How the Abrego Garcia standoff ends

0:00On March 12, Quilmar Abrego Garcia was picked up by ICE in Prince George's County, Maryland. In the days that followed, he was deported to the country where he was born, El Salvador, except this time he wound up in its infamous Seacott prison. At Seacott, they don't let any of the prisoners have access to the outside world. On March 31st, the Trump administration said it had mistakenly deported Abrego Garcia, calling it an administrative error. On April 4th, a U.S. district judge told the Trump administration to have Abrego Garcia back in the United States by April 7th. On April 10th, the Supreme Court entered the chat and more or less agreed, saying the Trump administration needed to get Abrego Garcia back.

0:41But it's April 23rd, and he's still not back. On Today Explained, we're going to speak with the Maryland senator who sat down with Abrego Garcia in El Salvador last week and figure out how this legal standoff between the Trump administration and the courts might play out.

1:03Sean Ramos from Today Explained. We spoke to Senator Chris Van Hollen on Tuesday afternoon. We started with why he wanted to go down to El Salvador to meet with Kilmar Abrego Garcia. Well, because I wanted to let him know, number one, that I was bringing greetings from his family who haven't heard from him since he was disappeared. He was locked away. No one was able to reach him, not his wife, not his mom, not his lawyers. In fact, until this moment, I'm the only one who's communicated with him before or since. So I wanted to, number one, see if he was alive. But I also wanted to let him know that his case was something that was meaningful to every American who cares about the Constitution.

1:49And I wanted to ask the government of El Salvador to stop being complicit, complicit with the Trump administration in this illegal scheme. So it was to really defend the rights of this person, because if we don't defend the rights of this individual, we do threaten rights for everybody who lives here. And so how did you end up getting to meet him? Well, I asked, of course, the vice president. He said no. I said, if I come back next week, can I meet with them? No. Well, maybe I could get them on the phone. No. So the next day I decided not to give up. I drove towards Seacott Prison about three kilometers out.

2:39I was waved to the side of the road by soldiers, stopped me. You could see traffic continuing past me. And so I said, why are you stopping me? They said, you can't go to see, you know, Abrego Garcia. And I said, do you know how he's doing? They said, no. And I said, why can't I go? They said, we have orders. So then we had some number of press events in El Salvador with local press. And they did relent. And I think that even Bukele recognized that it was a bad look for El Salvador to not allow anybody to meet or talk with this guy, to even know whether he was alive. And so as I was sort of getting ready to go to the airport on the way home, we got a call and I ended up meeting with him.

3:31What did he tell you? Well, first and foremost, he told me he missed his family. And I told him how much his family missed him. And he said that thinking of them is what gave him strength every day. He said he had had a traumatic experience, of course, but that was his word, traumatic, both in being illegally abducted. He said he tried to make a phone call from, you know, the Baltimore. I think it was the Baltimore Detention Center. They wouldn't let him do it. And then, of course, he landed in this really awful CICOT prison. So he was traumatized. He said he hurt. He felt he was in pain. Said he hadn't, you know, committed any crimes.

4:20And he asked me to, you know, pass his message of love back to his family. And I informed him because he'd been in a total news blackout that, you know, his case was now representative of the fight for constitutional rights and due process for everybody who lives in America. And that a lot of people were working to get him out of prison in accordance with the Supreme Court 9-0 order to facilitate his return. Did he say he was in danger? Did he say he was traumatized but felt relatively safe? What was the prison condition looking like? So the first place he went was Seacott. And he said he was not in fear for safety from the prisoners in his cell.

5:12He said, if I recall right, there were about 25 prisoners in his cell. He said he was scared and traumatized by other prisoners in other cells. And these cells are packed. I mean, they sometimes have more than 100 prisoners. And he said that they would sort of call out to him and taunt him in various ways. And that did make him feel very much at risk. He told me that he'd been moved to this other prison and detention center in Santa Ana. And he told me he'd been there about eight days. This is as the time I met with him, which were sort of better conditions. But still, and I want to stress this, still no ability to communicate with anybody in the outside world and to learn anything about what's happening in the outside world.

6:01And that's why, you know, that's a violation of international law to deny somebody the ability to talk to their lawyer or family. So that's where he is sitting as he speaks. He was clearly traumatized. You know, when I we talked about his family, he he welled up, he teared. You could see a tear roll down his eyes. So he's I mean, obviously, it's a terrible, terrible situation. And to be picked off the street and have the Trump administration admit it was wrongful in court. When you guys met up, there was some photos released, and it looks like you had, like, margarita glasses or something in front of you.

