Mr. Abrego Garcia

Summary

Main Justice Podcast Summary: "Mr. Abrego Garcia" (April 15, 2025)

Host/Authors: Andrew Weissmann and Mary McCord

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Introduction

In the April 15, 2025 episode of Main Justice, hosts Andrew Weissmann and Mary McCord delve into the contentious case of Mr. Kilmar Abrego Garcia, exploring the legal intricacies and broader implications of his wrongful detention in El Salvador. Drawing from their extensive DOJ experience, Andrew and Mary provide a comprehensive analysis of the situation, highlighting the failures within the Department of Justice and the ongoing challenges to uphold the rule of law.

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Mr. Abrego Garcia Case Overview

Background of the Case

Mr. Kilmar Abrego Garcia, a native and citizen of El Salvador, was wrongfully deported from the United States to a terrorism detention center in El Salvador. This removal was admitted by the government as a mistake, yet Garcia remains incarcerated without due process.

Notable Quote:

Mary McCord (04:38): "Mr. Garcia, right now, as we are recording, this is still wrongfully detained in that prison in El Salvador, which the government admits he was mistakenly taken from this country and put there. He is still in jail."

Supreme Court Ruling

The Supreme Court issued a per curiam (unsigned) order, emphasizing two primary obligations for the government:

1. Facilitate Garcia’s Release: The government must take all available steps to return Garcia to the United States promptly.
2. Ensure Due Process: Garcia is entitled to due process rights, including a pre-deprivation hearing, as previously mandated.

Notable Quote:

Andrew Weissmann (07:42): "They need to facilitate his release and ensure due process in doing that."

Despite the ruling, ambiguity remains, particularly regarding the term "effectuate," leading to continued delays and governmental obfuscation.

Government Response and Court Orders

Following the Supreme Court's directive, Judge Paula Zenas of the District of Maryland clarified that the government must:

• Provide detailed declarations about Garcia's custody status.
• Outline steps taken to facilitate his return.
• Present plans for further actions to ensure his release.

However, the government's responses have been notably evasive, often failing to address the core issues or provide substantive answers.

Notable Quote:

Mary McCord (08:54): "The United States has not even said that has asked El Salvador for his return. Period. The end."

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Broader DOJ Actions and Policy Shifts

Termination of Alabama Public Health Settlement

The DOJ recently terminated a significant settlement with Alabama’s Department of Public Health, which aimed to address racial discrimination in sanitation services in a predominantly Black county. This settlement had facilitated improvements in sanitation infrastructure and prevented the criminalization of residents attempting to manage raw sewage issues independently.

Notable Quote:

Mary McCord (46:37): "The DOJ will immediately close what they deemed an environmental justice matter. President Trump made it clear Americans deserve a government committed to serving every individual with dignity and respect..."

Retaliatory Actions Against Individuals

Andrew and Mary highlight a series of retaliatory measures targeting former DHS officials Chris Krebs and Miles Taylor. Both individuals faced executive orders aimed at revoking their security clearances and initiating investigations into their conduct following their departure from the Trump administration.

Notable Quote:

Andrew Weissmann (52:53): "The president is targeting them, directing security clearances to be revoked, and conducting investigations into their conduct."

Attack on Academic Institutions

The podcast discusses the DOJ's lawsuit against Harvard University for allegedly imposing restrictions on hiring, promotions, and admissions based on political biases. This legal action underscores a broader strategy to undermine academic freedom and enforce ideological conformity within educational institutions.

Notable Quote:

Mary McCord (47:07): "The government's letter to Harvard essentially threatens to withdraw $2 billion in funding unless the university complies with a series of restrictive measures."

Associated Press Lawsuit for Press Access

In a significant blow to press freedom, the Associated Press (AP) has sued the government after being denied access to cover Oval Office events. The court ruled in favor of the AP, citing viewpoint discrimination and First Amendment retaliation, though the government is appealing the decision.

Notable Quote:

Andrew Weissmann (56:21): "The Associated Press was deprived of its privileges to be part of the press pool... This is in retribution for refusing to call the Gulf of Mexico the Gulf of America."

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Legal and Constitutional Implications

Andrew Weissmann and Mary McCord emphasize the erosion of the rule of law under the current administration. They argue that the government's actions—ranging from wrongful detentions to retaliatory executive orders—undermine constitutional protections and judicial authority.

Notable Quote:

Mary McCord (24:58): "This flies in the face of the Supreme Court ruling and the oath of office you take to 'take care that the laws be faithfully executed.'"

The hosts advocate for judicial accountability, suggesting that non-compliance with court orders should result in sanctions, including fines or even imprisonment for obstructive officials.

Notable Quote:

Andrew Weissmann (36:31): "If you disagree with the court's order, you can appeal it. But refusing to comply should lead to contempt charges and sanctions."

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Positive Developments and Judicial Resistance

Despite the administration's efforts to bypass legal norms, judges across the political spectrum, including those appointed by President Trump, have upheld the rule of law. In the Garcia case, both New York and Texas district courts issued temporary restraining orders preventing further deportations without due process, demonstrating judicial resistance to governmental overreach.

Notable Quote:

Mary McCord (43:28): "Judges appointed by Democrats and Republicans, including those appointed by Donald Trump, are upholding the rule of law."

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Conclusion

The episode of Main Justice provides a critical examination of the ongoing challenges to legal integrity and constitutional rights within the current U.S. administration. Through the lens of the Mr. Abrego Garcia case and other retaliatory actions, hosts Andrew Weissmann and Mary McCord underscore the urgent need to safeguard democratic principles and ensure that the rule of law remains unviolated.

Notable Quote:

Mary McCord (23:37): "In this country, you don't get to say, 'Off with their head.' Trial to follow. That is the claim here because they allege without any hearing and without any proof."

Listeners are encouraged to stay informed and advocate for judicial accountability to prevent further erosions of legal and constitutional safeguards.

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For more in-depth analysis and updates, subscribe to Main Justice on Apple Podcasts and follow along with Andrew Weissmann and Mary McCord as they continue to protect our laws, Constitution, and democracy.

Transcript

[Alex Wagner]

Its President Trump's first 100 days. And MSNBC's Alex Wagner will be covering it all from the front lines.

[Andrew Weissman]

What issue matters to you the most?

[Alex Wagner]

Join her as she travels the country to talk to the people at the center of the President's policies and promises.

