Trump Stiffs the Courts

President Trump isn’t simply stiffing the courts in the matter of Kilmar Abrego Garcia, the man he mistakenly renditioned to El Salvador, and then unilaterally decided to dispense with due process to keep him there. President Trump is undermining the Constitution of the United States. In the process, he is eroding the independence of our courts, which exist to ensure that the laws of our nation are faithfully executed.

While I carry no brief for Mr. Garcia, I believe, as our Constitution guarantees, that no person can be deprived of life, liberty, or property in America without due process of law. That’s a basic tenet of the Constitution of the United States. No one, not even the President of the United States, should be allowed to banish anyone from this country without due process. But that is what President Trump has done in the matter of Kilmar Abrego Garcia, the Salvadorian man America exiled to El Salvador, admittedly by mistake.

Hundreds of others have also been shipped off to El Salvador without due process. It is troubling enough that Mr. Garcia’s rendition to El Salvador was due to an “administrative error.” Still, it insults our collective intelligence and sense of justice that, having acknowledged the error, the Trump Administration now claims there is simply nothing it can do, or choose to do, to rectify it.

Without even a scintilla of due process, and AFTER the US immigration court ordered that Mr. Garcia not be removed to El Salvador, he was, nonetheless, shipped there in total disregard of the directive of our immigration courts. It seems President Trump is eager for a fight with the court —a fight he cannot win in an American court of law, but one he assumes he can win in the court of public opinion among his base. He assumes too much. He sells even his base too short if he believes those who have voted for him are willing to see America dispense with due process in administering the law. Perhaps that is why his polling numbers have fallen so precipitously.

America was unique at its founding, just as America is unique today. No nation on earth had ever before guaranteed that the fundamental rights of the common man would be the same as the basic rights of the privileged gentry. In America, today, not even the President of the United States can banish an accused person to oblivion without granting that person an opportunity to defend himself. Our nation guarantees that no one in America can be forced to stand bowed and burdened before the law without having their day in court.

It is a right the American Constitution provides to all persons, citizens and non-citizens alike, who are subject to the jurisdiction of the United States of America. It is a thoroughly unambiguous right that no person, not even the President of the United States, has the right to abrogate. That’s precisely why a United States Appeals Court said “NO” to the Trump administration’s attempt to reverse a federal court order requiring that Mr. Garcia be returned to the United States from El Salvador.

The court directed President Trump to “facilitate the return” of Mr. Garcia, noting that he had been mistakenly deported. As the court stated, the Trump administration was, in effect, attempting “to stash away residents of this country in foreign prisons without the semblance of due process.”

Some might call President Trump’s attempt to circumvent our courts downright un-American. A federal three-judge panel unanimously and unambiguously ordered Mr. Garcia’s return to the United States. The Trump Administration’s position is that, because it has rid itself of jurisdiction by mistakenly sending Mr. Garcia to El Salvador, there is nothing the Trump Administration can now do to bring him back. It is a position that should shock the sensibilities of every American. What it postulates about the injustice done to Mr. Garcia could also be applied to any similar injustice visited on any American citizen. Once we mistakenly and unjustly send someone to prison in another country, President Trump’s rationale argues, there is nothing we can do to undo the injustice.

If that reasoning were allowed to stand, nearly 250 years of American jurisprudence would be turned on its head. We have progressed well past the time when due process was considered a privilege that could be dispensed or withdrawn by a ruling class. We are not living in a state of war, and no President can rationalize a state of war to suit his warlike intentions as President Trump has done in deporting Mr. Garcia without due process. Only Congress can declare that a state of war exists, and it is highly doubtful that any Congress, regardless of the party holding the gavel, would surrender that power to an angry president’s angry agenda.

Now, it is true that an immigration judge in 2019 found that Mr. Garcia was a gang member in New York. However, that finding has been called into serious question by U.S. District Judge Paula Xinis, who noted that Garcia has never resided in New York and that the immigration judge in Garcia’s case relied on nothing more than Garcia’s Chicago Bulls hat and a hoodie. Another federal judge, James Boasberg, found probable cause to hold the Trump Administration in contempt for disregarding a court order halting deportation flights to El Salvador.

Mr. Garcia, meanwhile, has been caught up in a Catch-22 dilemma, as an immigration court in 2019 ruled that he was subject to deportation, while more recent federal court judgments have taken serious issue with that ruling. What seems to be unarguably clear is that Mr. Garcia is being held somewhere in El Salvador, contrary to court orders that prohibit his transfer there and require his return to the United States.

Whatever any of us might think of Mr. Garcia, we should all acknowledge his right to due process. A government that can rationalize taking that right away from any of us can probably rationalize taking that right away from all of us.

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Recent podcasts have featured my commentary on Liz Cheney’s book, “Oath and Honor,” as well as my commentaries regarding:

U.S. Representative Jim Jordan,

Brian Kemp and Those Republicans of Georgia,

The Trump Indictments,

The Fox Corp Settlement,

The CNN Trump Town Hall,

The Hunter Biden plea deal,

The New American Cult of Personality,

and my interviews with William Bratton, Retired Chief of Police in New York City, Los Angeles, and Boston;

Rikki Klieman, Attorney, Network News Analyst, and best-selling author;

John Thoresen, Executive Director, Barbara Sinatra Children’s Center;

Katherine Gehl, co-author of The Politics Industry and founder of the Institute for Political Innovation;

Jazz artist Ann Hampton Callaway;

Outlander author Diana Gabaldon;

AI Data Scientist Lawrence Kite;

Ryan Clancy, Chief Strategist of No Labels;

Former Senator Barbara Boxer;

Former Senator Joe Lieberman;

and former Maryland Governor Larry Hogan.

Novels by Hal Gershowitz