There are a slew of legal challenges to Trump’s war on immigrants: there are people illegally sent to Nayib Bukele’s concentration camp, most notably Kilmar Abrego Garcia (whom Chris Van Hollen managed to meet yesterday); people sent to CECOT with no due process (including people with pending asylum claims and others picked up by mistake); grad students targeted for free speech; grad students targeted for low-level run-ins with the law; a US-born citizen, Juan Carlos Lopez-Gomez, detained for unlawful entry but since released; and at least three US citizens informed they must self-deport within seven days because their parole had been withdrawn.
Henrry Josue Villatoro Santos is a fairly unique case. He was arrested to great fanfare in March, with Pam Bondi boasting over and over she had caught one of the top leaders of MS-13.
He was arrested not — as Bondi suggested — based off probable cause he was the top leader of MS-13. Rather, he was arrested based on an outstanding administrative immigration warrant and weapons purportedly found in a plain view search of his house, for which he was charged with possession of a firearm by an alien.
9. After knocking and announcing their presence to no avail, members of the FBI’s Special Weapons and Tactics (“SWAT”) Team breached the front and rear doors of the residence. After breaching the front door, SWAT agents observed VILLATORO in an alcove leading to the residence’s garage. VILLATORO ducked behind a small wall out of view and did not comply with the agents’ demands that he exit the residence. After agents deployed a stun grenade, VILLATORO eventually came close enough to the front door to be pulled out of the residence.
10. VILLATORO was taken into custody on an outstanding administrative immigration warrant. When VILLATORO was being prepared for transport from the residence, he confirmed that the bedroom in the garage was his room and that a jacket inside that room was his.
11. FBI agents and TFOs proceeded to search the residence. Inside the aforementioned garage bedroom, a Taurus, model G2C, 9-millimeter handgun bearing serial no. ACH119455 was observed in plain view on a shelf near the bed. Based on my training and experience, I am aware that Taurus firearms are not manufactured in the Commonwealth of Virginia. Furthermore, the words “TAURUS ARMAS MADE IN BRAZIL” are stamped into the handgun’s slide next to the serial number.
12. In that same garage bedroom, agents located three additional firearms, ammunition, and two suppressors.
Less than two weeks later, DOJ moved to dismiss the case against Villatoro. They moved to get rid of the case, their claims, and Villatoro himself the easy way, by quick and due process-free deportation.
On Tuesday, magistrate judge William Fitzpatrick granted DOJ’s request (without requiring DOJ to offer the reason to dismiss), but granted a continuance to provide Villatoro a way to challenge deportation to CECOT.
Yesterday, Fitzpatrick granted Villatoro’s request for a stay so he can appeal the dismissal and try to stave off deportation to CECOT.
Villatoro’s request for an emergency stay cited the effect that the evidence-free claims that Pam Bondi, among others, has made — just like she has been with Abrego Garcia.
Through its very public pronouncements and attacks on Mr. Villatoro Santos, including bellicose statements by the Attorney General, the FBI Director, the Virginia Governor, and President Trump himself, the Government has effectively placed a target on Mr. Villatoro’s back: if he were to be deported to El Salvador, there is no doubt he will immediately be detained at CECOT without trial, and there will be no way out from there. And to be clear, this life-altering fate would result from the unproven allegations of a government that chose to forego criminal prosecution, where there is due process and a burden of proof to meet, in favor of deportation to a country in which there is little to no respect for the rule of law. Mr. Villatoro Santos faces the risk of an effective life sentence without trial, or worse.
If Abrego Garcia is ever brought back to the country, Pam Bondi’s inflammatory allegations against him may limit the government’s ability to dictate his fate; she obviously has prejudiced his ability to get a fair hearing. But Villatoro (who has not contested he had the guns) is in the country and so may be able to make something of the way Bondi claimed him to be something he’s probably not.
It’s not just that Trump’s Administration is deporting people without due process. He’s deporting people without due process because he needs to sustain false claims about them, to sustain a myth about invasion that Stephen Miller used to get Trump elected.
Meanwhile, Trump’s false claims are collapsing at a more significant level.
On one level, there’s Bukele’s claims to oppose MS-13. As I noted here, there has been isolated reporting on Bukele’s interest in preventing the real story of his relationship with MS-13 from being made public.
Asha Rangappa updates that with a description of how both Bukele and Trump have the need to claim their relationship with MS-13 is something it is not.
El Salvador has suffered from gang violence, led by Mara Salvatrucha, or MS-13, following decades of civil war from 1979 to 1992. According to an indictment brought by the Eastern District of New York against thirteen MS-13 gang members in 2022, various El Salvadoran administrations since the war ended entered into a “truce” with MS-13, in which the gang agreed to reduce homicides in the city “in exchange for transfers to less secure prisons, improved prison conditions, conjugal visits, cash payments, and other benefits and privileges.” The “truce” came to a halt, however, in 2015 after the U.S. government, which wanted to curb MS-13’s activity in the United States and bring them to justice here, increased pressure on El Salvador to return to restrictive prison conditions for gang members and extradite some of them to the U.S. In retaliation for the “truce” being lifted, MS-13 increased its violence both in El Salvador and in the U.S. In fact, the first Trump Justice Department created a task force, called Task Force Vulcan, to crack down on MS-13 in the U.S. – which is what led to the federal indictment noted earlier.
