Episode Transcript
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Speaker 1 (00:00):
So please to welcome back to the show, Josh Blackman.
Josh has been on the show a few times in
the past, and he's just one of my go to
guys for constitutional law. Josh is a professor of law
and Centennial Chair of Constitutional Law at the South Texas
College of Law. Oh okay, hang on, hang on, this
(00:21):
is not working right, let me try that. Let's try
that one more time. All right, and let's try that again.
You got me now, Josh?
Speaker 2 (00:30):
Still? No, you're mute. I can't. Okay, can you hear
me now? Are we good? Shannon, Josh, can you hear me?
Speaker 1 (00:42):
No?
Speaker 2 (00:42):
Still no, I'm I don't know what's going on there?
All right? Yes, okay, got me out? All right? All right,
that's the joys of live radio, folks. All right.
Speaker 1 (00:53):
So, as I said, Josh Blackman teaches law and constitutional
law at the South Texas College of Law in Houston
and just one of my my go to sources for
understanding constitutional law on things that are that are going
on in that area. And as I am kind of
a constitutional law nerd even though I'm not a lawyer,
I really love these conversations. And there's a lot going
(01:13):
on right now within the Trump administration things that.
Speaker 2 (01:18):
You can like or not like the policy.
Speaker 1 (01:21):
But I'm not really looking to talk policy so much
these days as I am about the legalities of the policies,
because whether I whether or not I like a policy
isn't the only thing that is a factor for me
in terms of whether I support it. Right if there's
if there's an outcome that I prefer, but you have
(01:43):
to do something illegal to get there, then I won't
support it. Not just because I'm, you know, extra prim
and proper about obeying the law, although probably one should be,
but also because if you allow a politician to break
the law to get to an outcome that you liked,
then four years later or eight years later, a politician
(02:05):
is going to break the law and get to an
outcome that you don't like. And what are you going
to say against it When you said, well, my guy
could break the law, just not your guy. That's not
gonna go over very well. All right, So, Josh, welcome
back to KOA. It's good to have you here.
Speaker 3 (02:18):
Thanks for having me.
Speaker 2 (02:19):
I want to dig in.
Speaker 1 (02:20):
With you a little bit on this whole kill mar
Abrago Garcia thing. And it's interesting in that since I
booked you on the show. The story just it changes
and it changes and it changes, and it just keeps evolving.
Speaker 2 (02:36):
So before I ask.
Speaker 1 (02:37):
You a specific question, why don't you like, if you
were teaching a class where you were going to talk
about this thing, you were going to set it up
first and then ask questions of your students.
Speaker 2 (02:49):
Set it up for us.
Speaker 1 (02:51):
What do we need to know about the situation right now?
Speaker 2 (02:54):
How do you frame it?
Speaker 3 (02:56):
So this is an unusual case. So we had a
number of aliens who were removed to this El Salvadorian prison,
most of them Trump has said should have been removed.
Right There were members of MS thirteen, members of Trenderragua's
mother or some other gang. The government has conceded that
Garcia should not have been removed. There was a court
(03:18):
order saying do not remove him because he faces persecution
in his home Countryville Salvador. But once he was removed,
now Trump says we can't get him back because he's
in the custody of the Salvadorian government, and the president
of El Salvador, Bukeli, said, we're not gonna give him
back now. Of course, you know, and I know that
Trump asked him he would, but Trump's not gonna make
(03:39):
the request. What's weird is that a judge in Maryland
basically ordered Trump to bring him home, and the government said,
you are a judge, you cannot dictate foreign policy. This
case goes the Supreme Court, and the Supreme Court basically says, well,
words can't require Trump to do this, but Trump should facilitate.
(04:04):
That's where these facilitate the return of Garcia. Now Trumps said,
all right, We've done everything we can. We can't do
anything else, and that's it.
Speaker 2 (04:11):
He stuck there.