[Andrew Weissman]

Do you think now that he's pardoned everybody, he can count on this group of people again?

[Alex Wagner]

Search for Trumpland with Alex Wagner wherever you're listening and follow. Subscribe to MSNBC Premium on Apple Podcasts to listen ad free. Sir David Frost. He gave us a front row seat to history.

[Andrew Weissman]

What I'm interested in is conversation, not an interrogation.

[Mary McCord]

He was the person to be interviewed by.

[Alex Wagner]

Now we discover his most iconic interviews.

[Andrew Weissman]

Welcome, please. The Beatles, Muhammad Ali, Jane Fonda, one.

[Alex Wagner]

Of the greatest interviewers of all time. MSNBC Films presents a six part documentary series, David Frost Versus beginning Sunday, April 27th at 9:00pm Eastern on MSNBC.

[Mary McCord]

Hello and welcome to Main Justice. It is Tuesday morning, April 15th.

[Andrew Weissman]

Tax Day.

[Mary McCord]

It is Tax day. Do people still have to pay their taxes given? I don't think so.

[Andrew Weissman]

We don't have government anymore, so what have we been paying for?

[Mary McCord]

It's a trust system. Oh, Mary, Sorry. So there's so much to talk about because there's things that fall into the bucket of the illegal and that's the bucket of just like policy decisions that are. What's the word? Dumb.

[Andrew Weissman]

Dumb.

[Mary McCord]

But you know, the irs, it may sound good to say you're going to shrink it and eradicate it, but like, we actually make money off of that anyway. Okay, so as you can tell, we're already triggered.

[Andrew Weissman]

That's right. And we're not even. We don't even have taxes on our agenda today. We have all kinds of stuff.

[Mary McCord]

So in case you don't know, I am Andrew Weissman and that other person is Mary McCord. Hi, Mary.

[Andrew Weissman]

I didn't even realize we hadn't said that yet. Okay.

[Mary McCord]

Yeah, it's going to be one of those days. So before we dig in, let me remind people that this podcast and also two other sister podcasts produced by MSNBC into America and why is this happening? All three of us have been nominated for Webby Awards. You can go and vote for any or all of those three or any others that you choose. You have just a few more days to do so.

[Andrew Weissman]

In fact, there are two days left to cast your vote. Votes are due on April 17, so check out our show notes and see how you can vote for each show and help MSNBC take home the award for all Three of them.

[Mary McCord]

So snap a doodle. Yes. We haven't heard that snap a doodle in a while. We have not.

[Andrew Weissman]

Maybe because everything is already going so fast. Everything's snap a doodling already.

[Mary McCord]

Okay. It's sort of remarkable to me, Ray, that we've managed to keep it this light for this long because we're about to get dark.

[Andrew Weissman]

Yes.

[Mary McCord]

What is on our dance card? I mean, obviously we're gonna talk about the Garcia case, right?

[Andrew Weissman]

Yes. Top news, top of mind. Is this continuing real saga over the erroneous unlocke, awful deportation of, or I should really say removal of Kilmar Abrego Garcia from the United States to an El Salvador terrorism detention center. And the back and forth and back and forth that's been going on for days now between the administration and the courts in terms of trying to get some information about what his status is and what the government has done pursuant to the Supreme Court's direction to facilitate his return to the United States. And of course, we had the meeting between President Trump and. And the president of El Salvador in the White House yesterday, and that has probably only made things worse.

[Mary McCord]

So we will bring people up to speed on the TikTok of exactly what happened. But then also our take on what should happen. Mary, you wrote. I'm so impressed because you got that out in record time. You wrote a great piece yesterday in the Washington Post. We're going to put that in the show notes so people can read it. One spoiler alert. And that is really has to be remembered. I want to make sure everyone knows. Mr. Garcia, right now, as we are recording, this is still wrongfully detained in that prison in El Salvador, which the government admits he was mistakenly taken from this country and put there. He is still in jail.

[Andrew Weissman]

Yes. And has not been able to actually speak to his wife or anyone. Right. People hear, you know, that's why the court had to say, where is he? And we'll get into that. And I think this raises also very interesting issues about things happening in court and things happening outside of court, because there's a pretty big inconsistency between those things. And that's something we've mentioned before, and we're really seeing it here. We will also look at some things going on at the Department of Justice. I mean, this podcast is, in fact, called Main Justice. And so we do want to continue to raise flags about things going on there, including something that I think would have probably been big, big news if it weren't for so much other news, and that is the termination, cancellation of a major settlement with the state of Alabama's public health system that had to do with alleged discrimination in providing services, sanitation, sewage services, et cetera, to a majority black county. A major agreement to improve those services, to not criminalize people who ended up trying to take their own measures to prevent raw sewage from being in their yard. And of course, what have we done now? Well, we've ripped up that settlement agreement because that's DEI and we'll tell you what that means. And then every week, I mean, we should just always have one of the segments is retribution because that's what we're seeing every day in new and different ways. Last week, of course, crossing a Rubicon and actually targeting individuals. Chris Krebs and Miles Taylor. We've had now an entire targeting of, I mean, we've already seen targeting of universities, but the targeting of Harvard and Harvard pushing back Harvard now litigating over the. And we've seen additional people, of course, being scooped up off of campuses. And we've seen, as we've talked about before, retribution against journalists. And we now have a whole conflict there. In a case brought by the Associated Press, got a TRO against retaliation. And it appears, at least as of yesterday, that the White House may not be complying with that. So lots and lots of stuff to get to. There's just so much.

[Mary McCord]

There's a deluge. And to your point, under normal circumstances, one of the things that we would start with is the firebombing of Pennsylvania Governor Josh Shapiro home on Passover and the infiltration by that individual into the governor's mansion. Actually got into the mansion after throwing Molotov cocktails, reportedly was there with a hammer, saying that if he had seen the governor, he was planning on beating him. And that there isn't sort of a bipartisan hue and cry about it signals the idea that violence is just not being treated in the way that it should. That would normally be the main topic of conversation, but it's not. So instead, let's turn to the Abrego Garcia case. Since our last podcast, the Supreme Court ruled in a per curiam. That is an unsigned order with no dissents.

[Andrew Weissman]

That's right.

[Mary McCord]

And it gave two obligations to the government. One, it said that the government has to facilitate the release of Mr. Abrego Garcia from prison. It also said they had to ensure his due process rights. Remember, they had previously said in a prior decision that these people who had been removed are entitled to a pre deprivation hearing.

