Let’s start by calling Monday’s contrived White House meeting between El Salvador’s President Nayib Bukele and Donald Trump what it was: a set piece to deceive the American people and the world—and make a sucker of the courts and the rule of law.
And while each player delivered his agreed-upon lines, it was a ham-handed performance that fooled nobody. As Trump looked on smiling, Bukele dutifully—and of course falsely—insisted that he didn’t have the power to return Kilmar Abrego Garcia to the United States. He went on to label Abrego Garcia a “terrorist,” a line that the administration has now taken up, contradicting its previous admission by several officials.
Trump advanced the parallel claim after the meeting, writing on social media that “these barbarians are now in the sole custody of El Salvador, a proud and sovereign nation, and their future is up to President [Bukele].”
So two presidents of boundless ambition, who spend their days indefatigably claiming near-absolute power, suddenly protest powerlessness when it comes to the release from brutal custody of a wrongfully deported U.S. resident.
Attorney General Pam Bondi and Secretary of State Marco Rubio, not surprisingly, were in on the con. Bondi also pleaded powerlessness, saying Abrego Garcia’s prospects of seeing his wife, family, and U.S. soil ever again are “up to El Salvador if they want to return him. That’s not up to us.”
Rubio—once an honorable man who will never be able to live down his service for the Trump administration—hewed to the legal party line, insisting that “no court in the United States has a right to conduct the foreign policy of the United States.”
In a hearing Tuesday before Judge Paula Xinis, the administration tried to proffer the Oval Office discussion as evidence that it lacked power to comply with Xinis’s order, which the Supreme Court affirmed in relevant part. It was a further indication that the meeting had been staged to support stonewalling the court orders in the case.
Xinis was having none of it. She ordered the Justice Department to submit to two weeks of intense discovery—including sworn testimony and documents—to get at the questions they have brazenly dodged so far. Xinis noted that notwithstanding the ruling of the Supreme Court, “to date nothing has been done” to facilitate Abrego Garcia’s return.
From Trump on down, the administration obviously believes it has found the silver bullet that prevents Xinis and the legal system from even addressing the horrific constitutional violation for which it bears complete responsibility. You can almost hear their swagger in thinking, “We’ve won again.”
But—no sense mincing words—they are lying on the facts and wrong on the law.
On the facts, it is preposterous to maintain that we are powerless to facilitate Abrego Garcia’s release from custody in El Salvador’s notoriously brutal Terrorism Confinement Center, or CECOT. The imprisonment of Abrego Garcia is part of a contractual arrangement under which we pay El Salvador about $6 million—or $20,000 per detainee per year. Bukele has touted the contract as a way to contribute to the self-sufficiency of the infamous facility.
Like any other good customer, the United States can easily negotiate the adjustment. Indeed, El Salvador already has sent back people who should never have been shipped there, including women. And the channel is open enough to permit Department of Homeland Security Director Kristi Noem to visit the prison for a photo op last month.
More generally, it’s apparent that Bukele—a two-bit dictator hungry for greater power—is thrilled to be recognized by Donald Trump. Bukele could never have hoped to be received, much less lionized, by any other occupant of the White House. He plainly will do whatever Trump wants.
The inescapable conclusion is that the leaders of the two countries perpetrated a charade in real time to try to insulate the administration from having to remedy a grave constitutional and humanitarian violation. As Xinis put it, “Every day Mr. Abrego Garcia is detained in CECOT is another day of irreparable harm.”
In any event, the administration’s hubris in thinking it has found a fail-safe shield against responding to the judiciary—namely the talismanic assertion that with Abrego Garcia in El Salvador, it is now a matter of “foreign policy”—is wrong on the law.
Courts sometimes hesitate to inquire deeply into the executive’s foreign policy determinations, but it is hardly the show-stopper that Marco Rubio, Stephen Miller, and everyone else in the administration seems to think it is.
Indeed, there is no formal “foreign policy exception,” as such; it’s a shorthand for judicial reticence to second-guess certain matters of foreign affairs. It is, in essence, a form of executive privilege, and the Supreme Court has made clear that such privilege is qualified.
Moreover, determining whether a privilege can shield the government from revealing information in a concrete case requires weighing the assertion against the need on the other side. Here, that need could not be more acute: remedying a horrendous constitutional violation that the United States committed—and that the United States probably alone can remedy.
Even more of a problem for the administration’s smug refusals: The cases are clear that the government has to substantiate an assertion of a foreign policy privilege. It may not simply cross its arms and say “foreign policy,” as Rubio would have it.
The Supreme Court made that point clearly in 2001’s Zadvydas v. Davis, where the government argued that the court had simply to accept without further scrutiny its position on the ability to indefinitely detain an alien. While it acknowledged—as it did in the Abrego Garcia case—the need to give deference to the executive’s core authority, the court added: “We believe that courts can take appropriate account of such matters without abdicating their legal responsibility to review the lawfulness of an alien’s continued detention.”
The Fourth Circuit Court of Appeals, where this case arises and where the United States will first appeal any ruling it dislikes, has similar precedent. In El-Masri v. Tenet—though it ultimately agreed with the government—the court first held that “the [state secrets] doctrine is a judicially created rule of evidence ... [and] we must independently determine whether disclosure poses a reasonable danger to national security.”
What all this means is that Judge Xinis is doing exactly what the law permits. She is not taking the government’s assertion at face value and not permitting the government to simply refuse to answer. She is, rather, holding the administration’s feet to the fire and requiring it to provide the information she needs to determine how to remedy a constitutional violation that already has been established.
Expect the government to fight this at every turn, to continue to press the argument that it can just ignore lawful process. Xinis, however, holds the whip hand for now, and Tuesday’s hearing left no doubt that she is prepared to use it. And if the unanimous opinions of the Fourth Circuit and Supreme Court are any indication, they will decline to step in during the discovery phase.
None of this is any guarantee that the Trump administration won’t simply ignore her orders, racking up contempt penalties and gambling on eventual salvation in the Supreme Court. But if that is where the administration is determined to bring the country, better that it happen in a case where the injustice is so stark and the constitutional breach so unambiguous. Better, in other words, that the American people see clearly what it means when a president places himself above the law, and understand the imperative of popular opposition.