Speaker 3 (04:12):
So this is a unusual case and he gets to
separate number one should have been removed and number two
to the courts of the power to dictate foreign policy
to the executive. Those are these two sort of issues
that collide in this case.
Speaker 1 (04:25):
Okay, let's talk about the second one first. So I
don't know if you happen to read the article by
my friend Andy McCarthy on this question of control of
the prisoner. What Andy basically argues is and this is
I guess a legal term, but a Bailee Baylor and
bai Lee something like that.
Speaker 2 (04:45):
I'm sure you know these terms. I don't.
Speaker 1 (04:48):
And what Andy argues and I would like to know
whether you agree or disagree.
Speaker 2 (04:51):
And in either case, why is that?
Speaker 1 (04:55):
Because the US is paying L.
Speaker 2 (04:57):
Salvador to hold these people.
Speaker 1 (05:01):
In effect, Al Salvador is functioning as an arm of
the American government in this situation, and they must do
whatever we tell them to do with the prisoners, and
that the Trump administrations claim that they can't control it,
and the L. Salvadorian government decides is wrong. What's your take?
(05:22):
So I am hesitant to the sagroup of Andy. He knows
this stuff quite well. I'll just mix a slightly related point.
Speaker 3 (05:28):
Even assuming that's correct, right, even assuming that this foreign
country is basically a contract or fue old US government,
there's still an aspect of foreign policy that's not being discussed.
When the President engages in diplomacy, he's considered the sole organ,
the one voice of the United States government. There are
(05:49):
many many factors that go into that. And perhaps, yes,
they could say please release this alien, but that might
affect other aspects of American foreign policy, which are courts
are not privy to. I think what the Supreme Court
basically is said in that case is the lower courts
are not considering how this affects international relations.
Speaker 2 (06:08):
Now.
Speaker 3 (06:08):
To be sure, Trump is trying to push envelope. He
wants to push this issue. But I'm not sure this
is the same thing as saying that you know that
that Trump contracts with some private contractor the whole prisoners.
I think when there's a foreign government involved than avams
are just a little bit different. Right, If there was
a contractor Trump could actually order them to do it.
If it's a foreign president, I don't know that the
(06:29):
same leverage exists.
Speaker 1 (06:31):
So the lower court ordered the Trump administration to effectuate
in facilitate the return of mister Abrago Garcia. The Supreme
Court took out the word effectuate and just said facilitate.
And this gets kind of deep in the weeds here,
But I think probably most of my listeners understand that
(06:53):
the Supreme Court is very very careful how they choose
their words.
Speaker 2 (06:56):
So what does that word mean and what does it
not mean?
Speaker 1 (07:00):
Right?
Speaker 3 (07:00):
So that's the one hundred million dollar question, right, What
does facilitate mean? The way I understood it is that
the government must take whatever steps it can domestically to
permit the return of Garcia. I think they can, you know,
make the request they can arrange transportation from El Salvador
(07:21):
back to the United States. They can pryor whatever transports
you needed within El Salvador from the prison. What I
don't think they can do is issue in order to
Bukeli saying you must release him again, I think, and
I appreciate your point a few minutes ago. Whatever you do, now,
imagine what happens in four years. I mean, you know,
(07:42):
imagine in forty years for pressent Kamala Harris or Tim Waltran.
When else, and you know, a court issues in order
seeing that you must you know, negotiate with some foreign
power over some matter that's within your discretion. It gets
a little bit dicey. And so there's an expression, bad
cases make bad Lafe. This is a very bad case
and the centric it's a really, really really bad law And
(08:05):
whatever sympathy I have Regarcie, I think it's to be
tempered by the sorts of presence or being set on
a day by day basis.
Speaker 1 (08:11):
My gut instinct on this, and this is not talking
as a wanna be lawyer, just talking as a citizen.
My gut instinct is that the Trump administration overreached and
did something they probably shouldn't have done with the not
necessarily deporting him, but deporting him too. L salvad Or
in particular. And the judges who are not the Supreme
(08:33):
Court but the lower courts are also overreaching in their response.