[Andrew Weissman]

They talked about that in the context of the Venezuelans who had been removed under the supposed authority of Alien Enemy Act. And this of course is separate because Mr. Garcia is El Salvadoran.

[Mary McCord]

Right. The idea is before you're removed, you're entitled to a hearing. You can say that legally the whatever the statute is that doesn't apply or that you're not within the gang or the group that is being removed. So you're entitled to a pre deprivation hearing. And here the court says one, they need to facilitate his release to. They need to ensure due process in doing that. They need to be prepared to share with the district judge what it is that they are doing, what steps they.

[Andrew Weissman]

Have taken and the prospect of further steps. It's exactly what the court said.

[Mary McCord]

And then finally the court did say that with respect to the district court saying that you have to facilitate and effectuate. That was sort of. This is. We're really getting into the weeds here. They did say that the word effectuate is unclear. That was exactly their word.

[Andrew Weissman]

Needed clarification. Yep.

[Mary McCord]

Because obviously what they're concerned about is they say you can't order the government to effectuate. Let's just take a different hypothetical, the release of somebody in Russia who not under our control, totally their pursuant to Russian authorities to say now the government of the United States has to go into Russia and do the following.

[Andrew Weissman]

Right.

[Mary McCord]

So they're saying that is ambiguous and you have to deal with that situation and make sure that you're not crossing the line into something the government actually can't do. Nor would it really be the province of a court to say that. So those left a number of obligations on the government that they needed to fulfill. And it then went back to the district judge and maybe Mary, what did the district judge then do?

[Andrew Weissman]

Yeah, and I think the timing here is really, really important. So this is on Thursday evening, I think around 5 or 6pm that the court put out this order. And in doing that, let's just remind people this was up there on a motion to stay the lower court's order that it needed to stay and vacate, get rid of the lower court's order that the government needed to facilitate and effectuate his return. Right. And so that's the posture where it was in the Supreme Court. So the Supreme Court pretty much denied that motion to vacate. Right. Did tell the district court, clarify what you mean by effectuate with due regard to, you know, the executive's deference to the executive in foreign affairs. But facilitate. Yeah, everything you just said they ordered the to do. The only part of what the Supreme Court did that granted in part, the government's request was to the extent that the lower court had ordered that facilitated and effectuated his return by 11:59 last Monday evening. They said that date has passed. That part of the order to vacate that part is granted. Because that date's already passed. Right. That's the only part. And this is important because Stephen Miller later just flat out, in my opinion, lies about this in public statements. He might say he's parsing hairs, but that's the only part of what the government requested that the Supreme Court granted. Yes, we're vacating the part that was 11:59 on Monday, because that's over. So the lower court wasted no time. Within hours of getting this back from the Supreme Court, the court did clarify what she meant. And this is Judge Paula Zenas out of the District of Maryland. She clarified that. What she meant was she amended her order to, quote, direct that defendants shall take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible. And then consistent with the Supreme Court's directive, and she quoted it in her brief order, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps based on that. Judge Zenas then directed the government to answer three questions and to file a declaration by the next morning. She originally said 9:30 the next morning, answering three questions. One, the current physical location and custodial status of Mr. Abrego Garcia, two, what steps, if any, the defendants have taken to facilitate his immediate return to the United States. And three, what additional steps the defendants will take and when to facilitate his return. Right. She says, if you need to file under seal, you file under seal. So this is all still happening on Thursday evening. The court then says, I'll have an in person status conference on Friday at 1pm in the courthouse. So next morning, government doesn't get this 9:30 declaration. She wants a declaration from somebody with personal knowledge who can answer that question. Let's take a tiny pause here to talk about what a declaration is. A declaration is really a substitute for having a witness come in and sit in the witness stand and raise their right hand and take an oath to tell the truth and get asked questions. It's a way to do this on the papers where the government official, you know, puts in writing a declaration and signs it under oath. Right. They're saying, I'm swearing to these things. So it's sort of like the paper equivalent of in person testimony. It's just that you can't have A back and forth with a piece of paper. Right. You can only just take what is on there.

[Mary McCord]

Yeah. And it very often there'll be lots of follow up questions that you'd want to ask and it sort of ducks the issue or it uses. This is like, this is going to be the example you're thinking of. It uses language that is just so ambiguous that you immediately are going to be like, well, what do you mean by that? So can I just, you know, we're going to get into this sort of very detailed TikTok but so I'm going to play dumb here, which is, here's the thing that is not sort of legal niceties and oh, what exactly were the words and what's the difference between facilitate and effectuate? None of that matters because here's the key thing that has not happened. The United States has not even said that has asked El Salvador for his return. Period. The end. I'm sorry, none of that has to do with state secrets, classified information, foreign policy. If you want to know the most limited thing that the United States could do to quote, facilitate, unquote, his return, how about asking, are you telling me that the President of El Salvador can show up in the Oval Office that the President of the United States can talk about, oh, I need you to build five more prisons because I want to put Americans if legal in these prisons that we're paying by all reported accounts to have these people housed. That we are both sending people and getting people back when when El Salvador says, you know what, we won't take those and we are even sending Kristi Noem there and she is able to do a sort of promotional video, let's just say a video in front of the jail that you're saying that somehow the President can't even ask and that wouldn't be honored. That is cutting through all of this sort of like, oh, there conceivably could be limits on what a court could order. They're not even saying they asked for his return and obviously that would be the end of this because if they asked it would happen. Unless there was a wink to say, I'm going to ask and I want you to say no.

[Andrew Weissman]

Yeah.

[Mary McCord]

So that is why all of this is just such crap. How's that for a legal term that the Supreme Court of the United States has said you are directed to facilitate his return. And they, the United States government will not even tell the district court that it is asked for his return. Big picture, a person is in jail. Wrongfully. The government has admitted not Just in the district court. But the Supreme Court papers from the government said they agreed that this was a mistake. So he is there because of a United States mistake. And they will not even say that they have asked for his return after causing it themselves. I mean, this. It's so. It's so impossible to fathom not just the lawlessness, but the cruelty in that.