Enter Bukele. Bukele was elected in 2019, winning on a platform that promised to (once again) “crack down” on gang violence. But his party, Nuevas Ideas, began secretly working to gain the support of a critical group: Yep, MS-13. Bukele and his party negotiated with the gang to bring back the “truce,” which would include (according to the federal indictment) “financial benefits, control of territory, the ability to run the gang from prison, and the early release of gang members.” MS-13 also wanted assurance that they wouldn’t be extradited to the U.S., where they would face more punitive measures. (Having studied the drug cartels in Colombia, this was reminiscent of Pablo Escobar’s mantra, “Mejor una tumba en Colombia, que una carcel in los Estados Unidos” – which means, “Better a grave in Colombia than a jail cell in the United States.”) The same day Bukele’s party received a legislative majority in 2021, it removed the Attorney General and five members of the Supreme Court who had been working with the U.S. to take real action against MS-13. Buekele also released a major MS-13 leader whom the U.S. was seeking for extradition from prison.
In exchange, MS-13 “agreed to reduce the number of public murders in El Salvador, which politically benefitted the government, by creating the perception that the government was reducing the murder rate.” Indeed, Bukele’s popularity is the result of his so-called “Territorial Control Plan,” which involved building his supermax prison and his plan of mass incarceration – a plan which he credits for the drop in violence since he took office. Of course, the citizens of El Salvador aren’t privy to the secret negotiations Bukele made with MS-13 – details that were going to be made public when the U.S. government’s case against the MS-13 defendants went to trial. Which may explain why the Trump administration quietly dropped these charges last week and put the charged MS-13 members on the third plane bound for El Slavador (and which included Abrego Garcia). Among the defendants was one of the highest-ranking leaders of MS-13, Cesar Humberto Lopez-Larios, who was arrested last June and added to the earlier indictment (and who almost certainly will not face real punishment in El Salvador). A former FBI agent who spent years working on this and other gang cases called it “a historical loss,” especially in terms of getting critical intelligence about MS-13’s operations and members in the United States.
In short, both Trump and Bukele appear to be complicit in a plan to allow MS-13 to operate in El Salvador on its own terms, in exchange for making it look like both are “cracking down” on the gang in their respective countries. Of course, the fact that MS-13 will continue to operate in cahoots with the El Salvadoran government means that citizens of that country who are victims of the gang will continue fleeing to the United States, undercutting the Trump administration’s claim that it is trying to end the “invasion” of asylum seekers. Then again, Trump needs a steady influx of people to continue trying to cross the border in order to keep claiming the “national emergency” he is using to expand his authority.
There’s a flip side to Trump’s propaganda, involving Trump’s false claims about Tren de Aragua.
Even at the Global Threats Hearings on March 26, otherwise focused on Mike Waltz’ Signal chat, Democrats asked Tulsi Gabbard why Tren de Aragua, which Trump had just declared was invading the country in a matter akin to war, was not even mentioned among the IC’s description — prioritized as the primary threat for the first time — of transnational actors threatening the country.
Western Hemisphere-based TCOs and terrorists involved in illicit drug production and trafficking bound for the United States endanger the health and safety of millions of Americans and contribute to regional instability. Fentanyl and other synthetic opioids remain the most lethal drugs trafficked into the United States, causing more than 52,000 U.S. deaths in a 12-month period ending in October 2024. This represents a nearly 33 percent decrease in synthetic opioid-related overdose deaths compared to the same reporting time frame the previous year, according to CDC provisional data, and may be because of the availability and accessibility of naloxone.
Mexico-based TCOs—including the Sinaloa Cartel and the New Generation Jalisco Cartel—remain the dominant producers and suppliers of illicit drugs, including fentanyl, heroin, methamphetamine, and South American-sourced cocaine, for the U.S. market. Last year, official points of entry along the U.S.-Mexico border were the main entry point for illicit drugs, often concealed in passenger vehicles and tractor trailers. However, some TCOs likely will at least temporarily change their smuggling techniques and routes in response to increased U.S. security force presence at the border.
Since at least 2020, the growth of Mexico-based independent fentanyl producers—actors who are autonomous or semiautonomous from Mexican cartel control—has increasingly fragmented Mexico’s fentanyl trade. Independent fentanyl producers are attracted to the drug’s profitability and the low barriers to market entry, including the ease of synthesizing it using basic lab equipment and few personnel.
Colombia-based TCOs and illegal armed groups are responsible for producing and exporting the vast majority of cocaine that reaches the United States, some of which is transshipped through Ecuador, contributing to an uptick in violent criminal conflicts that spurs regional migration.
Mexico-based TCOs are ramping up lethal attacks in Mexico against rivals and Mexican security forces using IEDs, including landmines, mortars, and grenades. In 2024, there were nearly 1,600 attacks on Mexican security forces using IEDs, surging from only three reported attacks between 2020- 2021. The sophistication of TCO tactics is reshaping Mexico’s security landscape and has heightened the risk to security forces.
Tren de Aragua is not mentioned in the report; Venezuela is mentioned once (because, with Mexicans and Guatemalans, they are the migrants most commonly trying to enter the country through the Mexican border). El Salvador and MS-13 are likewise not mentioned.
But since then, the IC has done a National Intelligence Estimate that formalizes what became clear in the Threats Hearings. Of the 18 intelligence agencies who contributed to the assessment, only the FBI even claimed that the Venezuelan government was involved with TdA.
