Tag Archives: due process

A Legal Primer – It’s Not Complicated

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There has been much coverage of the arrest and immediate deportation of alleged “criminals” and “illegals” by the Trump administration. These actions are apparently part of the Republican plan to “make America white,” although in recent days Trump has pulled back the aggression as to certain workers. Why? Because he has realized that his shoot-first-think-later approach to domination may be offending some of his supporters whose businesses depend on immigrant labor. But from day-to-day Trump’s erratic approach to governance, largely made up on the fly, can change radically.

This primer is not, however, about our national immigration policy. It is instead about elementary constitutional and legal processes that are an essential part of our legal system. These principles apply to immigrants as well as citizens, and one day they might apply to you, as when Trump’s masked and armed men who refuse of identify themselves pull your car over or visit you at home or work.

First, the Constitution itself.

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment:

….  nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 

To keep this manageable, we’re going to focus on the text that I have bolded. But first we must include the function of magistrates. Virginia law is typical:

A principal function of a magistrate is to provide an independent, unbiased review of complaints of criminal conduct brought by law enforcement …. Magistrate duties include issuing various types of processes such as arrest warrants, summonses, search warrants, emergency protective orders, emergency custody orders, and certain civil warrants. Magistrates also conduct bail hearings in instances in which an individual is arrested to determine under what conditions the arrestee should be released from custody prior to trial.

Finally, there is the Supreme Court decision in Miranda v. Arizona (1966) that applied the Fifth and Sixth Amendments to the arrest phase of a criminal case. The Court held that any person in custody must, before being interrogated, be informed of the right to remain silent and the right to assistance of an attorney.

One other thing –no evidence has been produced that the armed masked men working for ICE and conducting what amount to kidnappings for the government have any meaningful training in the legal principles that govern what they are doing.

Now, the facts: let’s say you’re in a park with your two young children. An unmarked van pulls up and several masked men jump out. They are heavily armed. They tell you that you are under arrest for violating you immigration status, and that you must come with them. Or maybe they don’t tell you anything except to get the van, NOW!

You protest that you are an American citizen. You demand they explain the basis for the charges and that they identify themselves. They refuse. You are then handcuffed and forced into the van. You protest that your children are with you and have no one to care for them because your spouse is away on business. The men ignore you.

The next thing you know, you are on an airplane headed to an unknown destination but that soon becomes clear is not in the United States.

In my hypothetical case, you are in fact an American citizen and the men are wrong about who you are. They have been misinformed by someone in the U.S. Department of Homeland Security.

Your rights have been violated in multiple ways. No warrant for your arrest has been issued, you are not given your Miranda warnings, and you are not taken before a magistrate who determines whether your arrest is proper. You are given no opportunity to consult counsel who can present your defense that you are a U.S. citizen and not subject to deportation. Your right to a trial has been ignored. And you have been prevented from caring for your children who have been left in the hands of, hopefully, kind strangers.

This scenario has happened many times under the Trump administration’s “deport the criminal immigrants” policy. It is not complicated. The Constitution’s due process requirements refer to “persons,” not to “citizens.” It means what it says.

The reasons for the various “rules” and “principles” are straightforward and obvious when you think about it. The legal process, while slow, is designed to prevent mistakes. It is designed to assure that every person accused of a crime has a fair chance to understand the charges, to seek professional help, and to avoid mistakes that could impose criminal penalties on the wrong person. While Trump has complained by providing due process may require thousands of trials, that does not negate the rights of individuals to the protections of the Constitution.

The Trump administration’s unleashing of masked men who refuse to identify themselves and whose approach creates strong possibilities for mistaken arrests, and which imposes extreme penalties (removal to other states or, worse, deportation to foreign countries) with no opportunity to consult counsel, or to understand the charges, is certain to deny constitutional protections to the accused.

The idea that persons in the United States may be removed from the street or their home or a job, without notice, by unidentified armed men, transferred to other states and then removed from the country to a foreign prison without any opportunity to consult counsel, without any opportunity to protect family members including small children dependent on them, is unconstitutional, unlawful, and un-American. It is almost certainly a human rights violation and is unacceptable in the U.S. system of law.

And under the Trump administration it is happening every day.

The Problem of Pledging Allegiance to a President Over the Constitution

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For those who don’t know ….

The Fifth Amendment to the United States Constitution reads, in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor be deprived of life, liberty, or property, without due process of law….

The Fourteenth Amendment to the United States Constitution reads, in pertinent part:

…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article I, Section 9 of the United States Constitution reads, in pertinent part:

No Bill of Attainder or ex post facto Law shall be passed.

Article I, Section 10 of the United States Constitution reads, in pertinent part:

No State shall … pass any ex post facto Law….

Pam Bondi (Attorney General) and Stephen Miller (White House Deputy Chief of Staff) maintain that since the gang to which Kilmar Abrego Garcia allegedly belonged to was declared a terrorist organization by President Trump, that since Mr. Garcia belonged to the gang back in 2019, he is now a terrorist and subject to immediate removal from the United States and return to his native land of El Salvador, at which point the United States is free to wash its hands of him and leave him to his fate at the hands of rival gangs in the CECOT Prison.