[Andrew Weissman]

Case, just like we talked about last week. Right? The cruelty. This is a human being married to a U.S. citizen with U.S. citizen children, been here since he was a teenager, since 2011. The Record is clear. When you go back through immigration proceedings, he fled because of gangs threatening him and his family. His mother sold papusas out of the house, and that's why he came to the United States. I mean, this is what is in the record. So the record of his immigration proceedings, not even the record of this particular incident. So to the point of what is the government saying? So first thing they do Friday morning is saying, judge, this is unreasonable and we can't possibly meet this 9:30am deadline. So she says, okay, 11:30. 11:30 comes and goes. There is no declaration. But of course, an attorney does show up in Court at 1pm and he can answer no questions. He cannot even answer the question, where is Mr. Abrego Garcia? Because we've all assumed he's at SECO, the terrorist detention center in El Salvador. But no one had ever confirmed that. Right.

[Mary McCord]

And there's a concern about is he there and is he alive?

[Andrew Weissman]

Exactly right. So the attorney couldn't answer that. Something that the court called, you know, a pretty simple question, couldn't answer questions about any efforts to facilitate return, couldn't answer any of that. So the court then put out a new order, said every day now by 5pm Starting with tomorrow, Saturday, you're going to give me a declaration by a government official with personal knowledge, meaning not something they heard from somebody else, but somebody who has personal knowledge. Answering these three questions or attempting to answer these three questions, you're going to do that every day. And then we'll have a hearing on the 15th, which is today.

[Mary McCord]

And Mary, just to the point of the timing, her scheduling, one of the things she pointed out is that, you know, it's been some time since her initial order.

[Andrew Weissman]

That's right.

[Mary McCord]

And those orders, there was a time period where they had not been stayed. And so presumably the government is finding out what the ultimate facts are. And in other words, it didn't have the luxury of saying this has all been stayed for all of that time. And so she was like this isn't, like this is taking you by surprise. And it wasn't like there was an order that had been stayed this whole time that you didn't have to worry about it. It's like you would be prepared for this. I mean, it's just something that you would know. This in many ways is remember, this is the case where the attorney who first showed up for the government is no longer on the case.

[Andrew Weissman]

The one who admitted that Mr. Abrego Garcia had been wrongfully deported because he had a court order from 2019 saying you cannot be removed to El Salvador.

[Mary McCord]

And just, you know that in the Supreme Court. It's not just him in the Supreme Court, the Reef also conceded the improper and didn't in any way say that.

[Andrew Weissman]

So this is what I've said in my Washington Post op ed is just like a cat and mouse game. So on the 12th, yes. We get a short three paragraph declaration by an official at the Department of State, the career State Department attorney. He's able to answer one question. He says, it is my understanding, based on official reporting from our embassy in San Salvador, that Abrego Garcia is currently being held in the terrorism confinement center in El Salvador. That's what we all assumed. Right. He is alive and secure in that facility. He is detained pursuant to the sovereign domestic authority of El Salvador. Okay, what does that mean? Does that mean El Salvador has now said, we have charges against Mr. Abrego Garcia and we're holding him in this facility under as yet non public and unrevealed charges against him. That of course had nothing to do with how he ended up there? Is that what they mean? Or do they mean under the domestic sovereign authority of El Salvador, we could enter an agreement with the United States to house people that you send here and that's the authority we're exercising. We don't know the answer to that. And those mean two very different things when it comes to what steps the government should be taking to facilitate the return. Both still are certainly capable of facilitating the return. But one means, hey, you're housing him under a contract with us. Give him back. That's pretty easy. The other is you're claiming you have certain authority over him. Would you please give him back? Because we shouldn't have sent him to you to begin with. Right, Right.

[Mary McCord]

So that was sort of the ambiguity of that statement Saturday. Exactly.

[Andrew Weissman]

So Sunday we get another brief. This one is a few more paragraphs, eight paragraphs. But most of the beginning paragraphs are just describing who the person is making the Declaration. This is now an assistant director for removals within DHS's ice. And he says Mr. Abrego Garcia is a native and citizen of El Salvador. He says he was removed to El Salvador pursuant to Title 8 of the US Code. Title 8 is where the Immigration and Nationalization act is. And so most people who go through deportation proceedings with the due process you talked about, Andrew, it's under the provisions of that act. He didn't have those proceedings before he was sent out of the country. Right. And then he says, although Abrego Garcia has an order of removal issued by an immigration judge, I understand that he should not have been removed El Salvador because the immigration judge had also granted Abrego Garcia withholding of removal to El Salvador. That's the technical. You can't take him there. But then here's the kicker. I also understand that Abrego Garcia is no longer eligible for withholding of removal, meaning no longer eligible to not be deported to El Salvador because of his membership in MS.13, which is now a designated foreign terrorist organization. Okay, what does that mean?

[Mary McCord]

Okay, so there's so many issues with that because this is the effort to change history.

[Andrew Weissman]

That's right.

[Mary McCord]

And there's a legal component and there's a factual component. One, legally, if the government wants to claim and prove that he is a member of Ms. 13, there is a completely lawful way for them to do that. They could have gone back and said to the immigration courts that the initial order prohibiting his removal needs to be changed because of changed circumstances. And that actually came up in the district court initially where they said, we agree that we could have done that, and we didn't do that, and we didn't do it. And this is the factual component. There was no evidence presented in the district court or the court of appeals on the issue. No evidence that he has ever been charged with or convicted of a crime. And the fourth Circuit said that the government presented no evidence. There's a quote, the government presented no evidence of MS.13 affiliation and in fact, said that that argument was sort of abandoned before the court. So again, there's no record evidence of this. I want to be fair to the government here. If they had such evidence, there is a lawful way for them to proceed. And also, this is one where I want to make sure people understand, let's assume he was a gang member of MS.13. Let's assume that he's entitled to due process.

[Andrew Weissman]

This is rule of law. This is the point we keep making, right? Week after week. You don't just do what you want ignore the law? You follow the law.

[Mary McCord]

Exactly. In this country, you don't get to say, oh, you know what? We think this person's guilty. Off with their head.

[Andrew Weissman]

That's right.

[Mary McCord]

Trial to follow. That is the claim here because they allege without any hearing and without any proof that he is now an MS.13 gang member, something they did not claim, that somehow that he is not entitled to process. The Supreme Court in its prior ruling, the one from Judge Boasberg on the Alien Enemies act, refuted that and said those people are entitled to pre deprivation hearings. And that is the point of the rule of law. So it's both factually highly questionable and also legally irrelevant. That's right. It may as a publicity political matter, sort of small p be useful for the administration to try and rebrand Mr. Garcia. But here's my one final piece before we break, which is for the United States government to be saying that when you have the Attorney General of the United States sitting in the room and living with that and thinking because he's somehow a gang member, he's not entitled to due process, it flies in the face of the Supreme Court ruling and the oath of office you take to.