The National Intelligence Council, drawing on the acumen of the United States’ 18 intelligence agencies, determined in a secret assessment early this month that the Venezuelan government is not directing an invasion of the United States by the prison gang Tren de Aragua, a judgment that contradicts President Donald Trump’s public statements, according to people familiar with the matter.
[snip]
The intelligence product found that although there are some low-level contacts between the Maduro government and Tren de Aragua, or TdA, the gang does not operate at the direction of Venezuela’s leader. The product builds on U.S. intelligence findings in February, first reported by the New York Times, that the gang is not controlled by Venezuela.
An unnamed person in Tulsi’s office accused the entire IC of a Deep State plot, pitting the DNI aggressively against her subordinates.
When asked about the findings, the Office of the Director of National Intelligence dismissed it as the work of “deep state actors” working in conjunction with the media.
“President Trump took necessary and historic action to safeguard our nation when he deported these violent Tren de Aragua terrorists,” the statement said. “Now that America is safer without these terrorists in our cities, deep state actors have resorted to using their propaganda arm to attack the President’s successful policies.”
All of it — all of Trump’s March campaign to invoke the Alien Enemies Act to start deporting people without due process — all of it is based on wildly unfounded propaganda, propaganda about who Bukele is, propaganda about what TdA is, propaganda about who these makeup artists and soccer players are.
There is a great deal of angst among centrist Democratic consultants and pundits that Trump will always have the upper hand on immigration. And while it’s true that that’s what has prevented Trump’s polling from cratering, it is already the case that Americans don’t like specific aspects of Trump’s immigration policy.
The vast majority — 82% — of Americans believe Trump should obey court orders even if he disagrees with them, and 56% think he should stop “deporting people” (again, very vague) specifically:
But the details of the policy Trump is carrying out are even more removed from the polling — even more unpopular, reflecting deep reservations among the public about what the president is doing.
For example, when various pollsters asked if they would support deporting immigrants who have been here more than 10 years (as in the case of Abrego Garcia), U.S. adults said “no” by a 37 percentage point margin; Americans disapprove of deporting immigrants who have broken no laws other than laws governing entry; they oppose deporting U.S. citizens convicted of crimes to foreign jails, such as CECOT, and they oppose housing migrants at Guantanamo Bay while they are processed. All of these are policies the Trump administration has now floated or is actively carrying out.
But here’s what else the polling never accounted for: even in real time, it was clear Trump’s strength on immigration was based on a massive campaign of propaganda (just as Trump had tried with less success in 2018 and 2020).
More than $247 million was spent in the first six months of this year on television, streaming platform and digital ads that mention immigration, according to AdImpact, which tracks campaign advertising. That is $40 million more than ads that mention any other issue.
Over 90 percent of the ads supported Republican candidates and were paid for by their campaigns or political action committees backing them.
The level of spending underscores how important Republicans view border security and immigration in this year’s elections. While polls show voters overall rank issues at the border as less important to them than the economy, inflation and protecting democracy, Republican voters consistently rank it as among the most important.
The Washington Post analyzed the transcripts, images and on-screen text featured in more than 700 campaign ads that mention immigration and that ran from January through June for the presidential and Senate races, as well as congressional primaries and major state campaigns.
Taken as a whole, the ads convey an unrealistic portrait of the border as being overrun and inaccurately characterize immigrants generally as a threat, of which there is little evidence. FBI data show U.S. border cities are among the nation’s safest. And a 2023 report from a group of economists found immigrants are at least 30 percent less likely to be incarcerated than U.S.-born individuals.
Click through to that story, because it was extremely comprehensive, but also just a single story amid a campaign focused on other things.
Donald Trump won election by staging spectacular propaganda in places like Aurora, Colorado, where Stephen Miller tried to drown out the Republican Mayor’s debunking of his false claims. Donald Trump won election by falsely accusing a productive group of Haitian immigrants were eating house pets. Trump won election by claiming that a bunch of criminal aliens safely held in US prisons were, instead wandering the streets.
Donald Trump won, in significant part by stoking fear of immigrants, based off a flood of propaganda that Democrats only responded to with whack-a-mole efforts to combat individual lies.
Thus far, Democrats are still largely fighting a game of whack-a-mole, though one facilitated by human interest and the Fifth Amendment.
Thus far, the campaign to fight back against Trump’s authoritarian immigration crackdown has focused on individual stories: Abrego Garcia’s efforts to raise his three American citizen children, Rumeysa Öztürk’s research on how to make social media useful, Mohsen Mahdawi’s empathy for both Palestinians and Jews. These are individuals, and once they are viewed as individuals, most Americans don’t support their draconian treatment.
But it has yet to account for the fact that it is based on far bigger lies, bigger lies that Stephen Miller manufactured to justify claiming expansive powers in the name of fear.
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Donald Trump, Nayib Bukele, and Kristi Noem love to make fascist spectacle.
They did it with the video showing the arrival of hundreds of people Trump sent to Bukele’s concentration camp. Noem did it with her visit to the camp. And they did it with the planned theater yesterday, including the staged hot mic moment where Trump told Bukele he wanted to send “homegrowns” to the concentration camp at CECOT.
They do it because fascist spectacle inspires fear. They do it because fascist spectacle goes viral, including with the help of data mules who purport to oppose its content.
They do it because it short circuits rational thought, overwhelming such rational thought with emotion.
