OR: The Trump Noose Tightens on the National Neck

The Trump administration, laced through and through with unqualified and incompetent appointees to positions of great responsibility, mistakenly snatches a man (Kilmar Abrego Garcia) off the street and, in the face of a court order to stop, puts him on a plane for a hellhole prison in El Salvador. The court orders his return. Trump’s Department of “Justice” declines and appeals. The Supreme Court majority eventually votes unanimously to order the administration to “facilitate” the victim’s return. In doing so, however, the Court gratuitously and unnecessarily “advises” the District Court judge to act with due regard for the separation of powers and the President’s supreme authority over foreign affairs.

As was 100 percent predictable, the administration leaps upon that advice and says “no thanks, we’re not going to bring him back. Mr. Garcia, charged with no crime, can rot in El Salvador for all we care and there is nothing you can do about it because this decision is made under the President’s Article II power to control absolutely the foreign affairs of the country, just as the Court suggested.”

Recall that in a prior decision this same Supreme Court held that the President could conspire with the Department of Justice to commit crimes, including the crime of trying to overturn an election he clearly lost, and could not be held accountable for his criminal conduct in office. Further, in carrying out his “executive powers,” the President’s motives could not be questioned.

So, here we are. A man properly in the United States, charged with no crimes, is ripped from his family and employment, hustled onto a plane full of others similarly situated for the most part, and imprisoned in a foreign country. With the apparent approval of the highest court in the land.

Trump then invites the dictator of El Salvador to the White House where that dictator labels as “preposterous” the question of his returning his prisoner to the United States. In a statement that is typical of people who consider themselves unbound by law, the Salvadoran President Nayib Bukele told Trump: “To liberate 350 million people, you have to imprison some. That’s the way it works.”

The power of courts to hold the federal government in contempt of court and sanction it or its attorneys is far from clear. https://www.congress.gov/crs-product/LSB11271 That is perhaps why the District Court judge, in whose face the Department of Justice has metaphorically spit, has thus far fumed and fussed over the DOJ’s recalcitrance but has not issued any form of mandatory punishment for its resistance to the court’s mandates. Likely the judge realizes that the Supreme Court, having recently pronounced the unprecedented and astonishing doctrine of presidential immunity for crimes committed in office, will not support mandatory sanctions against DOJ for its disobedience.

And we now hear the President of the United States and people who work for him remarking that the power to snatch people off the streets and imprison them in foreign countries permits the federal government to do this to American citizens as well as people like Mr. Garcia who were properly here under work permits but were not citizens. Many of us have seen the videos of armed men in blackened vans visiting people in their homes for what are ludicrously labeled by the men as “wellness checks.” And some people are literally being assaulted on the streets, arrested and hauled away with no formal charges, no due process, and no opportunity to get counsel. These behaviors are blatant violations of our criminal laws and the Constitution.

We have reached the point of no return. The President has made clear he will stand for no resistance to his wishes. It seems virtually certain therefore that we will soon experience a declaration of martial law and a presidential directive to imprison here or abroad, without trial or other due process, anyone the President or his compliant appointees selects for removal. Or maybe he won’t even bother with a declaration that he likely regards as superfluous.

If allowed to get away with this, the President will have completed his subordination of the Constitution and brought about his dictatorship over the United States. As insane as that future seems, there is little happening now that suggests it is an overblown scenario. Trump has repeatedly made clear that he regards the Constitution as authorizing him to “do whatever I want.” We are there now. He is doing whatever he wants.

It is beyond dispute that if he can with impunity deport and imprison Mr. Garcia, he can do it to anyone, including American citizens who cross him or are merely suspected of being “disloyal.” Anyone who has studied the history of dictators surely knows that is how the process works.

The question then becomes: who will stop him and how? Certainly not the Republican cowards in Congress who value retaining what they fancifully believe is their “power” over their oaths to support the Constitution. It was once believed that the senior military leadership would handle the problem, but Trump has replaced most of those who might have acted decisively to restrain him. The courts lack both the will and the mechanisms for holding the President to account.

Trump’s abuse of power is plain and open. He believes the law does not apply to him and that the Constitution grants him powers that the Founders would never have imagined. Who then will stop him? And when?