[Andrew Weissman]

Take care that the laws be faithfully executed. Yep.

[Mary McCord]

Okay. That is a great break. Okay.

[Andrew Weissman]

Okay.

[Mary McCord]

Am I too triggered?

[Andrew Weissman]

Yes.

[Mary McCord]

Okay.

[Andrew Weissman]

Yes. We're going to take a deep breath, Deep breaths.

[Mary McCord]

Okay. We're going to take a break so that everyone who's listening and especially me who's participating, can sort of calm down.

[Andrew Weissman]

All right.

[Alex Wagner]

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[Andrew Weissman]

I do think it's worth being very clear eyed, very realistic about what's going on here.

[Alex Wagner]

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[Mary McCord]

So, Barry, there's more. More. It's sort of amazing, but yesterday there was both an Oval Office meeting that we've talked about between the President of Salvador and the President of the United States, attended by many, many senior government officials. And there also was a new filing in the district court, one of the 5:00pm every day.

[Andrew Weissman]

Got to try to answer those three questions, right?

[Mary McCord]

Yeah. Is there a spoiler alert that question's not answered?

[Andrew Weissman]

Yeah. What do you think? Yes. So this time, you know, there was reporting, of course, that came out before 5pm about this white House meeting. And as you already indicated up top, know the big upshot of that meeting, it was not in front of the cameras where President Trump said to the president of El Salvador, hello, we mistakenly sent you Mr. Abrego Garcia. We would appreciate if you would return him. That did not happen as you indicated. But some amount of what did happen, in addition to being reported in the press, was part of the 5pm filing yesterday. This time the filing is from a new person. This is a person who is the acting general counsel at the Department of Homeland Security. So somebody you'd think would want to be very careful about what he is saying in a sworn declaration. And I guess he is careful. It's just not particularly helpful. He says at one point that DHS does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation. Again, begging this question, what does it mean? Or is El Salvador trying to say we're actually holding him honor our own authority? Because certainly that's not something that the Salvadoran president said to President Trump yesterday in the Oval Office. He then goes on to say that there was this bilateral summit in the Oval Office between the two presidents yesterday. And here is what he says about that. I understand that in response to a question regarding Abrego Garcia, President Bukele said, quote, I hope you're not suggesting that I smuggle a terrorist into the United States. How can I smuggle a terrorist into the United States? Of course I'm not going to do it. The question is preposterous. Now, this was a question not from President Trump, but from a member of the press. So certainly there's nothing about that statement that says we are holding Mr. Abrego Garcia under the authority of the government of El Salvador because he's being charged with thus and such crime. He did not say that. He basically suggested, how could I bring him back myself when I haven't been asked because I would have to smuggle him in. He doesn't say that when I haven't been asked. But why would you be talking about smuggling him in if the government of the United States had, in accordance with the Supreme Court and the district court's directions, sought to facilitate his return?

[Mary McCord]

Exactly. And so this was the you have the President of El Salvador pointing a finger, saying, look at him, the President of the United States. And you have the President of the United States saying, well, we can't do anything because he's being held by El Salvador. I mean, this was just the Alphonse Gaston. And I mean, it's, it is so laughable. And like, I mean, this really is assuming people are just morons. El Salvador saying, I can't just bring somebody into the United States because the United States has complete authority over that. And then you have the United States saying, well, this person is being held by El Salvador. We have nothing to do with it. In the same meeting, the same meeting where it's obviously a consensual meeting, where there is obviously mutual understandings going on and they have the president talking about how he wants to use El Salvador to build more prisons to house more people, including Americans. That would suggest a level of control and persuasive authority. And as I said, he hasn't even asked to have Mr. Abrego Garcia returned. So this is just. If it weren't so serious, I mean, it's just a joke. And then let's talk about the rebranding because there are various statements that have been made. And I'm going to read from one, which is from Kristi Noem. And then, Mary, I'll turn it over to you to talk about Stephen Miller. So just to be fair, I'm going to read the whole quote from Secretary Noem.

[Andrew Weissman]

And let's also add, even though these quotes were originally made in other media, DHS put out a press release in order to put all these quotes in one place. It was an. In case you missed it, DHS sets the record straight about Kilmar Abrego Garcia.

[Mary McCord]

Right. This is from the Department of Homeland Security itself putting this out. So these are adopted by the government. And so for people who don't know, Secretary Kristi Noem is the secretary for the Department of Homeland Security, dhs. And this is the quote. This is just one of those examples of an individual that is an MS.13 gang member. Multiple charges and encounters with the individuals here, trafficking in his background was found with other MS.13 gang members. Very dangerous person. And what the liberal left and fake news are doing to turn him into a media darling is sickening, unquote, said Secretary Noem. So again, there was. I just want to sort of not be triggered by this and make sure people understand one. It is remarkable to me that even if what you were saying is true, that does not mean that he's not entitled to due process. The Supreme Court of the United States actually has ruled on that issue of what people are entitled to in terms of a pre deprivation hearing. And they conceded that they have the legal ability to do all of this. And I, I just, I keep on hitting this because I, I don't want people to think, oh, it's only because he's somehow innocent and he's not a gang member, that this is an issue. That is why it has taken on a sort of life of its own. And it's such a useful point and news story. But it is just as pernicious, maybe even more so, when somebody is in fact charged with a crime and maybe in fact be guilty. That is not how our system works. This again goes back to John Adams representing accused British soldiers in the 18th century. That is what it means to be a rule of law country. It's making sure that you apply the rule of law when you have particularly heinous or unpopular person. But the second is these spurious allegations have not been proven.

[Andrew Weissman]

That's right.

[Mary McCord]

There's no factual record for this.

[Andrew Weissman]

There's no multiple charges against Mr. Abrego Garcia. There's been zero criminal charges against him.

[Mary McCord]

Exactly. And this is one where again, there is a forum, if the government has that proof, to present it and to go forward with that. But you would think if you did have that proof, that it might have been represented and put forward at the district court or court of appeals level. And instead, to make sure people understand, the 4th Circuit noted there was no evidence presented of Ms. 13 gang membership by the government. And so it is both legally irrelevant in this proceeding, but it is also contrary to the factual record in this proceeding.