The effect of yesterday’s fascist spectacle led virtually everyone to focus on a detail that won’t help the immediate fight before us — Trump’s interest in deporting “homegrowns,” an interest he has stated openly over and over, starting during campaign — rather than on details that might help Kilmar Abrego Garcia, and in the process help to prevent similar treatment of other migrants and, ultimately, American citizens.
Few people raised any of the questions posed by Trump’s latest attempt to retcon a legal case he already blew. Let’s start with the big one:
Why did Trump free someone, Abrego Garcia, whom Stephen Miller insists is a dangerous terrorist?
The latest theory about Abrego Garcia — one DOJ first rolled out at the Fourth Circuit — is that when the Trump Administration designated MS-13 a foreign terrorist organization earlier this year, it meant Abrego Garcia was no longer eligible for the withholding of removal granted to him in 2019.
It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador, given his claims about threats from a different gang. Final Removal Order 7–10. That conclusion was dubious then (and increasingly so now). But it has become totally untenable, given the Secretary of State’s designation of MS-13 as a Foreign Terrorist Organization in February. 90 Fed. Reg. at 10030–31.
As a result of that designation, and Abrego Garcia’s membership in that terrorist organization, he would no longer be eligible for withholding relief under the federal immigration laws. 8 U.S.C. §§ 1231(b)(3)(B)(iv); 1227(a)(4)(B). And as even Plaintiffs admit, the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection. See Reply 8. To be sure, the Government did not avail itself of that procedure in this case. But through the lens of the public interest, the district court’s stunning injunction does not fit that error. A mistake of process does not warrant the unprecedented remedy ordered—one that demands the return of a foreign terrorist from the foreign sovereign that agreed to take him.
Before this claim, DOJ barely mentioned two earlier rulings from 2019 (onetwo) asserting Abrego Garcia could not be released because of hearsay ties to MS-13, relying instead on procedural arguments. In a footnote, Judge Xinis ruled that DOJ did not rely on it before her.
Defendants did not assert—at any point prior to or during the April 4, 2025, hearing—that Abrego Garcia was an “enemy combatant,” an “alien enemy” under the Alien Enemies Act, 50 U.S.C. § 21, or removable based on MS13’s recent designation as a Foreign Terrorist Organization under 8 U.S.C. § 1189. Invoking such theories for the first time on appeal cannot cure the failure to present them before this Court. In any event, Defendants have offered no evidence linking Abrego Garcia to MS-13 or to any terrorist activity. And vague allegations of gang association alone do not supersede the express protections afforded under the INA, including 8 U.S.C. §§ 1231(b)(3)(A), 1229a, and 1229b.
Finally, I turn to the Government’s assertion that the public interest favors a stay because Abrego Garicia is a “prominent” member of MS-13 and is therefore “no longer eligible for withholding relief.” Mot. for Stay at 14–15. Whatever the merits of the 2019 determination of the Immigration Judge (“IJ”) regarding Abrego Garcia’s connection to MS-13,8 the Government presented “[n]o evidence” to the district court to “connect[] Abrego Garcia to MS-13 or any other criminal organization.” Dis.t Ct. Op. at 22 n.19; see also id. at 2 n.2 (“Invoking such theories for the first time on appeal cannot cure the failure to present them before this Court.”). Indeed, such a fact cannot be gleaned from this record, which shows that Abrego Garcia has no criminal history, in this country or anywhere else, and that Abrego Garcia is a gainfully employed family man who lives a law abiding and productive life. Tellingly, the Government “abandon[ed]” its position that Abrego Garcia was “a danger to the community” at the hearing before the district court. Dist. Ct. Op. at 22 n.19. The balance of equities must tip in the movant’s favor based on the record before the issuing court. An unsupported — and then abandoned — assertion that Abrego Garcia was a member of a gang, does not tip the scales in favor of removal in violation of this Administration’s own9 withholding order. If the Government wanted to prove to the district court that Abrego Garcia was a “prominent” member of MS-13, it has had ample opportunity to do so but has not — nor has it even bothered to try.
The Government’s argument that there is a public interest in removing members of “violent transnational gangs” from this country is no doubt true, but it does nothing to help the Government’s cause here. As noted, the Government has made no effort to demonstrate that Abrego Garcia is, in fact, a member of any gang, nor did the Government avail itself of the “procedural mechanism under governing regulations to reopen the immigration judge’s prior order[] and terminate its withholding protection.” Mot. for Stay at 16–17. The Government may not rely on its own failure to circumvent its own ruling that Abrego Garcia could not be removed to El Salvador.
8 Even then, the Government’s “evidence” of any connection between Abrego Garcia and MS-13 was thin, to say the least. The Government’s claim was based on (1) Abrego Garcia “wearing a Chicago Bulls hat and hoodie,” and (2) “a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.” S.A. 146 n.5; Mot. for Stay Add. at 10–11.
9 Of note, the IJ’s 2019 decision, which granted Abrego Garcia withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A) because he faced threats to his life from an El Salvadoran gang that had targeted him and his family, was during President Trump’s 2016–2020 term in office. That decision became final on November 9, 2019, and was not appealed by this Administration.
But let’s take this retcon on its face. Stephen Miller has now decided, with no evidence provided, that Abrego Garcia is a “prominent” leader of MS-13, a gang on which DOJ focused closely for the entirety of the first Trump Administration. Miller says that Abrego Garcia is a danger to the community. Miller keeps screeching about terrorism.
