about that, had those people been sued and they got back into the court system, perhaps we would have seen examples of the right way to turn around a decision that ends up being wrong, which ultimately, of course, happened with Brown versus Board of Education. You have to do this in the courts, in other words. So whatever starts to happen on the ground, you get into courts, and eventually you have to hope in our system that it comes out the right way. And so that's what's happening now. If the Trump administration, as it clearly does, wants to challenge just Judge Boasberg in saying that these people should not have been deported in this way, what they need to do is appeal. They don't need to just continue these deportations in blatant violation of the judge's order. And so I hope that all of this kind of grandstanding and saber rattling will end and they'll just issue their appeal and we'll go from there, and it will very soon be out of Judge Boasberg's hands and into the hands of the next level of court, and ultimately up to the Supreme Court, which, of course, is where Trump thinks that he may succeed. I don't think he'll succeed in this particular case, but he has had a lot of success there in terms of his policies being ratified. The issue here is more process than policy.

Sarah (20:41)

I think there's a degree of nervousness in Washington, Jennifer, you may well have picked up on it, as well as to how much pressure there is on Supreme Court justices when making very, very big decisions like this. I mean, Obviously there is a 6:3 conservative majority. So, you know, most of the time, the Trump administration will get what they want. But I think there's more spotlight on judges than ever before. We saw Amy Comey Barrett, one of the conservative justices, coming under a huge amount of public pressure recently when she voted essentially against the administration when it came to one of the decisions about the executive orders. And there's a story that pizzas have been being delivered unsolicited, unwanted, to judges houses as a Little sign we know where you live. You know, be careful about the sort of decisions that you make. Do you think in this highly politicized atmosphere, there's real pressure on the justices from, you know, whether it's MAGA supporters or the executive branch or whomever.

Jennifer Rogers (21:39)

Oh, absolutely. Absolutely there is. And that's one of the things that Justice Roberts has also been trying to gently, in his way, push back on and bring attention to. The judges just should call the balls and strikes, as he likes to say. Right. They find the facts, they apply it to the law and they make their decisions. And they shouldn't be be pressured into doing that one way or the other. They shouldn't be punished for doing that. He very much wants to kind of take this temperature down. And you're right, it goes both ways. There's certainly people who express their displeasure, which with whatever happens, in whatever way a justice votes. But there's also pressure in advance. I mean, the pressure on these Republican appointed justices to overturn Roe v. Wade after decades and decades of it being a huge priority for Republicans was immense. So it kind of cuts both ways. There's punishment after, but there's pressure in advance. All of it unfortunate, but I don't know what you can really do about that, other than, of course, prosecute people who would actually threaten or harm judges, of course.

Justin (22:47)

Jennifer Rogers, it's really nice to talk to you. We should call the ball and strike, if that's the right phrase. Before we go, is this now a constitutional crisis? Are we saying it is or it isn't?

Jennifer Rogers (22:57)

I don't think it's really in crisis mode until we know for sure that the administration is defying the order, which we should know, I think within a couple of days.

Justin (23:06)

You heard it here first, Jennifer, thank you so much. Bye bye.

Jennifer Rogers (23:09)

Thanks.

Justin (23:18)

Well, that was interesting, Sarah. And of course, I mean, something we didn't really get to with her. But it's worth saying, isn't it, that all of this, and we've drilled down on this specific case of the Venezuelans and this is the case that's brought it all to a head. But when you look at the other things, the other areas in which the Trump administration is coming into conflict with the courts and potentially conflict with Congress as well, if Congress ever gets his act together. So I'm thinking of, you know, what they're doing to the usaid, what they're doing when it comes to spending money that they're meant to spend and not spending it, and all the other court cases actually, as well, that at the moment have been, you know, these executive orders that Donald Trump has signed and then courts and various things. For instance, a transgender ban in the military. That's been stopped, hasn't it, by a court? It is in a lot of conflict in a lot of areas.

Sarah (24:06)

Oh, yeah, yeah. Their lawyers are being kept extremely busy up until now, when these orders have been made, they have as yet complied with, and there hasn't been a circumstance like this where a judge so obviously said, stop it immediately, and they didn't comply with that order. So that's why this one looks legally so interesting. But also, of course, it's at the absolute spear tip of Trump administration policy, isn't it, in immigration and being happy to be being seen as harsh as possible, because, you know, we're talking about the legal precedents here. We're also talking about more than 200 individuals, many of whom say they are not members of this illegal gang, who were sort of ripped away from their lives and families in America and deported to El Salvador, where they're expected to remain for a very, very long time. And they had no judic appeal of any kind before they did that. And they're far from the only ones. I mean, it's now looking considerably more precarious to be in America without being an American citizen. All sorts of things are happening to people. I mean, there's stories about people who are visiting the United States who think they're following the rules, and then suddenly they find they've been detained by ice, by Immigrations and Customs Enforcement.

Justin (25:17)

Yeah. And there's this big case, isn't there, of someone who is there with indefinite right to stay? He's been an activist at Columbia University. He's said things about the Palestinian issue that the Trump administration says are unacceptable. They want him to go. He's gone, I think, to Louisiana, hasn't he? Or been taken under arrest to Louisiana, where presumably at some stage he comes to court, I guess, in Louisiana, because it's a more conservative judicial system, and maybe they will be the. The people to deport him. But that, you know, again, the idea that someone is in the United States legally, has committed no crime, or at least is accused of committing no crime, no criminal prosecution is pending of him, but they want to chuck him up.