Speaker 2 (08:37):
To the Trump administration. That's kind of my gut feel
on it.
Speaker 3 (08:42):
You are correct. Trump has a bad tendency to make
judges of react, and in turning, the judges overreact against Trump.
It's this terrible vicious cycle. And in this process, so
much is being done so quickly. I mean, just in
the abstract, will you ever made that a federal judge
would tell the president to turn on a military plane
(09:04):
with that would be fathomable, but it happened like a
couple weeks into the administration. So Trump, yes, overreach, has
tried to set new precedents, and the courts in turn
reach even further. The latest incident is that the judge
in DC, Judge Boseburg, wants to see hold the entire
Trump administration and contempt and it's appoint a special prosecutor
if there any criminal charges are appropriate, so you might,
(09:24):
you know, try to have the Attorney general dieted. Right,
we are uncharted waters and no pun intended. We are
really going out where we've both never gone before.
Speaker 1 (09:33):
We're talking with Josh Blackman, professor of law at South
Texas College of Law in Houston. So the Boseburg thing
is about he ordered the administration not to deport a
bunch of people, and it wasn't so much that they
weren't deportable, but his take was they hadn't gotten the
due process yet that they needed to be deported. And
then there's this fight about well, was the plane already
(09:56):
in the air, and the judge seems to think that
the Trump administration defied his order to.
Speaker 2 (10:02):
Keep those people here for now.
Speaker 1 (10:05):
And what I feel like we're drifting toward, Josh, is
that famous Andrew Jackson thing about John Marshall. Right, Justice
Marshall has made his ruling, Now let him enforce it.
Speaker 2 (10:17):
And I think that would be kind of bad for everybody.
Speaker 3 (10:21):
So just I'll give you guys a update that never
actually happened. It's this common myth that never happened. John
Marshall never said it. And the reason why John Marshall
never said it is that Andrew. I'm sorry that Andrew
Jackson never said it.
Speaker 2 (10:33):
Uh huh.
Speaker 3 (10:34):
I didn't say it because John Marshall never actually ordered
issue in order against the government.
Speaker 2 (10:38):
Oh my gosh, I love it.
Speaker 3 (10:40):
Yeah, the case called Workser Services Georgia goes case against Georgia,
not the US government, So the US was party. There's
nothing for Jackson to ignore.
Speaker 1 (10:47):
But it's still a great concept, isn't it.
Speaker 3 (10:50):
It really is. I think the better example is actually
President Lincoln. People don't know this, so you've never heard
the dread Scott decision. Right, dread Scott said that people
of African descent con nefmy citizens. Okay, what did Lincoln do?
He issued passports to black citizens. He took an action
that was in consistent with dred Scott. Now what was
(11:13):
his argue as well? Dred Scott by Sanford, the US
government wasn't a party to the case. I'm not bound
by it. So President done that before. What it's a
little bit different here is now there's an order running
directly against Trump. I think, look, we went through this
with Muller. Can you indict the president? I think we're
have a special prosecute and investigate Trump the next four
years basically Muller all over again. It's like nothing changed.
Speaker 2 (11:35):
Let's see.
Speaker 1 (11:37):
Donald Trump has suggested, although I suspect he may be
trolling people, but it's hard to tell these days, that
he wouldn't mind with some of our very worst criminals,
American citizen criminals, sending them to El Salvador or somewhere
else to serve prison time there. Now, of course, the
(11:57):
first thought into my head was, what do we have
a big problem with prisoners escaping from our prisons here
that somehow we need to send them somewhere else. But
in any case, my question for you is do you
think that.
Speaker 2 (12:08):
Would be legal?
Speaker 1 (12:10):
No?