If what Miller is saying now is true, it means that Trump released a dangerous criminal back in 2019. Why did Trump leave this man on the street to do dangerous things like raising three American citizen children for six years?
Update: Roger Parloff has a good summary of the flimsy case that Abrego Garcia has ties to MS-13.
Why is Trump so weak that he can’t make requests of the dictator of a small country?
Next consider Pam Bondi’s claim that, notwithstanding public reports that the detainees are just being held in CECOT for a year, notwithstanding Kristi Noem’s visit to the concentration camp, notwithstanding that the government just sent another ten people down there, the government is helpless to get Abrego Garcia back.
What does this say about Trump’s weakness as a President?
What kind of weak ass man can’t even make a request of a small Central American nation?
How does Trump think he’ll negotiate with Xi Jinping if he can’t even make a simple request of Bukele?
Will Stephen Miller send adjudged terrorists like Stewart Rhodes and Joe Biggs to Bukele’s concentration camp? Will Miller send DC US Attorney Ed Martin there, for palling around with adjudged terrorist Kelly Meggs, the same kind of associational ties used to send at least one of the men on the flights on March 15 to CECOT?
Next, let’s take Trump at his word that he wants to send “homegrowns” to CECOT.
Should Stewart Rhodes and Joe Biggs — both adjudged to be terrorists, both radicalized in the United States — both be packing their bags for the concentration camp? If Ed Martin has been palling around with adjudged terrorist Kelly Meggs — the same kind of associational guilt used to send at least one of the Venezuelans in the March 15 flight — should he worry about packing his bags?
Will Stephen Miller send his terrorists to the concentration camp?
Is Miller using the designation of terrorism just as a way to criminalize brown people, or will he send terrorists from his own tribe to the concentration camp?
Why is Stephen Miller terrified of — why does he want you to be terrified of — loving fathers?
Miller has been accusing journalists who describe the contributions Abrego Garcia has made as a loving father to three American citizen children of lying, because journalists refuse to repeat his bleated accusations of terrorism with no evidence. Miller and Pam Bondi are working hard to get people to dumbly adopt their accusations.
But why is Miller so afraid of journalists describing Abrego Garcia as what he is, a father from Maryland?
Why does Pam Bondi keep destroying the careers of DOJ attorneys because they tell the truth?
When DOJ decided to retcon this case, they scapegoated the lawyer from whom they had withheld any sound legal basis, Erez Reuvani, along with his supervisor, both of whom were put on leave.
This, in spite of the fact that Drew Ensign called Reuveni “top notched” when he promoted him just weeks earlier.
In a March 21 email announcing Mr. Reuveni’s promotion to acting deputy director of the department’s Office of Immigration Litigation, his boss, Drew C. Ensign, lauded him for working on cases filed against sanctuary cities accused of defying federal immigration laws, and for generally helping to expand the department’s litigation activities.
“I want to thank those who submitted interest for the acting positions — we had outstanding choices, which helps go to show the excellent caliber of our team,” Mr. Ensign wrote.
Mr. Ensign has been handling a separate immigration case, one in which he has been defending the Trump administration’s use of a rarely invoked wartime law, the Alien Enemies Act, to summarily deport scores of Venezuelan migrants accused of belonging to the street gang Tren de Aragua.
As DOJ has provided increasingly contemptuous updates to Judge Xinis, the AUSA who had appeared before her, Tarra DeShields, has backed off vouching for the arguments DOJ has made, instead listing her involvement as “fil[ing]” updates.
Finally, Ensign filed a notice of appearance and, apparently, took on this dogshit argument himself, as he did the Alien Enemies Act before Judge Boasberg.
Obviously, even committed immigration lawyers are unwilling to make these arguments. How many career attorneys will Pam Bondi chase away while floating these arguments?? How many careers will she destroy because the actions of the Trump administration have no defense in the law?
Has Bondi’s DOJ lost all presumption of regularity?
And the whole process of admitting fault, suspending the person who (along with several others) told that truth, and then inventing new theories after the fact has to start destroying the entire concept of presumption of regularity for DOJ.
Even before DeShields started getting cold feet, even before Stephen Miller started disclaiming the error that everyone has admitted, Ben Wittes raised this question: At what point are judges entitled to demand proof from DOJ lawyers for their claims?
Will Xinis demand that DOJ document their new theory that Trump’s terrorist designations retroactively make judge’s orders disappear?
Would Marco Rubio deport his own grandfather to a concentration camp if Stephen Miller told him to?
Abrego Garcia’s story — of a man who came to the US to seek a better life without proper paperwork, but who was allowed to stay and build a life — is not all that different from the story of Marco Rubio’s own grandfather, who was almost denied entry in part because of suspicions he had communist sympathies and even then only allowed to stay as a parolee.
It had been almost three years since he had last set foot in the United States, and he no longer had the proper credentials to enter. They told him he could stay for the time being, but if he wanted to avoid deportation, he would have to plead his case.
“I always thought of being here in the United States as a resident, living permanently here,” the slight 62-year-old grandfather, speaking through an interpreter, said at a hearing five weeks later. He said that he had previously returned to Cuba because he did not want to be a burden on his family in the United States, but that the Cuban government had grown too oppressive and he feared what might happen if he stayed.
The immigration officer was unmoved. He did not see an exiled family man — just someone who had no visa, worked for the Castro government and could pose a security risk.