As Ms. Bondi, the US Attorney General robotically recited recently, “Mr. Garcia does not belong in this country.” Bondi and Miller must not have been paying attention during that part of constitutional law class. You can see where I’m going with this.

Even if it is absolutely true that Mr. Garcia is a bad guy, a gang member and all the rest of the allegations made against him by Bondi, Miller, and Trump, his kidnapping and removal from the United States after a federal judge ordered that he not to be removed cannot be justified because:

  • Garcia did not receive an indictment for a crime committed in the United States,
  • was not presented with the details of an alleged crimes,
  • received no Miranda warnings,
  • had no opportunity to retain and consult counsel and, therefore,
  • no opportunity to contest the “findings” on which the government purported to act in arresting and deporting him.

In short, whatever else Mr. Garcia may be, he is a “person”, and he received nothing resembling “due process of law” to which the Constitution entitles every “person.” He was secretly snatched from the street and forcibly removed from the country. Just like what the Nazis and other totalitarian regimes have done in the past. The faux anger displayed by AG Bondi and Stephen Miller in the White House video [https://www.youtube.com/watch?v=pv4HjZmiueo] are no excuse for this outrageous behavior. By comparison, the student who killed two people and wounded six others at Florida State University will receive the full panoply of opportunities guaranteed by the law and the Constitution.

What is the main difference between Mr. Garcia and the Florida State shooter? You know it without my spelling it out. The Trump regime is a foul collection of racist idol worshippers committing daily crimes against humanity, among other offenses to our Constitution, laws, and culture. Performative yelling at a White House press event that Mr. Garcia is bad person is no excuse for depriving him of the rights every other person in this country is entitled to receive.

Trump’s followers had better realize that if the government can do this to Mr. Garcia, it can do it to anyone. And it is.

NBC News reported on Senator Van Hollen’s visit to Mr. Garcia in El Salvador this way:

Van Hollen traveled to El Salvador on Wednesday to push for Abrego Garcia’s release after the Trump administration did not demonstrate any efforts to “facilitate” his return, despite a Supreme Court ruling last week requiring just that.

The legal battle continued Thursday, when a federal appeals court rejected an effort by the administration to put the requirement on hold. In a unanimous ruling, a three-judge panel said the administration was trying to assert “a right to stash away residents of this country in foreign prisons without the semblance of due process.”

In a statement Thursday night, the White House called Van Hollen’s efforts in support of Abrego Garcia “disgusting” and said Trump will “continue to stand on the side of law-abiding Americans.”

In addition to its other offenses against the Constitution and laws of this country, the Trump administration has decided it’s perfectly acceptable to try and convict individuals in the press without even a semblance of due process. We insist that murderers get full due process, but the President of the United States is allowed to assert the guilt of individuals without any process whatever? Trump has obviously learned nothing from his multiple court defeats in defamation cases. Read any history book about totalitarian regimes, and you can see where this is headed. Americans better wake up and put a stop to this.

Where is the Moral Outrage at Nazis Running the Federal Government?

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OR: Trump Administration is Guilty of Kidnapping, Unlawful Transport & Crimes Against Humanity

The Washington Post reported on Saturday, April 5, that: 1) the Department of Justice that has admitted it mistakenly deported Kilmar Abrego García to a prison in El Salvador, and (2) DOJ has argued to an appellate court that the U.S. government is helpless to secure his return. https://tinyurl.com/yzm27mjy

In effect, the U.S. Department of Justice, an element of the Executive Branch of what was, at least prior to Trump’s re-election, the most powerful and influential country in the world, says it has no means of compelling or negotiating for Mr. Garcia’s return. This, even though the United States is paying El Salvador about $6 million to hold the group of deportees of which Mr. Garcia is a member.

In effect, Attorney General Pam Bondi’s Justice Department is arguing that it (1) deported Mr. Garcia by mistake, (2) violated Mr. Garcia’s civil rights, (3) violated Mr. Garcia’s rights under multiple amendments to the U.S. Constitution, not least of which was due process of law, (4) essentially kidnapped Mr. Garcia and unlawfully transported him to a foreign country where it relinquished control of him to a foreign government over which the United States has zero influence, (5) that the Judicial Branch of the U.S. government effectively has no remedial authority as against a decision of the Executive Branch regarding a foreign national “removal decision.”

In short, the US government is saying “who cares?”

These astonishing arguments reveal a fundamental error that the Trump administration continues to make. It appears to believe that the Executive Branch of the U.S. government is the final word on legal decisions even where, as here, the Executive admits it make a mistake that, in effect, may destroy a man’s family and perhaps forfeit his life.

I cannot resolve the conflicting claims as to whether Mr. Garcia was a member of MS-13 that has now been declared a terrorist organization by the Trump administration. However, the admission by the administration that Mr. Garcia’s deportation to El Salvador was mistaken would seem, regardless of anything else, to compel the U.S. government to bend every effort to secure his return. AG Bondi says, “no, we may have erred in deporting him, but we owe him no duties now and are helpless to do anything to rectify our mistake. Let him rot in El Salvador.”

