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Michael Popak (0:30)

So many different things are going on in a three quarter page opinion by the United States Supreme Court that looks on its surface to be about Kilmer Armando Abrego Garcia and whether he's gonna continue to rot in El Salvador or if the Trump administration is gonna be required by some judge somewhere to facilitate his return or not. But when you go into the nitty gritty molecular level DNA of these three quarters of a page and you distill it all, there are some shockers in there and I'm going to describe them to you right here. Only way I know how telling the truth, I'm midas touch. All right, let's get into it. First of all, let's do the, let's do it by the numbers. This looks to be a 90 decision in favor of Armando Abrego Garcia, who was illegally as admitted by the Trump administration, as admitted by the Trump administration, as confessed by them, illegally deported over an order of an immigration judge of protection that required that he stay in the country and not be sent back to certain death or punishment or violent attack in El Salvador. Everybody admits that. One shocker of the decision is that there is, as recited by the majority by the 9 0, a confession by the Trump administration that they knew about Armando Abrego's order of protection and they deported him anyway. And as we said before, and I said it in my prior analysis a couple of weeks ago, that could end up being the death knell for the Trump administration. I think it is. It's in the first three lines of the decision. I'm going to read to you in a minute. That's one. Another shocker. They, they affirm and empower a lower court judge who's been mercilessly attacked by the Trump administration and say that on balance she was right. Judge Paula Zinnis, who has been attacked by the Trump administration for issuing her original order back on April 4, that the Trump administration committed an illegal act and must facilitate and effectuate the return of Abrego Garcia by last Monday at midnight. Now that didn't happen because of an administrative stay, but in this shocker of an order, all nine, and that means the MAGA right have reaffirmed the power and the jurisdiction of this judge, a judge who is called a leftist, a Marxist, an out of control rogue, you know, left wing judge that should be ignored. With the Trump administration thumb in their nose at her. No, the Supreme Court says she was right. There was one odd choice of words. They didn't, they didn't like, they liked, they love the word facilitate his return that they wrote. They didn't like the word effectuate the return. Facilitate, effectuate. I'm going to, I'm going to go over the differences in a moment. Here's another shocker. Not one judge, not one justice, and certainly not the nine, not the majority, not who wrote the opinion is ordering the return of Armando Garcia into the United States. They're not ordering the return, they're empowering the federal judge who ordered that the US Facilitate and effectuate, or in this case, facilitate his return. So I want to make sure we get the headline straight because sometimes they're, they're typed out very quickly. No order of immediate return, but an order requiring the Trump administration to use all of its powers to facilitate his return. Now, here's another shocker at the end when I got to the part where Sotomayor, Jackson and Kagan issued a statement, not a dissent. Another shocker. There's no dissent here. That's how I know it's 9 0. What's, what's the shocker? When I read it, I was like, oh, here we go. They're going to do. We should have done an order. I disagree with the majority. We should have done an order for his return. Doesn't say that. All it is is a recitation of the bad facts against the government, which of course I appreciate that she put it in there. But then saying, and kind of empowering Judge Zinnis again in Maryland saying, you better hold the government to its proof and hold their feet to the fire. That's it. It was more of a finger wagging than it was any real kind of substance. But I appreciate anything Sotomayor writes and I want to cover that as well. What does it mean? And then I'll read to you from it. It means that the case has been returned to the trial judge where it sits. Her jurisdiction has not been taken away. She gets to conduct further proceedings with the instructions given by the United States Supreme Court. They're okay with facilitate and they have told the Trump administration, you better be ready to stand and deliver in a court of law before Judge Zinnis and tell her what you've done to facilitate and other steps that could be taken. And if you haven't taken steps to facilitate, you better tell her why and how to the extent that you can, because you know they're going to argue, oh, you know, foreign affairs and executive privilege and state secrets and whatever else. The only thing that's foreign about this, just to touch on that for a minute, there's no foreign affairs angled to this. I, except Donald Trump decided to offload and delegate and, and off and off and ship off prisoners and people that were in our immigration process and send them to El Salvador. That was his choice. They make it sound like, oh, he's busy negotiating a major war peace treaty with the El Salvadorans and you like Jefferson with the French, like, what are you talking about? It's just the location of the prison that you're using temporarily. You're renting space in El Salvador. That doesn't make it major foreign relations. But there is a line in there that got the Trump administration all excited and they tried to argue that they won. These two concepts both can't be true. The lawyers for Abrego Garcia rightly read the 3/4 of a paragraph, 3/4 of a page I'm going to read you. And they said the rule of law prevailed. Bring him back. Now. I agree with all that. The Trump administration read it, saw the one line about, oh, Judge Zinnis, when you get it back, you may not be able to go as far as you thought on the word effectuate. Careful there. You might cross over into foreign relations that are the province of the executive branch. Oh, yes, the Supreme Court has affirmed that we have foreign relations powers that a federal judge can't interfere with and a rogue. They didn't say any of that. That that's twisting completely out of all recognizable shape. One line in this, in this majority opinion. I've already given you the shockers. Let me read to you from it now. This is the Supreme Court of the United States decision issued, actually issued on Thursday night. On March 15, 2025, the United States removed Kilmer Armando Abrego Garcia from the United States to El Salvador. And then here's the three lines that drive the whole decision. The United States acknowledged that Abrego Garcia was subject to a withholding order. That's from an immigration judge forbidding his removal to El Salvador and that the removal to El Salvador was therefore illegal. The United States represents that the removal to El Salvador was the result of an administrative error Done dead stick a fork in it. It's what we said was going to happen. Did you know Fast Growing Trees is the biggest online nursery in the US with thousands of different plants and over 2 million happy customers. 