The Dictatorship
Supreme Court says Trump officials must ‘facilitate’ release of wrongly deported man
The Supreme Court said Thursday that the Trump administration must “facilitate” the release of a man the government admitted it wrongly deported to El Salvador, sending the case back to the judge who ordered his return for further clarification of her order and leaving the ultimate fate of the case unclear.
After the Trump administration admitted that it had wrongly deported Kilmar Abrego Garcia to El Salvador, a federal judge in Maryland had ordered the government to “facilitate and effectuate” his return by 11:59 p.m. Monday, April 7. A federal appellate panel declined the administration’s request to halt the judge’s order, but Chief Justice John Roberts temporarily granted the request on the afternoon of that midnight deadline, pending further word from him or the full high court.
That word came Thursday with an order that said the judge had properly required the government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. But the order also said that the “intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority,” adding: “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 what it can concerning the steps it has taken and the prospect of further steps.”
In statement accompanying Thursday’s order, the court’s three Democratic appointees said they would’ve declined to intervene in this litigation and effectively held the government to the judge’s directive.
“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 had he not been unlawfully removed to El Salvador,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “That means the Government must comply with its obligation to provide Abrego Garcia with ‘due process of law,’ including notice and an opportunity to be heard, in any future proceedings.”
“In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law,” Sotomayor added, with “remand” referring to the process of a case being sent back to a lower court.
The justices are assigned to field emergency litigation from different geographical regions across the country, and this one from the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals went to Roberts. When justices receive such emergency applications, they can rule themselves or refer matters to the full court for decision. Significant matters are typically decided by the full court, though the relatively short timeline on the day he issued the temporary relief could have motivated Roberts to act alone.
The court was also busy with another case that day, which became apparent later on Monday when the high court split 5-4 in a separate appeal to grant the Trump administration emergency relief in its use of the Alien Enemies Act to conduct deportations. Dissenting in that caseSotomayor cited Abrego Garcia’s then-pending case to warn about the dangerous nature of the government’s position that it doesn’t have to return erroneously deported people. “The Government’s resistance to facilitating the return of individuals erroneously removed to CECOT [El Salvador’s Center for Terrorism Confinement] only amplifies the specter that, even if this Court someday declares the President’s [Alien Enemies Act] Proclamation unlawful, scores of individual lives may be irretrievably lost,” Sotomayor wrote.
Notably, the Supreme Court majority said in that case that people facing deportation under the Alien Enemies Act are still entitled to due process. In a filing to the justices on Tuesday, Abrego Garcia’s lawyers cited Monday’s Alien Enemies Act ruling in writing that, while his case doesn’t involve that act, the court’s due process protection in that case “supports Abrego Garcia’s position that the Government violated his due process rights by removing him to El Salvador.” They wrote that the justices’ unanimous insistence on due process “underscores that Abrego Garcia — who was removed without reasonable notice or an opportunity to challenge his removal before it occurred, and in conceded violation of a court order prohibiting his removal to that country — must have a remedy for this constitutional violation.”
In its Supreme Court application to halt U.S. District Judge Paula Xinis’ order ahead of her deadline in Abrego Garcia’s case, the government conceded making an “administrative error” in sending him to El Salvador. But it said that still doesn’t give district judges license “to seize control over foreign relations, treat the Executive Branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight.”
In the application, filed before the justices ruled in the Alien Enemies Act case, U.S. Solicitor General John Sauer said the order from Xinis, an Obama appointee, was “unprecedented” in “dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight.”
Justifying her orderXinis wrote thatthe government acknowledged it “had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador — let alone deliver him into one of the most dangerous prisons in the Western Hemisphere.” As to the government’s claim that he’s an MS-13 gang member, the Maryland judge wrote: “The ‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York — a place he has never lived.”
Opposing the government’s high court application, Abrego Garcia’s lawyers wrote that their client “has never been charged with a crime, in any country. He is not wanted by the Government of El Salvador. He sits in a foreign prison solely at the behest of the United States, as the product of a Kafka-esque mistake.”
Before winning temporary relief from Roberts, the administration failed to get the 4th Circuit to halt Xinis’ order. In separate opinionsexplaining their views, the appellate judges wrote that the government “has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process,” that the government’s contrary arguments are “unconscionable” and that there’s “no question that the government screwed up here.”
Subscribe to theDeadline: Legal Newsletterfor expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined BLN, he was a legal reporter for Bloomberg Law.
Several major U.S. law firms have bent the knee to President Donald Trump’s illiberal regime in recent weeks, reportedly committing millions of dollars’ worth of free legal services to help Trump’s administration pursue any number of their political goals.
On Friday, Trump announced that five more law firms made deals with his administration in the face of potential punitive action: Kirkland & Ellis; Latham & Watkins; A&O Shearman; Simpson Thacher & Bartlett; and Cadwalader, Wickersham & Taft.