Speaker 3 (12:11):
I mean again, I think Trump trolls quite a bit,
but then sometimes his trolls become real. I think there's
a huge problem deporting in American citizens to foreign prisoners. Now,
the other issue is denaturalization, which I think has to
be viewed in this context. I think Trump actually wants
to denaturalize certain people who obtain immigration staff through fraud
(12:33):
and then deport them to these prisons. Right, that's actually
a slightly different issue. You're no longer a citizen, and
there's actually a statute that says if you obtain your
citizenship by fraud, you can denaturalize. So you know, if
you lie in your paperwork. You get false information, you know,
sham marriages or a lodg from ways, you get citizenship.
So again, it's hard to separate the trolls from the
(12:55):
non trolls. But I think just straight up sending US
citizens to foreign prisons is not.
Speaker 2 (13:00):
Going to fly.
Speaker 1 (13:01):
Okay, later for listeners, I'm going to play some audio.
I'm not going to take Josh's time with it now,
But yesterday Press Secretary Caroline Levitt gave a press conference,
the second half of which was an absolutely heartrending comments
by the mother of Rachel mourn talking about how an
illegal alien, not the one we're talking about today, but
(13:22):
brutally raped and murdered and just savaged her daughter.
Speaker 2 (13:26):
It was really moving. In fact that the White House.
Speaker 1 (13:29):
Press Court in the room afterwards was they were almost speechless,
and they were saying to her you could hear when
the microphone was still on, like We're so sorry for
your loss.
Speaker 2 (13:36):
They weren't even asking questions. It was amazing.
Speaker 1 (13:39):
But before that, Josh, Caroline Levitt dumped an entire fifty
five gallon bucket of derogatory information on the head of
kilmar Abrego Garcia. Right, this and that information where they
think he's a gang member, with a little more evidence
than they gave before. Not proof, but a little more
circumstantial evidence than.
Speaker 2 (13:57):
The game before.
Speaker 1 (13:58):
Two different file with state or local police in the
state of Maryland where his I guess common law wife,
I don't know that they're married, filed for orders of
protection against him, and just some other stuff that was
again almost evidence, but it was an immense amount of
stuff that sure does.
Speaker 2 (14:20):
It shor did a lot to diminish Let's.
Speaker 1 (14:23):
Say, the way the media is trying to talk about
Abrago Garcia as you know, a father from Maryland.
Speaker 2 (14:30):
So here's my legal question for you.
Speaker 1 (14:33):
I suspect that the Trump administration didn't know any of
that when they deported him. I suspect somebody went to
try to find bad information about him so they could
cover their collective asses since they sent him to El Salvador.
Does it matter if they knew that already or if
(14:54):
they found it later when it comes to how a
judge would rule as to whether the administry creation really
does need to bring him back.
Speaker 3 (15:02):
Uh, You're probably right about this. I doubt they knew
any of this. I think when they removed him, it
wasn't because of any domestic situation. Is because they thought
he was a member of a gang. Maybe asked the
follow up question doesn't matter. That might matter one day
if he's ever return to the United States soil and
they can see that his removal was unlawful. But until
(15:23):
his return to a soil, I know there's much that
can be done right again. This is sort of this
underlying issue. There was a wrong. The government's basically said
there was a wrong, and people might not like to
hear this, but there's not always a remedy for wrong.
In other words, people look to the courts fix any
problem in the world. I don't think that's a correct
(15:45):
view of the world. Courts have limited power and jurisdiction.
Sometimes the government does stuff that's wrong and the courts
are powerless to help this. Of course, think they have
the power, but I think there's an aspect of humility.
Speaker 2 (15:57):
Here that has to be said aloud.
Speaker 3 (16:00):
Not every wrong can be remedied by a court.
Speaker 2 (16:03):
I think that's a great place to leave it.
Speaker 1 (16:05):
Josh Blackman is Professor of Law and Centennial Chair of
Constitutional Law at the South Texas College of Law in Houston.
Always love talking to you Josh, thanks for making time
for us.
Speaker 2 (16:15):
Thank you, sir. Talk soon, all right, you got it.