6:42Where did that come from? Where exactly was this meeting? So interesting you raised that. I call this Margarita Gate. Oh. They brought him to my hotel. Well, at first they wanted to stage the meeting by the pool, right, to create this impression to deceive people thinking that he was in some tropical paradise when he'd been in one of the worst prisons in El Salvador, a notorious place. And if you look at the first photos taken, you'll see that, well, number one, I didn't let them set us by the pool. But you'll see that they, you'll see the original setting of the table just had water glasses and a cup of coffee.

7:25During our conversation, the government folks from Bukele instructed the waiters to set two taller looking glasses on our table, making it look like margaritas. I have no idea what's in them because neither of us touched them, but they had a little cherry on top and they had either salt or sugar on the rim. And I said they totally screwed this up the staging because if you want to play Sherlock Holmes, you can see that there's no gap in the sugar or the salt where someone would have taken a sip. Although they tried, they put less liquid in his. I think this is very instructive because it shows the lengths that Bukele and Trump will go to to deceive the American people about what's happening.

8:13Right. Here's a guy illegally abducted, ends up in the worst prison. And they want to create this impression that, hey, this is he's just in paradise. No problem. They want to literally put a cherry on top of the situation. They literally do. We asked the senator about the things Republicans want to focus on in this case. allegations that Abrego Garcia is a member of the MS-13 gang and the fact that his wife once took out a protective order against him claiming that he punched her and ripped off her shirt. You know, my point on all of this, Sean, is that they should bring those facts before the court and Trump should not just be spending all his time on social media.

8:54Put up or shut up in federal court. And I want to read to you, and I keep it with me because I want to quote the federal judge in this case exactly. She said that the Trump administration had presented, quote, no evidence, no evidence linking Abrego Garcia to MS-13 or to any terrorist activity, period. So put up or shut up in court. Again, I'm not vouching for the man. I'm standing up for his rights because all of our rights are at risk if we don't. There's a lot of focus on this one individual, even though hundreds of undocumented migrants have been shipped off to El Salvador. California's governor, Gavin Newsom, called Garcia's case the, quote, distraction of the day.

9:44What's your response to that assessment? My response is there's never a wrong time to stand up for the Constitution of the United States and due process. And I think Americans, of all political persuasions really don't like people who, you know, put their finger to the wind and try and decide what to do. I will say that when you're talking about fighting for fundamental rights, at the end of the day, I know the American people are with us. You're not only saying we have to focus on constitutional rights, you're saying this situation with Abrego Garcia is a constitutional crisis. You say constitutional crisis.

10:25Gavin Newsom says distraction. How do we reconcile those two assessments of this very serious situation? Well, this is a fundamental constitutional issue, and it is a crisis because the Supreme Court has ruled nine to nothing that the Trump administration has to help facilitate his return to the United States. You know that you don't get many nine-nothing decisions out of the Supreme Court. I also do just want to briefly quote what the Fourth Circuit said. This is a three-judge panel, and the chief judge who wrote it is a guy called Judge Wilkinson. He was appointed by Reagan. Here's what he says.

11:06It is difficult in some cases to get to the heart of the matter, but in this case, it's not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. So this is not a distraction. This goes to the heart of protecting people's rights and what bullies do and what authoritarian leaders do and what Donald Trump is doing is beginning by picking on the most vulnerable and refusing to bring his case in the courts and when the courts rule, ignoring them. So this is a very important moment to protect everyone's constitutional rights.

11:50It's not about one person. It's about all of us.

12:06Senator Chris Van Hollen, Maryland. We're going to run the scenarios of how this might end when we return on Today Explained.

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15:10Hör genau hin. That's the sound of the BF Goodrich All Terrain TAKO3-Reifen. 150 years of experience on every terrain. The legend lives on the road. Ready for the next challenge? That's the adventure waiting for. We'll see you on bfgoodrich.com. You're listening to Today Explained. My name is Eli Honig. I'm a former federal and state prosecutor. I'm CNN's senior legal analyst, and I write for Cafe, New York Media, and other Voxy outlets. All right. So we've just heard from Maryland Senator Chris Van Hollen, who went down to El Salvador to visit Kilmar Abrego Garcia. As of Wednesday morning, where does his legal situation stand?

16:02What is the status quo? Well, still in limbo. So this case has already made its way up and down the chain of the courts. It's gone from the district court all the way up to the Supreme Court. And now it's back down in the federal district court, which is what we call the trial courts. So the key word here, the key point of dispute is the F word, facilitation. Now, what happened was the district court judge originally said to the U.S. government, look, it's acknowledged by the administration that Abrego Garcia was sent to El Salvador in error. The Trump administration acknowledged that was a clerical error.

16:37He had an order in place that said he cannot be deported to El Salvador. Where do they deport him? The one place he can't be deported, El Salvador. Now, the district court judge said to the executive branch, you have to facilitate and effectuate his return. That goes up to the Supreme Court. And the Supreme Court says, yes, unfacilitate, no, uneffectuate. Now, you're probably wondering, why are they drawing these lines? What do these words mean? Yeah. The reason is the Supreme Court has drawn a line where they've said it's not our role as the judiciary to order the executive branch what to do when it comes to foreign affairs and foreign policy.