[Andrew Weissman]

Okay. Stephen Miller, right. White House Deputy Chief of Staff. Talk about the rebranding. Now, I alluded up at the top of the podcast to Stephen Miller, at best parsing splitting hairs, but at worst just outright lying about the Supreme Court's ruling. Again, this is about a narrative that they want the American people to believe. Here's what he said. The Supreme Court said the district court order was unlawful and its main components were unlawful. And reversed 90 unanimously stating clearly that neither the Secretary of State or President could be compelled by anybody to forcibly retrieve a citizen of El Salvador from El Salvador, who again is a member of Ms. 13, which, as I'm sure you understand, rapes little girls, murders women, murders children, is engaged in barbaric activities in the world. And I can promise you, if he was your neighbor, you would move right away all Right. Let's set aside the second half of that because you've already told us all about the fact that there's just no proof in the record of that.

[Mary McCord]

Right.

[Andrew Weissman]

The first part, again, the Supreme Court made clear that the district court had properly ordered that the government should facilitate the release of Mr. Abrego Garcia from custody in El Salvador, and that should ensure that he has the process he would have been due before he ever was sent there. That is what they did. By all accounts. 90 no noted dissents. The only thing that they said was when it comes to effectuate, clarify what that means with due regard for executive authority over foreign powers. So maybe he can, you know, Stephen Miller would say that's what I meant when I said that the Supreme Court 9o said that the Secretary of State and president could not be compelled to forcibly retrieve a citizen. Okay. I'm going to give him the benefit of doubt on that. But there is no way you could say that the district court order was reversed 9 to 0 or that its main components were unlawful, because that is just not the truth. It's not what the Supreme Court order. But here, this is what people are consuming. When he's saying this to the press, putting out press statements, you know, going on different television stations and otherwise to say that I saw a headline that he is claiming that the first attorney who ever told the court in candor that it was a mistake, that Mr. Abrego Garcia had been sent to El Salvador, that he said that that was sabotage from a DOJ lawyer. So this is the extent to which Mr. Miller is going to sort of create a different narrative here. So what do we do about it before we transition out? Let's. Let's get practical here.

[Mary McCord]

Mary, I was going to ask you, what are you looking for? Because there's going to be a hearing coming up today. I know you wrote about it. And if you were the district court, what would you do here? What's the upshot? That's the key issue. That's right. What should people look for? What would you do? Right.

[Andrew Weissman]

So there's a couple things going on here. One is she's trying to get answers to her questions because she and the Supreme Court have said you've got to facilitate the return. So one is I need those answers. And the second is if you're not giving them to me and he's not being returned. Government. Are you in contempt of court? Right. Are you now in violation of the court's order?

[Mary McCord]

Ceg Judge Boasberg, I mean, just so you know, everyone needs to know. Judge Boasberg is currently wrestling with that. We're waiting for a decision from him.

[Andrew Weissman]

That's right. So the first thing I would do if I were her is I would say I don't need declarations anymore because you're not answering my questions in these declarations. All you're doing is frankly raising more questions. And it appears that you're essentially making up things as you go along, making up new reasons that we had never heard before you started filing these. And second, I want somebody here, government, somebody here from the Department of Homeland Security, from the Department of State who has been personally involved in the efforts to facilitate the return of Mr. Abrego Garcia. I want them here to testify in court. Now, to those listeners who are saying, can she order that? Well, she can order it in this sense, saying, that's who I need to hear from. And if you don't, then you will be in contempt because you have not shown me that you're complying with the court's order.

[Mary McCord]

I totally agree. I actually was on with Jen Psaki this Sunday and made a similar point, but much, much less cogently and inarticulately compared to your really terrific piece in the Washington Post, which I highly commend. Again, it's in our show notes Mary. Let's assume that the government does what it continued to do, which is the person doesn't show up and instead a lawyer shows up. They don't have personal knowledge. They don't even answer the question of have you asked for his return? I mean, the most basic, to me, that's like the most. I keep, I'm being a dog with a bone. But, like, how about that question?

[Andrew Weissman]

Yeah.

[Mary McCord]

Because of course it would be complied with. I mean, you really, like, Donald Trump likes to think he's the most powerful person on the planet. He's busy effectuating all sorts of economic policy that's, let's just say, controversial.

[Andrew Weissman]

Yes.

[Mary McCord]

And to influence countries to do things and not do other things. And yet, like, here's just a question of have you asked for the return? So let's assume this. I know lots and lots of people have asked me this question. You, this question. We get it to our podcast. Let's assume the government doesn't comply.

[Andrew Weissman]

I mean, there are a variety of options. None of them are great, though, to be honest. Right. I mean, there are sanctions that can be imposed because of the contempt because of the refusal to follow the court's order, the refusal to either facilitate or provide information about efforts to Facilitate those sanctions can include fines against the government. They can include fines against individuals. They can actually also involve imprisonment. And so there's a sort of an escalating set of sanctions. And we've certainly seen this in the past in other cases. I will say the courts, particularly at the higher levels, can be rather hostile to some of what lower courts will sometimes order as sanctions when they are the ones dealing, you know, one on one with the government if the government is obfuscating and not being cooperative and following a court's order. So this is where we get into the. I mean, it's not that there are no remedies, that's for sure, but it is true that the government would not be able to, like, order El Salvador to return him or, you know, order if he's not under US Authority or, you know, order things that would tread too far, as the Supreme Court said, into foreign relations. The problem is that gives the government wiggle room here. And that wiggle room is exactly what they're taking with all this wiggling around in every declaration.