So please to welcome back to the show, Josh Blackman.
Josh has been on the show a few times in
the past, and he's just one of my go to
guys for constitutional law. Josh is a professor of law
and Centennial Chair of Constitutional Law at the South Texas
College of Law. Oh okay, hang on, hang on, this
(00:21):
is not working right, let me try that. Let's try
that one more time. All right, and let's try that again.
You got me now, Josh?
Speaker 2 (00:30):
Still? No, you're mute. I can't. Okay, can you hear
me now? Are we good? Shannon, Josh, can you hear me?
Speaker 1 (00:42):
No?
Speaker 2 (00:42):
Still no, I'm I don't know what's going on there?
All right? Yes, okay, got me out? All right? All right,
that's the joys of live radio, folks. All right.
Speaker 1 (00:53):
So, as I said, Josh Blackman teaches law and constitutional
law at the South Texas College of Law in Houston
and just one of my my go to sources for
understanding constitutional law on things that are that are going
on in that area. And as I am kind of
a constitutional law nerd even though I'm not a lawyer,
I really love these conversations. And there's a lot going
(01:13):
on right now within the Trump administration things that.
Speaker 2 (01:18):
You can like or not like the policy.
Speaker 1 (01:21):
But I'm not really looking to talk policy so much
these days as I am about the legalities of the policies,
because whether I whether or not I like a policy
isn't the only thing that is a factor for me
in terms of whether I support it. Right if there's
if there's an outcome that I prefer, but you have
(01:43):
to do something illegal to get there, then I won't
support it. Not just because I'm, you know, extra prim
and proper about obeying the law, although probably one should be,
but also because if you allow a politician to break
the law to get to an outcome that you liked,
then four years later or eight years later, a politician
(02:05):
is going to break the law and get to an
outcome that you don't like. And what are you going
to say against it When you said, well, my guy
could break the law, just not your guy. That's not
gonna go over very well. All right, So, Josh, welcome
back to KOA. It's good to have you here.
Speaker 3 (02:18):
Thanks for having me.
Speaker 2 (02:19):
I want to dig in.
Speaker 1 (02:20):
With you a little bit on this whole kill mar
Abrago Garcia thing. And it's interesting in that since I
booked you on the show. The story just it changes
and it changes and it changes, and it just keeps evolving.
Speaker 2 (02:36):
So before I ask.
Speaker 1 (02:37):
You a specific question, why don't you like, if you
were teaching a class where you were going to talk
about this thing, you were going to set it up
first and then ask questions of your students.
Speaker 2 (02:49):
Set it up for us.
Speaker 1 (02:51):
What do we need to know about the situation right now?
Speaker 2 (02:54):
How do you frame it?
Speaker 3 (02:56):
So this is an unusual case. So we had a
number of aliens who were removed to this El Salvadorian prison,
most of them Trump has said should have been removed.
Right There were members of MS thirteen, members of Trenderragua's
mother or some other gang. The government has conceded that
Garcia should not have been removed. There was a court
(03:18):
order saying do not remove him because he faces persecution
in his home Countryville Salvador. But once he was removed,
now Trump says we can't get him back because he's
in the custody of the Salvadorian government, and the president
of El Salvador, Bukeli, said, we're not gonna give him
back now. Of course, you know, and I know that
Trump asked him he would, but Trump's not gonna make
(03:39):
the request. What's weird is that a judge in Maryland
basically ordered Trump to bring him home, and the government said,
you are a judge, you cannot dictate foreign policy. This
case goes the Supreme Court, and the Supreme Court basically says, well,
words can't require Trump to do this, but Trump should facilitate.
(04:04):
That's where these facilitate the return of Garcia. Now Trumps said,
all right, We've done everything we can. We can't do
anything else, and that's it.
Speaker 2 (04:11):
He stuck there.
Speaker 3 (04:12):
So this is a unusual case and he gets to
separate number one should have been removed and number two
to the courts of the power to dictate foreign policy
to the executive. Those are these two sort of issues
that collide in this case.