“It is ordered that the applicant be excluded and deported from the United States,” he said matter-of-factly, according to an audio recording of the proceedings stored by the National Archives. He stopped to ask if Mr. Garcia understood.
“Yes, I do,” Mr. Garcia said plaintively.
That easily could have been the end of his American story. But someone in the immigration office on Biscayne Boulevard that day — the paperwork does not make clear exactly who or why — had a change of heart. Mr. Garcia was granted status as a parolee, a gray area of the law that meant he would not get a green card but could remain in the United States.
[snip]
Despite Mr. Garcia’s insistence that he was fleeing oppression, immigration officials raised suspicions that he might harbor communist sympathies, the records reveal. That charge, had they pursued it, could have led to a conclusion that he was a national security threat. (Details of Mr. Garcia’s immigration odyssey were reported in 2012 by Manuel Roig-Franzia in his book “The Rise of Marco Rubio.”)
In an interview, Mr. Rubio acknowledged that some would see a conflict between the stricter immigration and refugee policies he supports and his grandfather’s experience. Immigration records also show that other members of Mr. Rubio’s family — two aunts and an uncle — were admitted as refugees.
But Mr. Rubio said the difference between then and now is how much more sophisticated foreign infiltrators like the Islamic State have become, and how dangerous they are.
“I recognize that’s a valid point,” the senator said, “But what you didn’t have was a widespread effort on behalf of Fidel Castro to infiltrate into the United States killers who were going to detonate weapons and kill people.”
Last month, Trump announced the cessation of various parole programs, including a recent one including Cubans, effective on April 24. Which means, within days, Cubans could be among the Hispanic migrants that Stephen Miller packages up to send to Bukele’s concentration camp.
How many Cubans will Marco Rubio send away to a concentration camp? How many lives like Rubio’s own will the Secretary of State doom with his enthusiasm to send send loving fathers to concentration camps?
For too long Trump’s lefty opponents (liberals and progressives and those further left; anti-Trump Republicans are, in my opinion, actually far better at this) have largely failed to make Trump’s fascism a political problem. And while lawyers have done a great job of humanizing their clients — including Abrego Garcia — in public opinion, the rest of it, the contradictions and confessions of pathetic weakness, has largely gone unmentioned.
Do not abdicate making Abrego Garcia a political, as well as a legal, case. Do not get distracted by the fascist spectacle from using the fragile story rolled out yesterday against Trump. The stakes in this moment are too high.
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I keep writing about how Trump keeps retconning what he is doing legally, attempting to alter his explanations for what he’s doing, legally, when a first legal theory runs into trouble. The Trump administration has tried to retcon:
Thus far, Trump has dodged repercussions for this Choose Your Own Adventure lawyering, thanks in part to SCOTUS’ disruption of the Alien Enemies Act class act before Judge James Boasberg before he could hold anyone in contempt. There is a pending contempt request before Judge Paula Xinis in the Abrego Garcia case, but she will need to dot some Is and cross some Ts before she imposes sanctions and even there it would take time to target the sanctions against the people who deserve them.
I first IDed this Administrative retconning in the legal context because in the legal context there are rules about saying one thing and then changing your mind (though actually, I first IDed Trump’s reliance on retconning after the Haitian dogs and cats attack during the election). That is, it matters in a legal context because it may blow a legal case even in a context — such as deportations — where the President has expansive authority. The Supreme Court vastly expanded Trump’s power with the immunity decision, but his DOJ is so feckless it may end up losing anyway because they do something stupid (or at least wildly inconsistent) legally.
That’ll take time, though. Xinis will not rule quickly to avoid giving the government easy cause for reversal, and so won’t deliver the immediate punishment the government deserves.
But Trump has been retconning policies elsewhere, most especially in his rollout of tariffs.
Over the course of the last week, Trump rolled out:
Liberation day tariffs on everyone, including penguins, except the axis of authoritarians Trump idolizes
A blink
Tariffs on China
More tariffs on China
Still more tariffs on China
Even more tariffs on China
The Tim Apple exemption
A seeming reversal of the Tim Apple exemption
This is the very same policy ineptitude as we see with DOGE and in the legal context, but this time with the world’s biggest economy, and just as importantly, the glue that holds the global economy together.
In the legal context, this fecklessness — and the public retaliation on government lawyers for admitting that they’re being compartmented from real information — results in the gradual erosion of presumption of regularity, the equivalent of a house advantage that lets the government make seemingly unreasonable claims without immediate consequence.
But the presumption of regularity dissolves much more quickly in the financial context.
Justin Wolfers, who doesn’t have a substack but does have TikTok, described how Trump’s attempts to retcon his tariff policy has created two economic crises: the first created by Trump’s tariffs themselves, the second created by the retconning itself.
One of the reasons you saw the markets respond so strongly is there this crisis of confidence. It’s a crisis of confidence in the competence of the Administration. They’ve rolled out tariffs based on formula that make no economic sense. They stick with a plan where they say it’s all about one thing and then they roll it all back and say, you know what? we’ve been lying to you since Sunday when they already decided to change paths. They — tariffs on China yesterday, we were told, were 125% and today they’re 145%. I want you to stick with that for just a moment. You’ve got tariffs between two of the world’s great economic powers and people in the White House couldn’t tell you the correct tariff within 20 percentage points, which would normally be the entire trade war and they forgot whether it was 125 or whether it was 145.
In his substack, Paul Krugman likens the response to the treatment of the US economy like a developing economy.