In social media posts, Trump claimed the firms have agreed to provide free legal work for things like fighting antisemitism, assisting law enforcement and “ensuring fairness in our justice system.” It’s a rather vague list that seems to leave a lot of room for interpretation. Trump, for example, has used dubious claims of antisemitism to wield authoritarian power over college campuses, has routinely lobbed baseless allegations of voter fraud against liberalsand has vowed to address what he called a “definite anti-white feeling” in the country. So, given the descriptions of the work he has secured from these law firms, there’s certainly potential for him to ask them to assist with his antidemocratic ambitions for the executive branch.
The Guardian reported Friday that, in all, this announcement means Trump “has secured a total of $940 million in pro bono work from some of the most powerful law firms in the U.S.”
As my colleague Steve Benen noted recently, Trump has said the law firms he’s targeted did “nothing wrong,” essentially acknowledging that his efforts were about forcing them into submission more than anything else. And he’s clearly more than happy to have them at his disposal, to pursue all sorts of priorities. Trump has said he wants to use these law firms to aid his destructive trade warremarking several times this week that the law firms could be used to help his administration with trade negotiations.
During a Cabinet meeting Thursday, the president told reporters that his administration may be using lawyers at the firms to help agency heads because you’re going to need a lot of lawyers.” Mr. Trump said he would “try to use these very prestigious firms to help us out with the trade” because of the sizable number of countries with which the U.S. will be negotiating. On Wednesday, while speaking to reporters in the Oval Office as he signed executive orders, Mr. Trump said that the firms that entered into agreements to avoid being targeted by his directives have together committed at least $340 million in pro bono legal services and suggested that he could tap into that work as his administration prepares to engage in talks over tariffs he has threatened to impose on foreign countries. I think part of the way I’ll spend some of the money that we’re getting from the law firms in terms of their legal time will be — if we can do it, I think we can do it — using these great law firms to represent us with regard to the many, many countries that we’ll be dealing with,” Mr. Trump said.
I don’t imagine the firms Trump has essentially conquered are eager to spend their resources fighting Trump’s trade war, which is widely unpopular and has been denounced by economists for being rooted in shoddy logic. But this is the natural outcome of these law firms acquiescing to Trump.
I agree with former Attorney General Eric Holder, who in a recent interview with Rachel Maddow denounced these law firms as cowardly and rebuked many of them for refusing to stand alongside other law firms that are fighting the Trump administration’s authoritarian attacks on the legal profession.
These firms have essentially placed themselves at the whim of a wannabe kingno matter how petty, economically destructive or antithetical to democracy his ideas may be.
After Donald Trump’s victory in last year’s presidential election, several MAGA influencers cheered the prospect of him trampling on women’s rights. And Republican lawmakers have acted on that ethos with startling speed.
Democratic women sounded the alarm Thursday following the House’s passage of the so-called SAVE Actwhich would require all states to obtain proof of citizenship from people registering to vote, as well as mandate that states have a program to remove undocumented immigrants from existing voter rolls and allow Americans to sue officials who don’t follow the proof-of-citizenship requirements. Voting rights activists have condemned the measure as a voter suppression billsaying it requires documents that members of marginalized groups, particularly nonwhite people, disproportionately lack.
And critics have also said the law runs the risk of disenfranchising women who marry and then change their last name.
“The House just passed the Republican voter suppression measure that threatens voting access for millions of Americans, including 69 million women whose married names don’t match their birth certificates,” Hillary Clinton noted on X.
“Make sure your senators know you expect them to stand against it,” she wrote.
Rep. Alexandria Ocasio-Cortez, D-N.Y., posted a similar message, warning that the legislation risks disenfranchising millions of women.
As did Rep. Shontel Brown of Ohio.
“The SAVE Act is yet another Republican attack on women,” she wrote.
“This bill would make registering to vote extremely difficult for millions of women who have changed their name, including over 2 million Ohioans.
“It’s a propaganda bill that creates problems instead of solving them. #HellNo.”
Conservatives have essentially tried to downplay the impact of the changes if the law is enacted. Sen. Mike Lee of Utah, for example, had an online exchange with Rep. Becca Balint, D-Vt., in which he noted that several documents would be allowed as proof of citizenship — seemingly ignoring that requiring such a document would, in itself, constitute an added barrier for many voters.
And Balint checked Lee on that point.
“[Y]ou can show all the ‘fact’ sheets you want, but this is about practical implications,” she wrote. “If you changed your name, you will not be able to vote unless you jump through excessive hoops that require time, money, and travel if you live in a rural area.”
Fox News host Martha MacCallum also downplayed the suppressive effects of the legislation during an interview with Sen. Elissa Slotkin, D-Mich., saying: “I changed stuff when I got married; it’s not that hard to do that.”
As many have noted, the legislation faces an uphill battle in the Senate, where it’s likely to be filibustered if it’s ever teed up for a vote. But the fact this passed in the House shows just how committed Republicans are to misogynistic gender hierarchy and the prospect of tipping elections in their favor.