Speaker 1 (04:25):
Okay, let's talk about the second one first. So I
don't know if you happen to read the article by
my friend Andy McCarthy on this question of control of
the prisoner. What Andy basically argues is and this is
I guess a legal term, but a Bailee Baylor and
bai Lee something like that.
Speaker 2 (04:45):
I'm sure you know these terms. I don't.
Speaker 1 (04:48):
And what Andy argues and I would like to know
whether you agree or disagree.
Speaker 2 (04:51):
And in either case, why is that?
Speaker 1 (04:55):
Because the US is paying L.
Speaker 2 (04:57):
Salvador to hold these people.
Speaker 1 (05:01):
In effect, Al Salvador is functioning as an arm of
the American government in this situation, and they must do
whatever we tell them to do with the prisoners, and
that the Trump administrations claim that they can't control it,
and the L. Salvadorian government decides is wrong. What's your take?
(05:22):
So I am hesitant to the sagroup of Andy. He knows
this stuff quite well. I'll just mix a slightly related point.
Speaker 3 (05:28):
Even assuming that's correct, right, even assuming that this foreign
country is basically a contract or fue old US government,
there's still an aspect of foreign policy that's not being discussed.
When the President engages in diplomacy, he's considered the sole organ,
the one voice of the United States government. There are
(05:49):
many many factors that go into that. And perhaps, yes,
they could say please release this alien, but that might
affect other aspects of American foreign policy, which are courts
are not privy to. I think what the Supreme Court
basically is said in that case is the lower courts
are not considering how this affects international relations.
Speaker 2 (06:08):
Now.
Speaker 3 (06:08):
To be sure, Trump is trying to push envelope. He
wants to push this issue. But I'm not sure this
is the same thing as saying that you know that
that Trump contracts with some private contractor the whole prisoners.
I think when there's a foreign government involved than avams
are just a little bit different. Right, If there was
a contractor Trump could actually order them to do it.
If it's a foreign president, I don't know that the
(06:29):
same leverage exists.
Speaker 1 (06:31):
So the lower court ordered the Trump administration to effectuate
in facilitate the return of mister Abrago Garcia. The Supreme
Court took out the word effectuate and just said facilitate.
And this gets kind of deep in the weeds here,
But I think probably most of my listeners understand that
(06:53):
the Supreme Court is very very careful how they choose
their words.
Speaker 2 (06:56):
So what does that word mean and what does it
not mean?
Speaker 1 (07:00):
Right?
Speaker 3 (07:00):
So that's the one hundred million dollar question, right, What
does facilitate mean? The way I understood it is that
the government must take whatever steps it can domestically to
permit the return of Garcia. I think they can, you know,
make the request they can arrange transportation from El Salvador
(07:21):
back to the United States. They can pryor whatever transports
you needed within El Salvador from the prison. What I
don't think they can do is issue in order to
Bukeli saying you must release him again, I think, and
I appreciate your point a few minutes ago. Whatever you do, now,
imagine what happens in four years. I mean, you know,
(07:42):
imagine in forty years for pressent Kamala Harris or Tim Waltran.
When else, and you know, a court issues in order
seeing that you must you know, negotiate with some foreign
power over some matter that's within your discretion. It gets
a little bit dicey. And so there's an expression, bad
cases make bad Lafe. This is a very bad case
and the centric it's a really, really really bad law And
(08:05):
whatever sympathy I have Regarcie, I think it's to be
tempered by the sorts of presence or being set on
a day by day basis.
Speaker 1 (08:11):
My gut instinct on this, and this is not talking
as a wanna be lawyer, just talking as a citizen.
My gut instinct is that the Trump administration overreached and
did something they probably shouldn't have done with the not
necessarily deporting him, but deporting him too. L salvad Or
in particular. And the judges who are not the Supreme
(08:33):
Court but the lower courts are also overreaching in their response.