The obvious explanation is that crazy policies have shaken investors’ faith in America, which has traditionally been viewed as a safe haven.
The topic of how Trump’s policies have messed with the bond markets – including the market for US Treasuries — is too difficult for me to cover today, but here’s more. The key point is that massive tariffs have disrupted the plumbing of the financial system, leading to soaring interest rates on U.S. government debt. That’s abnormal: rising odds of a recession usually lead to falling long-term interest rates, because the prospect of a recession raises the likelihood of future cuts by the Fed, which controls short-term rates. This time, however, rates are spiking, especially for very-long-term instruments like 30-year bonds, shown at the top of this post.
The common thread in currency and bond markets is that, thanks to Trump, dollar assets — traditionally the foundation of the global financial system — are no longer perceived as safe.
The combination of interest rates soaring amid a slump and the currency plunging despite rising interest rates isn’t what we normally expect for advanced countries, let alone the owner of the world’s leading reserve currency. It is, however, what we often see in emerging-market economies. That is, investors have started treating the United States like a third-world economy.
Did I see this coming? No, not really. Unlike the sanewashers, I knew that Trump’s policies would be irresponsible and destructive. However, even I didn’t expect him to destroy credibility accumulated over 80 years in less than three months. But he has.
And even if Trump were to backtrack on everything he’s done, we wouldn’t get the lost credibility back. The whole world, sanewashers aside, now knows that America is run by a mad king, surrounded by enablers, who can’t be trusted to behave rationally.
In court, Trump may have ways of dodging the consequences of getting caught retconning his story.
In the economy, there’s no way to unring the bell — probably not even the replacement of Trump, if that were to happen in the near term.
American financial hegemony has been built on a decades of reliability. That financial hegemony has given the US, and even US consumers, privileges other people don’t have. Importantly, that financial hegemony is the basis for tools — such as sanctions on Russia on Iran — that Trump claims to be threatening if he doesn’t get his way.
Things go boom when you try to retcon your economic explanations.
I alluded to this on Friday’s podcast with Nicole. It was inevitable that bankers and hedgies would have less patience with Trump’s equivocations than judges do, partly because of judicial comity and partly because SCOTUS will go some lengths to protect Trump.
But these are related issues. The utter fecklessness of Trump’s policy logic is consistent between law and the economy (indeed, DOGE occupies the sweet spot between the two of them). That doesn’t mean the bankers will care about all the other damage Elon Musk has been doing to the US. But it means Trump’s claim to omnipotence will start to unravel in ways that may provide opportunities elsewhere, including with Republicans who actually understand the privilege that arises from the US economic hegemony Trump is squandering.
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One of the transphobic right wing’s most annoying taunts is that Democrats can’t decide whether women are women. It is central to the long-running campaign to demonize trans people to claim that birth sex, which transphobes claim is a person’s true and immutable sex, is always immediately apparent.
Yet yesterday, Kristi Noem invoked State Secrets to cover-up the fact that she — and the agencies she runs — were unable to identify women as women. DOJ included Noem’s declaration as part of package invoking State Secrets in the Alien Enemies Act lawsuit yesterday.
Declaration of EEPB (Nicaraguan man sent and then returned from El Salvador)
Both Rubio and Noem’s declarations include language claiming that official acknowledgement of details of the deportation flights — the kinds of details Judge James Boasberg might use to hold them in contempt — is different than, “assumptions, speculation, public investigation, or informal statements.” This, mentioning “informal” reports or statements five times, is from Noem’s declaration:
Disclosure of the information sought in the Court’s Minute Order would cause significant harm to the United States’ national security even assuming some of that information has already entered public sources as a result of assumptions, speculation, public investigation, or informal statements. It is both true and well known that official acknowledgement of a fact may be damaging to national interests in a way that informal suggestions or speculation about that information is not. If the government were to confirm or deny the information sought by this Court’s Minute Order, there would arise a danger that enemies of our national security would be able to stitch together an understanding of the means and methods used to thwart their unlawful and sometimes violent conduct.
[snip]
There is a difference between official acknowledgement and informal reports: Official disclosures or acknowledgements threaten the United States’ national security interests in a way that informal reports or statements do not, because informal statements leave an important element of doubt that provides an essential layer of protection and confidentiality. That protection would be lost if the United States were forced to confirm or deny the accuracy of unofficial disclosures or speculation. [my emphasis]
But the plaintiffs’ declaration notes that after Nayib Bukele posted a propaganda video showing three planes that had brought detainees to El Salvador, with tail numbers visible, both Trump and Rubio effectively ratified by reposting the video.
In addition, public information shows that two planes were still in the air when the Court issued both its oral and written Orders. Most significantly, based on information publicized by U.S. government officials and publicly available flight data, at least two flights took off during the hearing on March 15—one at 5:26pm EDT and the other at 5:45pm EDT—and landed well after this Court’s written Order had been filed. See Pls. Resp. to Defs. Notice (ECF No. 21); see also Joyce Sohyun Lee and Kevin Schaul, Deportation Flights Landed after Judge Said Planes Should Turn Around, Wash. Post (Mar. 16, 2025). 2 And the video released by President Bukele that shows Plaintiff class members being hauled off the planes in El Salvador includes each plane’s tail number.3 That video was then reposted by both President Trump4 and Secretary of State Rubio.5
The Xitter post from Rubio, using his official Secretary of State Xitter account, specifically says, “Thank you for your assistance and friendship, President Bukele” in response to his claim that 238 members of Tren de Aragua “arrived in our country” effectively ratifying that those planes were the ones used, and that the number Bukele used was the one given to him.