[Mary McCord]

But to be clear, to go back to some things that they can do, this is something that can be found to be civil contempt, that is contempt of a judge's order. The judge then can use the refusal to answer as an inference against the government in terms of finding facts. And just as an example, we saw that with Judge Beryl Howell in the Rudy Giuliani case where he violated multiple discovery orders. And so they were sanctions that included findings against him because he hadn't complied. So they can use it in the case. They can also, as you said, impose fines on the government. If the contempt is found to be personal, they can impose it on the person. They can also, if it's serious enough, they can actually impose jail as a civil contempt remedy. The idea is that you jail somebody until they comply with the order. And that is something that can be ordered if a judge finds that. I actually dealt with that a lot when I was dealing with organized crime work as a government prosecutor and dealt with the sort of various issues that come up when a mobster refuses to testify without a valid privilege. There can be fines, there can be jail terms. And then if it's a lawyer who's doing this, there can be ramifications in terms of their bar license with referrals. So there are tools in the arsenal. It is just so rare to see when you're dealing with the government. That's right, because the government has an obligation, obviously, as an oath of office, they have a duty of Candor, as the Chief justice has said. I mean, you know, a court order is, you know, is something you comply with, and then if you disagree with it, you can appeal it. So we may again get to that, because we're dealing with the same thing before Judge Boasberg. So this is a good segue to speaking about the Judge Boasberg case, because people remember that the decision from the Supreme Court there that said these people are entitled to a due process hearing before the deprivation, that is, before being removed. But the issue that the court split on was whether it has to be habeas or whether it had to be the Administrative Procedures act and said it has to be done by habeas. Well, what happened? What happened was the plaintiffs read that and complied with it.

[Andrew Weissman]

Filed habeas.

[Mary McCord]

Exactly. So they filed habeas in New York and in Texas. Why in those two locations? Because that's where the plaintiffs were that were being represented.

[Andrew Weissman]

The original five plaintiffs.

[Mary McCord]

Exactly. So two of the plaintiffs, because they had counsel, were able to be taken off the plane and didn't end up in El Salvador. And so they were housed in. Are housed in New York. So the habeas was filed in New York, and the judge there, what did he do? He issued a stay the tro.

[Andrew Weissman]

Like, you cannot deport these people. He issued a class certification, too. Not for the nation, but for anybody in the Southern District of New York who's either currently in detention or will be in detention, cannot be deported without notice and opportunity to be heard.

[Mary McCord]

Right. Which is totally in compliance with the Supreme Court's decision.

[Andrew Weissman]

Exactly.

[Mary McCord]

And you know what people were thinking when that decision from the Supreme Court came down? Oh, it's a ruse to get it to Texas. And you know, that's a favorable venue for the government. Well, guess what happened, Mary, when the habeas was filed in Texas.

[Andrew Weissman]

Temporary restraining order, Class certification applicable there in the Southern District of Texas. I think it was the Southern District. Brownsville. Yes. That's about almost as far south as you can go.

[Mary McCord]

Yeah, same thing.

[Andrew Weissman]

Temporary restraining order. You cannot deport these people without notice and an opportunity to be heard. I will also say both judges ordered. They can't be transferred either without notice. An opportunity be heard so that you can't pull some shenanigans is like, okay, we're not going to give you notice in New York, so we're going to quickly transfer you someplace else. So that it's almost like a whack, a mole anytime we transfer you. As soon as you file habeas there. Oh, you're not there anymore. Right. So it's kind of like don't move these people until they get hearings. That was like the next day after the Supreme Court, too. It was so fast.

[Mary McCord]

This is good news in terms of what you are seeing. I want to make sure people understand this is you are seeing judges across the country, judges appointed by, as we've talked about on this podcast, judges appointed by Democrats and Republicans, including judges appointed by Donald Trump, upholding the rule of law. And so there is good news here in terms of what the courts are doing in terms of upholding what's going on. But it is a real sign of where the administration is that you're seeing this sort of uniform, almost uniform sort of resistance to the law breaking. Okay, Mary, shall we take a break and come back and talk about the Department of Justice and briefly sort of outline some things that have caught our attention but haven't really hit the larger media sufficiently and we want to make sure that our listeners are attuned to this.

[Andrew Weissman]

Sounds good.

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[Mary McCord]

Mary, one of the things that you highlighted when we first started and has gotten a little attention but not a lot, is an environmental case that the Department of Justice brought that has now been scrapped. What was that case about? And what is the current department doing? And this might, by the way, fall into the category of it's lawful, meaning that the department has the discretion to do this. But as a policy matter, we want to flag this because many of our listeners may think this is really outrageous.

[Andrew Weissman]

Yeah. So back in 2021, the Department of Justice and the Department of Health and Human Services launched an investigation into whether the Alabama Department of Public Health conduct violated civil rights laws for discriminating on the basis of race in terms of federally funded programs in this majority black county in Alabama that was facing public health threats from the fact that raw sewage would back up into their yards because of the lack of adequate sanitation systems and drainage systems. Given the heavy clay content of the soil there, and anybody who's ever lived anywhere where your soil is clay, you know exactly what I'm talking about. Water doesn't go through it easily. And the public health consequences of this was why the Department of Health and Human Services was part of this investigation. That investigation resulted in an agreement with Alabama's Department of Public Health to put certain resources into sanitation systems there and to also not criminalize people living in the county who were doing their best to kind of rig up methods of getting the waste out that they had actually been, in some cases, prosecuting people for, like, creating these systems that they needed to do to try to, frankly, keep themselves safe. So it was a first of its time interim resolution agreement. It came out to a lot of publicity when this agreement was reached. And what we got on Friday was the Department of Justice announcing that it will immediately close what they deemed an environmental justice matter. And I will say the previous DOJ also called it an environmental justice matter. That's not just something that this administration came up with, but I think it's extraordinary what the newly confirmed Assistant Attorney General for Civil Rights at DOJ had to say about the termination of this agreement. Remember, this was an agreement. It wasn't a court order that they had gotten. This was an agreement with Alabama. He said the DOJ will no longer push environmental justice as viewed through a distorting DEI lens. President Trump made it clear Americans deserve a government committed to serving every individual with dignity and respect and to expanding taxpayer resources in accordance with the national interest, not arbitrary criteria. Now, we could spend an entire segment talking about what it means to treat individuals with dignity and respect. I'll just say having raw sewage backing up in their yards and their houses is not dignity and respect. And the type of programs here are not DEI programs. But that's the label being put on it, and it is now gone. I will say one happy thing. Alabama Department of Public Health says they are still going to try to do what they had promised to do under this agreement.