Speaker 2 (08:37):
To the Trump administration. That's kind of my gut feel
on it.
Speaker 3 (08:42):
You are correct. Trump has a bad tendency to make
judges of react, and in turning, the judges overreact against Trump.
It's this terrible vicious cycle. And in this process, so
much is being done so quickly. I mean, just in
the abstract, will you ever made that a federal judge
would tell the president to turn on a military plane
(09:04):
with that would be fathomable, but it happened like a
couple weeks into the administration. So Trump, yes, overreach, has
tried to set new precedents, and the courts in turn
reach even further. The latest incident is that the judge
in DC, Judge Boseburg, wants to see hold the entire
Trump administration and contempt and it's appoint a special prosecutor
if there any criminal charges are appropriate, so you might,
(09:24):
you know, try to have the Attorney general dieted. Right,
we are uncharted waters and no pun intended. We are
really going out where we've both never gone before.
Speaker 1 (09:33):
We're talking with Josh Blackman, professor of law at South
Texas College of Law in Houston. So the Boseburg thing
is about he ordered the administration not to deport a
bunch of people, and it wasn't so much that they
weren't deportable, but his take was they hadn't gotten the
due process yet that they needed to be deported. And
then there's this fight about well, was the plane already
(09:56):
in the air, and the judge seems to think that
the Trump administration defied his order to.
Speaker 2 (10:02):
Keep those people here for now.
Speaker 1 (10:05):
And what I feel like we're drifting toward, Josh, is
that famous Andrew Jackson thing about John Marshall. Right, Justice
Marshall has made his ruling, Now let him enforce it.
Speaker 2 (10:17):
And I think that would be kind of bad for everybody.
Speaker 3 (10:21):
So just I'll give you guys a update that never
actually happened. It's this common myth that never happened. John
Marshall never said it. And the reason why John Marshall
never said it is that Andrew. I'm sorry that Andrew
Jackson never said it.
Speaker 2 (10:33):
Uh huh.
Speaker 3 (10:34):
I didn't say it because John Marshall never actually ordered
issue in order against the government.
Speaker 2 (10:38):
Oh my gosh, I love it.
Speaker 3 (10:40):
Yeah, the case called Workser Services Georgia goes case against Georgia,
not the US government, So the US was party. There's
nothing for Jackson to ignore.
Speaker 1 (10:47):
But it's still a great concept, isn't it.
Speaker 3 (10:50):
It really is. I think the better example is actually
President Lincoln. People don't know this, so you've never heard
the dread Scott decision. Right, dread Scott said that people
of African descent con nefmy citizens. Okay, what did Lincoln do?
He issued passports to black citizens. He took an action
that was in consistent with dred Scott. Now what was
(11:13):
his argue as well? Dred Scott by Sanford, the US
government wasn't a party to the case. I'm not bound
by it. So President done that before. What it's a
little bit different here is now there's an order running
directly against Trump. I think, look, we went through this
with Muller. Can you indict the president? I think we're
have a special prosecute and investigate Trump the next four
years basically Muller all over again. It's like nothing changed.
Speaker 2 (11:35):
Let's see.
Speaker 1 (11:37):
Donald Trump has suggested, although I suspect he may be
trolling people, but it's hard to tell these days, that
he wouldn't mind with some of our very worst criminals,
American citizen criminals, sending them to El Salvador or somewhere
else to serve prison time there. Now, of course, the
(11:57):
first thought into my head was, what do we have
a big problem with prisoners escaping from our prisons here
that somehow we need to send them somewhere else. But
in any case, my question for you is do you
think that.
Speaker 2 (12:08):
Would be legal?
Speaker 1 (12:10):
No?