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But they continue, they talk about Judge Zinnis order on April 4 directing the government to facilitate and effectuate the return of Abrego Garcia to the United States by last April. What's the difference, Popak? We tell you the difference. Let me use an example. Effectuate and facilitate. Okay. Facilitate means using all of your efforts, all your lawful means to try to encourage an event to happen, somebody to do something, some, some, something to happen on the other end that you don't control, but you can promote and facilitate and grease the skids so that the other counterparty does the thing you want them to do or doesn't do the thing you want them to do. Let's use a library as an example. If somebody needed to facilitate taking out a book from the library, okay, you would, you would facilitate it. You'd show up with your library card, you call on the librarian, you'd show up at the right time and place, you'd ask for the right book, you'd show them the card of where it's located. If you owed any money or fines that suspended your library privileges, you'd pay them. And now you facilitated take checking out a book. What you didn't do is if all of that failed while the library was closed, you didn't break into the library and take the book off the shelf. That's effectuating the, the checking out of the library book. That's the difference. So the judge was right and the Supreme Court supported her, that the Trump administration needs to tell the judge and to do it all those things necessary to facilitate his return. Make the phone calls, fill out the paperwork, pull, push the buttons, cut off the funding, whatever you need to do to facilitate and get from the other party the conduct that you're looking for. Make the phone, call Trump, call Bukele. And if you're not going to do it or you can't do it, they're going to need to catalog it to Judge Zenis. But what they don't have to do is effectuate his return they don't have to go break into the jail and go get him. That's the difference that would cross over into the world of foreign affairs. So here's what they say on the top of page 2. To the extent that the government's emergency application, okay. The rest of the district court's order remains in effect. Right here's what she wrote in her order. So you know what they are affirming that she says when she granted that relief. That's been affirmed now by the Supreme Court. This preliminary relief is issued to restore the status quo and to preserve Abrego Garcia's access due process in accordance with the Constitution and governing immigration law. That is what the Supreme Court has adopted, that he has constitutional rights that need to be complied with and honored. And they are embracing that. The rest of the district courts remains in effect. Order remains in effect, but requires clarification on remand. We're sending it back to you on remand with instructions. The order properly requires the government to facilitate his release and to ensure that his case is handled as it would have been had it not been improperly sent to El Salvador. That's the in accordance with the Constitution part of her order. The intended scope of the term effectuate in the order is unclear and may exceed the district court's authority. The district court should clarify its directive with due regard for the deference owed to the executive branch in the conduct of foreign affairs. For its part, the government should be prepared to share meaning with the trial judge what it can. A little weasel word there concerning the steps that it's taken and the prospects of further steps. What have you done to get them back to facilitate? What are you planning to do? If you're not doing it, why aren't you doing it? And that's going to be for the judge at the fact finder to go and figure out. I don't think it's going to work for Donald Trump to say state secrets privilege or executive privilege or we're not telling you. We don't. Because she's now been supercharged by this United States Supreme Court ruling in the way that they've written it. Now, let me just end it this way with Satymayur SATA. Mayor, I was like, here we go with the other two. They're going to go. Dissent? No dissent, just a statement. And here's the statement. The most powerful part of it is her comment that the Trump administration could have been getting him back, but instead have been arguing ridiculous points of law in the courtroom. Here's what she says on page three. Instead of hastening to correct its egregious error, the government dismissed it as an oversight. The government's argument implies that it could, this is the scary part, could deport and incarcerate any person, including US Citizens, without legal consequences, so long as it does so before a court can intervene in the middle of the night, citing back to the JGG case that they just decided on, the Alien Enemies Act. But then she sort of punts. She says, nevertheless, I agree with the court's order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled to had he not been unlawfully removed to El Salvador, including due process of law. And at the end, she wags her finger in the proceeding. On remand, the district court, Judge Zinnis should continue to ensure that the government lives up to its obligations to follow the law. Wow. Good luck. Good luck. Come back here and follow how Judge Zinnis takes this on remand, what type of hearing she holds, what are the requirements that the Trump administration now has based on this ruling? And you'll now know why I said at the top of that take, there's no way this is a win for the Trump administration only by contorting that one sentence about foreign relations. We're going to have a lot of explaining to do in front of Judge Zinnis, and we're going to do it right here on the Midas Touch Network. So until my next Legal AF podcast, my next Legal AF, the YouTube channel, my next hot take, I'm Michael Popak and I'm reporting in collaboration with the Midas Touch Network. We just launched the Legal AF YouTube channel. Help us build this pro democracy channel where I'll be curating the top stories, the intersection of law and Politics. Go to YouTube now and free subscribe at Legal AFMTN. That's @legal AFMTN.