Sarah (26:10)

Yes. So with him, with Mahmoud Khalil, it seems the administration thought he was hearing a student visa and that they could just revoke that visa. The fact is he was actually a green card holder and he's married to a citizen, so it got slightly more complicated. And as you say, he's been moved to detention in Louisiana. And then Marco Rubio, the Secretary of State, declared that he was somebody who wasn't welcome in the United States. And apparently the Secretary of State has the power to do that. So that case is going through the courts at the moment with a lot of people saying it's a First Amendment, it's a free speech issue, that this guy is being thrown out for expressing his opinion about the Israel Gaza War, and that that's just fundamentally wrong and unconstitutional. And there's another one getting slightly less attention. But I think it's also important. There is a doctor, Dr. Rash Alawai, who is a Lebanese doctor who works at Brown University. And she was deported over the weekend. She's actually already been sent back to Lebanon. And at issue was the fact that she had traveled back voluntarily to Lebanon and admitted that she attended the Hezbollah leader Hassan Nasrallah's funeral. Somehow or other border agents knew that when she was trying to get back into the United States, and she was detained and eventually deported. And it's, I mean, it's still very unclear exactly what US Laws she's broken there as well. And it's definite. Definitely looks as though the Trump administration is just very happy to go ahead with the most strict kind of enforcement they can, even very, very controversial cases, and is more than happy to discuss them in public and say, yeah, we're doing what we have to to get rid of undesirable and dangerous people from this country, whether or not they're trampling over constitutional norms as they do it.

Justin (27:46)

Yeah. And that really gets to the politics as well, doesn't it, again? Because, I mean, we mentioned the politics right at the beginning of all of this, and the way that Donald Trump always believes that he can fight these judicial things on political terms, because he always wins on political terms. And just when you, when you look at the cases, obviously, of the, of the Venezuelans, alleged gang members, not gonna be an awful lot of political kind of groundswell of love for them. But also the, the people you've just mentioned, I mean, particularly someone who went to Nasrallah's funeral, again, do the Democrats. Well, are the Democrats. Let me ask you this question, actually, Sarah, because I haven't seen much from the Democrats. Are you seeing, is anyone seeing anyone on the Democratic side coming out and saying, saying, these people, we don't necessarily support them, but we support their rights and we're going to say so loudly, or are they being cowed by the difficult political place that that might put them in.

Sarah (28:41)

Yeah, not particularly loudly, not particularly boldly. And in fact, there is a general sense, I think, in America at the moment, that while you've got some judges, as we've been talking about, holding the line, that while we're in this unprecedented period where it looks as though the president is trying to significantly exp his powers, that would change the way, you know, the White House operated for generations after this, that there aren't a lot of people standing up and holding the line. Where are the heroes in this moment? If everybody thinks it is quite as dangerous, quite as fragile as they seem to say, you're not seeing a groundswell of opinion against it, of people really standing up politically to try and stop Donald Trump. That seems to fall on the judicial radio.

Justin (29:28)

We'll leave it there, Sarah, Good to talk. See you soon.

Sarah (29:31)

Bye bye.

Jennifer Rogers (29:34)

AmeriCast, AmeriCast from BBC News.

Justin (29:38)

Well, look, thanks for listening all the way to the end of today's AmericasT. You are now officially an AmericasT. It is, of course, a ride, a wild ride, navigating the US News, particularly in the era of Trump. You have made it. If you have a comment, a question about the things we've talked about or anything at all actually, get in touch with us. The email is americastbc.co.uk the WhatsApp is 033-01-239480. We answer your questions every single week, actually on the podcast. So keep them coming. You can join the online community as well on Discord. The link is in the podcast description on your app. We will be back with another podcast very soon. So so until then, see you later. Bye.

Ad Voice (30:37)

The US Electric grid is approaching a breaking point as demand soars from data centers and home energy use our aging infrastructure can't keep. And the Department of Energy warns that without action, blackouts could surge 100 fold by 2030. The good news? One solution is already here. Propane. It's American made, stored on site and always ready. Powering homes and businesses with cleaner, reliable energy that doesn't depend on the grid or the weather. Learn more@propain.com hi, I'm Cindy Crawford and.

Cindy Crawford (31:09)

I'm the founder of meaningful beauty. When Dr. Sabah and I decided to do a skincare line together, he said to me, we are going to give women meaningful beauty. And I said, that's exactly right. We want to give women meaningful beauty, which means each and every product is meaningful. It has a reason to exist. It's efficacious. You're going to get results. And then you just go out and live your life. Meaningful beauty Confidence is beautiful. Learn more@meaningfulbeauty.com.

Ad Voice (31:40)

This message is sponsored by Greenlight. With school out, summer is the perfect time to teach our kids real world money skills they'll use forever. Greenlight is a debit card and the number one family finance and safety app used by millions of families helping kids learn how to save, invest and spend wisely. Parents can send their kids money and track their spending and saving while kids build money, confidence and skills in fun ways. Start your risk free Greenlight trial today@greenlight.com iheart that's greenlight.com iheartra Sam.