Speaker 3 (12:11):
I mean again, I think Trump trolls quite a bit,
but then sometimes his trolls become real. I think there's
a huge problem deporting in American citizens to foreign prisoners. Now,
the other issue is denaturalization, which I think has to
be viewed in this context. I think Trump actually wants
to denaturalize certain people who obtain immigration staff through fraud
(12:33):
and then deport them to these prisons. Right, that's actually
a slightly different issue. You're no longer a citizen, and
there's actually a statute that says if you obtain your
citizenship by fraud, you can denaturalize. So you know, if
you lie in your paperwork. You get false information, you know,
sham marriages or a lodg from ways, you get citizenship.
So again, it's hard to separate the trolls from the
(12:55):
non trolls. But I think just straight up sending US
citizens to foreign prisons is not.
Speaker 2 (13:00):
Going to fly.
Speaker 1 (13:01):
Okay, later for listeners, I'm going to play some audio.
I'm not going to take Josh's time with it now,
But yesterday Press Secretary Caroline Levitt gave a press conference,
the second half of which was an absolutely heartrending comments
by the mother of Rachel mourn talking about how an
illegal alien, not the one we're talking about today, but
(13:22):
brutally raped and murdered and just savaged her daughter.
Speaker 2 (13:26):
It was really moving. In fact that the White House.
Speaker 1 (13:29):
Press Court in the room afterwards was they were almost speechless,
and they were saying to her you could hear when
the microphone was still on, like We're so sorry for
your loss.
Speaker 2 (13:36):
They weren't even asking questions. It was amazing.
Speaker 1 (13:39):
But before that, Josh, Caroline Levitt dumped an entire fifty
five gallon bucket of derogatory information on the head of
kilmar Abrego Garcia. Right, this and that information where they
think he's a gang member, with a little more evidence
than they gave before. Not proof, but a little more
circumstantial evidence than.
Speaker 2 (13:57):
The game before.
Speaker 1 (13:58):
Two different file with state or local police in the
state of Maryland where his I guess common law wife,
I don't know that they're married, filed for orders of
protection against him, and just some other stuff that was
again almost evidence, but it was an immense amount of
stuff that sure does.
Speaker 2 (14:20):
It shor did a lot to diminish Let's.
Speaker 1 (14:23):
Say, the way the media is trying to talk about
Abrago Garcia as you know, a father from Maryland.
Speaker 2 (14:30):
So here's my legal question for you.
Speaker 1 (14:33):
I suspect that the Trump administration didn't know any of
that when they deported him. I suspect somebody went to
try to find bad information about him so they could
cover their collective asses since they sent him to El Salvador.
Does it matter if they knew that already or if
(14:54):
they found it later when it comes to how a
judge would rule as to whether the administry creation really
does need to bring him back.
Speaker 3 (15:02):
Uh, You're probably right about this. I doubt they knew
any of this. I think when they removed him, it
wasn't because of any domestic situation. Is because they thought
he was a member of a gang. Maybe asked the
follow up question doesn't matter. That might matter one day
if he's ever return to the United States soil and
they can see that his removal was unlawful. But until
(15:23):
his return to a soil, I know there's much that
can be done right again. This is sort of this
underlying issue. There was a wrong. The government's basically said
there was a wrong, and people might not like to
hear this, but there's not always a remedy for wrong.
In other words, people look to the courts fix any
problem in the world. I don't think that's a correct
(15:45):
view of the world. Courts have limited power and jurisdiction.
Sometimes the government does stuff that's wrong and the courts
are powerless to help this. Of course, think they have
the power, but I think there's an aspect of humility.
Speaker 2 (15:57):
Here that has to be said aloud.
Speaker 3 (16:00):
Not every wrong can be remedied by a court.
Speaker 2 (16:03):
I think that's a great place to leave it.
Speaker 1 (16:05):
Josh Blackman is Professor of Law and Centennial Chair of
Constitutional Law at the South Texas College of Law in Houston.
Always love talking to you Josh, thanks for making time
for us.
Speaker 2 (16:15):
Thank you, sir. Talk soon, all right, you got it.
The Ross Kaminsky Show News
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