On Wednesday, President Donald Trump issued an executive order targeting another law firm in his retribution spree. Trump appears to be using these orders not only to punish lawyers for representing certain clients, but also to rewrite history. And the law firms that capitulate to his extortion are helping to advance the false narrative of election fraud.
The latest order targets Susman Godfried, a Houston-based firm whose primary sin appears to be representing Dominion Voting Systems in defamation suits relating to baseless claims of 2020 election fraud.
The latest order targets Susman Godfried, a Houston-based firm whose primary sin appears to be representing Dominion Voting Systems in defamation suits relating to baseless claims of 2020 election fraud. Susman negotiated the eleventh hour $787 million settlement that Fox News paid in 2023. The firm is also representing Dominion in defamation cases against Newsmax, as well as in cases against former Trump lawyers Rudy Giuliani and Sydney Powell. In fact, the executive order came on the same day a judge in Delaware ruled in favor of Dominion in its case against Newsmax. No one has ever accused Trump of subtlety.
Susman Godfried has vowed to challenge Trump’s action, stating on Wednesday“There is no question that we will fight this unconstitutional order.”
The order suspends security clearances for Susman’s lawyers, terminates government contracts, prohibits government agencies from hiring the firm’s employees, and bars them from federal buildings, a significant obstacle for lawyers handling cases in federal courts. But the order did more than punish Susman. Remarkably, the order also suggests that it is the law firm that has undermined election integrity. “Susman,” the order states, “spearheads efforts to weaponize the American legal system and degrade the quality of American elections.”
A fact sheet accompanying the order puts Wednesday’s action in context of a broader pattern of disturbing revisionism. Under the heading, “A RETURN TO ACCOUNTABILITY,” the order states, “President Trump is delivering on his promise to end the weaponization of government and protect the nation from partisan and bad faith actors who exploit their influence.” From the Oval Office, Trump bragged that many law firms have already paid hundreds of millions of dollars to resolve allegations in executive orders. He did not mention that the payments are coming in the form of in-kind pro bono legal services. And though none of the firms have admitted guilt, Trump said all of the law firms against whom he has taken action have been involved in “election misconduct.”
These allegations have no basis in fact, but the capitulation of major law firms like Paul Weiss, Skadden Arps and others creates the impression that Trump’s accusations are valid. Another five law firms entered into agreements with Trump on Friday to avoid becoming the next targets for punishment, agreeing to provide millions of dollars in pro bono legal services to resolve unsupported claims of misconduct in hiring practices to promote diversity. Their appeasement further advances the public perceptions that these firms must have done something wrong. After all, who would pay hundreds of millions of dollars to resolve a baseless claim?
By caving in to Trump’s demands, the firms may believe they are saving themselves, but they are in fact helping to advance Trump’s disinformation campaign. These firms, which Trump said have agreed to pay from $40 million to $125 million each, are allowing themselves to be used as pawns in Trump’s game to change public perception about his own legal troubles. He is characterizing the enormous payouts as concessions; proof that he has been a victim of what White House aide Will Scharf referred to as “lawfare.”
Consider the other orders. One firm, Covington & Burlingcame under fire for providing pro bono legal services to special counsel Jack Smith, who investigated Trump for unlawfully retaining government documents and interfering in the 2020 election. Perkins Coie represented the Hillary Clinton campaign in 2016. Some firms got blacklisted for employing certain lawyers in the past, such as former special counsel Robert Muellerhis deputy, Andrew Weissmannwho investigated the Trump campaign for connections to Russia and worked on the hush money prosecution in Manhattan.
Of course, these orders would appear to violate the First Amendment right to free association.
Of course, these orders would appear to violate the First Amendment right to free association by punishing every member of an entire law firm solely because of the alleged misdeeds of one of its current or former lawyers. The orders also appear to run afoul of the Sixth Amendment right to the counsel of one’s choice by requiring clients with cases in federal court to go find new attorneys without limits on their access to government buildings. But Trump’s Oval Office remarks suggested that they are something more — part of a false narrative that the investigations of Trump were all cooked up — hoaxes and witch hunts all along.
Three firmsPerkins, WilmerHale and Jenner & Block, have filed lawsuits and obtained temporary restraining orders. Three different judges have found a substantial likelihood of success on the merits of their claims that the orders violate the Constitution. Amicus briefs supporting Perkins Coie have been signed by more than 500 law firms and a number of prominent former senior government officialsincluding officials who were appointed by Republican presidents such as former FBI and CIA Director William Webster and retired Judge J. Michael Luttig. Paul Clementwho served as solicitor general in the administration of George W. Bush, is representing WilmerHale in its lawsuit.
Everyone involved is to be applauded for their courage. These leaders recognize that in combatting the attack on law firms, there is no right and left. There is only right and wrong.
Barbara McQuade is an BLN columnist and NBC News and BLN legal analyst. She is the author of “Attack from Within: How Disinformation is Sabotaging America,”as well as a professor at the University of Michigan Law School and a former U.S. attorney for the Eastern District of Michigan.
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