[Mary McCord]

And where governmental action or private action is disproportionately affecting people of a certain race, ethnicity, sex, class, that does not make it a DEI matter. That is something that is still evenhanded. There's so much more to say about this, but I wanted to relate this to something that has just happened, which is the continued tack on academic institutions. This is, by the way, not an original point. I'm going to give a shout out to Lawrence O'Donnell, who noted this on his program last night. And I thought it was just an excellent, excellent point. The government's letter to Harvard basically saying that it is going to take steps with respect to its funding if it does not agree to a whole series of steps that basically have, I mean, this is not hyperbole, a takeover of the government of who it hires, who gets promoted, what roles they have, what students they admit. Yeah. What powers they have. I mean, just a wide attack on academic freedom. The letter itself says it's an attack and says we don't believe in diversity and DEI has to be eradicated at the same time that it says we want diversity when it comes to diversity of conservative viewpoints. Right. So viewpoints diversity is fine if it helps, you know, MAGA Republicans, but apparently not okay if it's not the diversity that they value. The argument for diversity, one of them at universities, is exactly that. That sort of confluence of viewpoints and experiences is valued and necessary and is taken into account. And as the Supreme Court has said, it is legal and lawful to be considering the background and experiences of every applicant. And so a black applicant can talk about their own experience in the same way that any white applicant could. That's sort of the example that was given by Ketanji Brown Jackson that the court agreed with. And so this is one where that hypocrisy is on the face of, of the letter and is really, you know, a dog whistle, if not a, you know, megaphone on this issue of race and xenophobia that's going on in the administration. We have a lot more to, I think next week we're going to really try and dig deeper on what is happening with academic institutions and talk more about the specific measures that are being proposed with respect to Harvard. We'll have more about the litigation that is going on.

[Andrew Weissman]

They have now sued for a tro. They said we're not doing that. And so they sued. And Trump came back saying we're freezing $2 billion in funding to Harvard. And that's where that standoff is.

[Mary McCord]

And.

[Andrew Weissman]

Yeah, exactly. Much more on that next week. This saying the quiet part out loud, you know, this is a theme and we're not going to have time to get fully into it. But, you know, I mentioned at the top of the hour, we've now seen the first executive orders directed solely to a person. Now, there have definitely been people mentioned in other executive orders directed at law firms, people who had worked at those law firms, who President Trump perceives as political enemies. That were a major reason why he targeted those law firms. And in fact, we've had another targeting and another executive order of a law firm this week, or I guess it was late last week. That's Sussman Godfrey. They have now filed their motion for a TRO that's being heard today, I believe, in the district court in the District of Columbia. I suspect that one will turn out exactly like the other three, which is in a tro. But we've seen now targeting of two individuals sort of by name, Miles Taylor and Chris Krebs. Both were former DHS officials under Trump. 1 Miles Taylor ended up writing a book about his experience, and that's why the president is so against him. Chris Krebs, who was head of cisa, the cybersecurity and infrastructure security agency within dhs. One of their jobs is to provide support to elections, state and locals who do the actual putting on of elections around the country. But they provide a lot of cybersecurity support. One of the things that Chris Krebs had said after the 2020 election is this is the most secure election we've ever had. And there's, you know, no evidence of sort of like foreign interference or hacking in and changing votes or anything like that. That earned him a firing by Donald Trump during Trump 1 and has now earned him, along with Miles Taylor, a targeted executive order targeting them directing security clearances be remote, but also directing investigations of their conduct. Not clear exactly what type of investigations those are, but of their conduct to see if they mishandled classified information. Of course, that would be a criminal offense or could be a criminal offense. It doesn't have to be. Or other things they might have done. And I will note with respect to Miles Taylor, the president actually, I think, refers to treasonous conduct in his opening preamble paragraph. So this is just terrible to be targeted this way. It's such a violation of constitutional rights. And arguably it's like, you know, an ex post facto type of law, which we usually think of something that Congress can't do. But I think the principles there would also apply to executive actions. So so much more on the retaliation and retribution front that we do want to get into. But we have been talking for a really long time and we're just going to have to come back to these things. It's that they're not important because they're very very important.

[Mary McCord]

There's only so much we can cover in all of this time. My only comment on Chris Cribbs and Miles Taylor, whose names may not be sort of front of mind for our audience, is that there's, to my mind, there's a reason that they were selected because they were, as you said, part of Trump 1.0. And the message is, if you disagree with my policies, if you push back on my policies, if you don't absolutely toe the line and parrot what I am saying, this is what you can expect. So it really is sort of the interim effect. You see it with respect to these executive orders, the ones on law firms, the ones that are dealing with academic institutions. I mean, this is really important for people to look at this as a whole in terms of the strategy here.

[Andrew Weissman]

Just before we close, there's one more act of retribution this week that we at least have to mention I mentioned at the top, but we can't get into it, which is the Associated Press sued after it was deprived of its privileges to be part of the press pool that covers things that happen in the Oval Office and on Air Force One and elsewhere. A judge in the District of Columbia, D.C. district Court agreed that this was not only viewpoint discrimination but also First Amendment retaliation, ordered that the AP not be discriminated against. The government sought a stay of that. The judge said, I'll give you a stay until this Sunday. That was just two days ago in case you're going to appeal. The government has appealed. They sought a stay in the Court of Appeals. The Court of Appeals has not granted that stay. That means the stay expired on Sunday, which means the ap, the Associated Press, and again, this is in retribution. And the judge was clear about this in his order. This is in retribution or retaliation, I should say, for refusing to call the Gulf of Mexico, the Gulf of America. That was the reason for this. The stay is no longer in effect. However, the D.C. court of Appeals and this is somewhat unusual to have an oral argument on a stay motion. They are having argument this week on Thursday on that. Right now the stay is not in place. Nevertheless, my understanding from public reporting is that the Associated Press was not provided access to the Oval Office yesterday when other reporters were.

[Mary McCord]

So that would be. That appears to be a violation of the order. One note that is positive to end on is that the district judge who issued this order was appointed by Donald Trump in the first administration and is an example of what we were talking about, which is that judges sticking up.

[Andrew Weissman]

For the rule of law.

[Mary McCord]

Exactly. With that. Thanks everyone for listening. Remember, you can subscribe to MSNBC Premium on Apple Podcasts if you want to get this show and other MSNBC originals ad free. You'll also get subscriber only bonus content. To send us a question, you can email [e-mail] and remember to vote for.

[Andrew Weissman]

Us in this year's Webby Awards along with our sister podcasts Into America. And why is this Happening? Check out our show notes for how to vote for each podcast. Voting ends this Thursday. This podcast is produced by Vicki Virgolina. Our associate producer is Jamaris Perez. Our audio engineers are Mark Yoshizumi and Bob Mallory. Our head of Audio production is Bryson Barnes. Aisha Turner is the Executive Producer for MSNBC Audio.

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