This is a perfect illustration of why we insist on due process in this country. That process, which may be slow and even tedious, helps assure that grotesque mistakes like the Garcia case do not occur. The Trump administration has shown time and again that it has no regard for constitutional protections, and that it will arrogantly disregard any damage it may do in it rush to prove how tough it is on “crime.”

Now, after the government disregarded direct orders from a District Court judge to stop the deportation of Mr. Garcia and to provide him with the due process of law to which every resident is entitled under the Constitution, the Supreme Court has finally, days late, awakened to the inescapable realization that it can’t paper over this outrage. But in doing so, the “moral majority” on the Court seems singularly unmoved by the potential human catastrophe that the incompetent fools running the Trump administration have created.

We have grown accustomed, though hardly accepting, of Justices Alito and Thomas (that one, who takes hugely expensive favors from sponsors with business in the Court without a whimper from the Chief Justice) taking severe umbrage at decisions they consider insufficiently respective of Christian values. Now, when the government has monumentally screwed up a deportation case, putting at risk of death by gang execution, among other risks, a father never accused of a crime here or in El Salvador, all we get are lectures about the proper procedure for bringing the issue before the Court and about the lower court being more respectful of the President’s authority over foreign affairs.

How exactly the Garcia case implicates the President’s foreign affairs powers has not been fully explained. We know the obvious: El Salvador is a sovereign country and to retrieve Mr. Garcia from its clutches may require some negotiating. But it shouldn’t be that hard a problem. The US is paying El Salvador a lot of money to house the people it has snatched off the streets and out of homes — the way a good Gestapo does — and shuttled out of the country as fast as possible without even a nod to due process. It shouldn’t take a negotiating genius, as Trump claims to be, to figure out a way to induce the El Salvadoran establishment to release at least one man that our government admits should never have been sent there in the first place.

Yet our Supreme Court, while nodding to the continued need for due process of law and all the rest seems most concerned with lecturing the District Court judge, the main judicial authority standing up for Mr. Garcia, about not overreaching into the President’s foreign affairs prerogatives.  Is this a hint to Trump to slow-walk the entire business in the hope that Mr. Garcia will be murdered in the hellhole prison in El Salvador thereby solving the US government’s embarrassing problem? Is it a signal to Attorney General Bondi that her abject indifference to Mr. Garcia’s welfare is just fine if the US government just goes through the motions of seeking Mr. Garcia’s safe return?

Compare what has transpired. The District Court judge, closest to the evidence of what occurred here, found that Mr. Garcia’s removal, when the government knew an order was imminent to stop his removal, was a “grievous error” and that the risk to Mr. Garcia “shocks the conscience.” While DOJ claims Mr. Garcia is a member of the MS-13 gang, the District Court judge found that the government had not proved that claim:

That silence is telling…. As Defendants acknowledge, they 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.

The judge’s ruling against the government was sustained by a three-judge panel of the 4th U.S. Circuit Court of Appeals, based in Virginia, not exactly a liberal bastion of judicial decision-making.

DOJ, at the behest of the morally vacuous Attorney General appointed by Trump, claimed that the order to return Mr. Garcia was, despite conceded errors in deporting him to the El Salvadoran hellhole prison, “indefensible” because, golly, damn, it “commands Defendants to do something they have no independent authority to do: Make El Salvador release Abrego Garcia, and send him to America.”

“If this precedent stands, other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business,” Solicitor General D. John Sauer wrote. In simpler English, DOJ objects to being compelled to do its job because just imagine the horror of having to return “removed aliens” whose rights we have violated.

I haven’t read all the briefs, but reliable reports note that the “Government lawyers compared the administration’s power to bring Abrego Garcia back to a court ordering the administration to end Russia’s war in Ukraine or return Israeli hostages held by Hamas in Gaza.”

Arguments like that should have led the Supreme Court majority to, at a minimum, sanction government counsel for arguments lacking reason, precedent, and common sense. But no, the Court seemed more concerned with being sure no one stepped on the President’s authority in foreign affairs. No sense of moral outrage that the government conceded a terrible, potentially life-threatening and unconscionable error, then argued we should just ignore it and let the chips fall on Mr. Garcia who, after all, is, in the eyes of the Trump administration, a bad person, evil incarnate. The DOJ attitude recalled a segment from the Dragnet TV series of the 1950s. Detective Jack Webb captures a serial killer and asks him “what have you got against people?” The killer answers: “People? I got nothing against people. What do I care about people?”

The Americans arguing that the courts should butt out of this and leave Mr. Garcia to his fate apparently do not understand that if the government can do this to Mr. Garcia, it can do it to anyone. Indeed, there is talk of “removing” US citizens now.

In preparing this post for publication, I read that the government has balked at the timeline established by the District Court to explain what it’s going to do to comply with the court’s orders now reinforced by the Supreme Court. The judge, quite rightly, is having none of it. He should hold the government in contempt and, if necessary to get DOJ to comply, hold weekend hearings. This fiasco has gone on too long already and Mr. Garcia remains at risk.