Perhaps the government is prepping a claim that these are “informal” statements. But Donald Trump has fired people by tweet, over and over, and nominated a good number of cabinet members by tweet, including Noem herself.
Trump’s tweets have official effect. To claim Trump’s tweet didn’t ratify Bukele’s post is nonsense.
Rubio and Noem’s focus on the danger of official confirmation is about refusing to provide Boasberg details showing that DHS had not done adequate vetting of the detainees to sustain the claim they really were members of Tren de Aragua. Again, this is from Noem’s declaration:
In addition to flight operations, the number of TdA members on a given removal flight is also information that, if disclosed, would expose ICE’s means and methods, thus threatening significant harm to the national security of the United States. Revealing and/or confirming the number of TdA members involved would reveal key details about how the United States conducts these sorts of operations and would allow other aliens (members of TdA and otherwise) to draw inferences about how the Government prioritizes and uses its resources in immigration enforcement and counterterrorism operations.
[snip]
When the United [sic] seeks to remove individuals to a foreign country, the United States must negotiate the details of that removal with the foreign country. This requires nonpublic, sensitive, and high stakes negotiation with the foreign State, particularly where, as here, the aliens being removed have been deemed enemy aliens and members of a foreign terrorist organization. Those negotiations cover sensitive issues, including representations regarding the bases on which the individuals are being removed from the United States, which can impact the foreign State’s willingness to accept the removed aliens and the procedures it will employ in doing so.
[snip]
Similarly, if sensitive information covered by a compelled disclosure — for example, the number and nature of aliens removed to the foreign State — were to come to light — the receiving foreign State’s government could face internal or international pressure making that foreign State and other foreign States less likely to work cooperatively in the future with the United States on matters affecting its national security.
Moreover, if a disclosure were to in any way undercut or, in the eyes of a foreign State (fairly or not) cast doubt on representations made by the United States during sensitive negotiations, that could likewise make that foreign State and other foreign States less likely to work cooperatively with the United States on matters affecting its national security.
Noem is not entirely making shit up (nor is she lying, elsewhere in her declaration, that confirmation that the flights landed in Honduras could cause problems).
Bukele said he was given 238 members of TdA. It was key to his propaganda campaign. If Boasberg now finds that’s false, it might well embarrass Bukele (though he’s pretty immune from embarrassment).
The problem for Noem and Rubio, is ACLU already presented two sworn declarations asserting that the Trump Administration’s public representations were false. EEPB, for example, described being told that El Salvador would not accept him, a Nicaraguan, because it would cause “conflict.”
I overheard a Salvadoran official tell an ICE officer that the Salvadoran government would not detain someone from another Central American country because of the conflict it would cause. I also heard him say that they would not receive the females because the prison was not for females and females were not mentioned in the agreement. I then saw the ICE officer call someone, and after the call, I overheard him saying we had to be sent back.
They included a guy whose accent undoubtedly makes it clear he’s not Venezuelan, but claimed he was a Venezuelan anyway.
More alarming still, Venezuelan woman SZFR — who, like other women on one of the planes, had not yet been formally deported and so by definition should only have been on one of the planes alleged to carry TdA members — described guards on the plane acknowledging that they knew an order prohibited the departure of the plane. She also described that guards were trying to force the male detainees on the plane to sign forms admitting they were TdA members.
10. When we got on the plane there were already over 50 men on the plane. I could see other migrants walking to the plane but we took off before any additional people boarded.
11. Within a couple of minutes of take off I heard two US government officials talking and they said “there is an order saying we can’t take off but we already have.”
12. I asked where we were going and we were told that we were going to Venezuela.
13. Several other people on the plane told me they were in immigration proceedings and awaiting court hearings in immigration court.
14. We were not allowed to open our window shades.
15. We landed somewhere for refueling. We were there for many hours. We were arm and leg shackled the whole time.
16. We took off again and landed fairly quickly. I was then told we were in El Salvador.
17. While on the plane the government officials were asking the men to sign a document and they didn’t want to. The government officials were pushing them to sign the documents and threatening them. I heard them discussing the documents and they were about the men admitting they were members of TdA.
18. After we landed but were still on the plane a woman opened the shade. An officer rushed to shut the shade and pushed her down by her shoulders to try and stop her from looking out. The person that pushed her down had HOU-02 on his sleeve.
19. I saw out the window for a minute and I saw men in military uniforms and another plane. I saw men being led off the plane. Since I’ve been back in the U.S. I have seen news coverage and the plane I saw looks like the one I’ve seen on TV with migrants from the U.S. being delivered to El Salvador.
20. All the men got off the plane. The remaining women asked what happens to us? I was told that the President of El Salvador would not accept women. I was also told that we were going back to detention in the U.S. [my emphasis]
But the most important part with respect to Noem’s sworn statement that she can’t reveal details about who was on the plane is that the agreement with Bukele said he would not accept women.
And yet Kristi Noem’s DHS sent women — around nine of them — anyway.
There’s a lot that Noem is trying to cover up with her State Secrets declaration, starting with how incompetent her DHS is.
But one of the key details she’s trying to cover up is that a committed transphobe like Noem couldn’t even properly identify the sex of the detainees she was sending to El Salvador.
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