17:15Therefore, we're going to beseech you to facilitate, meaning help out, but we're not going to quite order you to effectuate, meaning make it happen, get him back here. And now we're back down in the district court where there's just this never ending fight about what is facilitate mean. The courts have made very clear they mean help out in a meaningful way. You have to take some affirmative act. But the administration is interpreting that term facilitate to mean just like don't get in the way. Make sure there's no obstacle. So, you know, Sean, facilitation, I guess, is in the eye of the beholder.

17:49That being said, you've written for New York Magazine about three scenarios that could be how this plays out. Yeah. Could you tell us about the three? Let me take one of them off right off the table. And I'm interested what Senator Van Hollen has told you. There is not a realistic scenario where Kilmar Abrego Garcia comes back to the United States, returns to his family in Maryland and resumes his former life. I just don't think that's possible politically, A, because the administration so dug in and B, probably legally, because the fact is he's not at this moment a green card holder, a legal permanent resident.

18:29He does not have a visa. He's not a citizen. So it's pretty easy to deport someone who doesn't have legal status here. Taking that off the table, the first situation is where we are right now, what I call passive aggressive resistance, where there continues to be this fight over what the definition of facilitate is. And it goes back up and down the chain. And ultimately, the administration goes, you may not like it, but you said facilitate. What we're doing counts as facilitation. And we weren't able to get him back. Sorry. The courts have made clear they don't like that. But if they accept that, then we're going to end up in this sort of purgatory and Kilmar Abrego Garcia is going to remain in El Salvador.

19:11Scenario two is if the courts get a little tougher and a little more serious and a little more specific. What if one of the courts, district court on up, it could go back up to the Supreme Court, says, OK, listen, you're playing games here with Facilitate. We need to be more specific. You are to request his return. You are to cut off funding for the prison that we're renting. You are to bring him back. Then either the administration complies, which will bring us to scenario three, or the administration defies. And if the administration defies a direct order, you know, look, I'm the last person to use constitutional crisis.

19:47I think it's a vastly overused term. But I think we're there at that point because my definition of constitutional crisis is when we don't have a playbook for what comes next. OK. And that brings us to our third scenario. If he comes back here, if the administration decides we're going to avoid that kind of showdown, we're going to bring it back. They're going to immediately look to begin and perhaps quickly conclude the process of deporting him anywhere other than El Salvador. They can either go to an immigration judge and say, look, you need to lift this order that prevents us from sending him to El Salvador because the circumstances have changed.

20:22Or if they can find some third country where to send him that will accept them, they can send him there. Look, you don't have to deport a person to the country where they're a resident or a citizen or where they came from. You just have to send them to a country that will take them. For example, the alleged Venezuelan gang members were not sent to Venezuela. They were also sent to El Salvador. So that's the third scenario where basically he comes back, goes back into the system. But I think that's fairly likely to result in an immediate re-deportation. The three scenarios you gave us all involve development.

20:54development, something's going to happen that leads to something else happening. Is there any way in this current situation we're in, where nothing happens and he just stays there and the courts forget about it? Or does something have to happen? Well, the courts won't forget about it, but it could well be that the courts don't ultimately reach what they consider a satisfactory resolution. I mean, that's the battle that's happening right now in the district court. Judge Paula Zinnis, she has been using every power available to her as a U.S. District Court judge, issuing orders that she is going to get to the bottom of this.

21:27She wants what we call discovery. She's going to want sworn statements, maybe live testimony about how did this mistake happen and what are you doing, government, to facilitate. Ultimately, if she's displeased, she can issue a contempt order, which is largely symbolic. There could be fines attached. I mean, theoretically, there could be prosecution imprisonment, but that would have to be done by the executive branch, by DOJ. So that's not realistic. But look, a contempt finding is meaningful. It's rare to get one out of a district court, especially directed at the Justice Department at the executive branch.

21:59But yeah, I mean, look, we're not necessarily going to get a clean, satisfying resolution. This could end up just sort of with, well, that's how we interpret, facilitate. It didn't get the job done. And if either the administration doesn't change its position to take a more active role to get him back, or the courts don't up the ante here and say, we need you to do more, then yeah, we are going to end up in this sort of in-between world. You're not quite at constitutional crisis yet. The senator we spoke with early in the show is there. What's kind of complex and frustrating about a constitutional crisis is that it's open to interpretation.

22:36Even so, what kind of precedent does this standoff set? Yeah, look, I think we have to be careful. Everyone can interpret constitutional crisis differently, but I'm very wary of the, you know, boy who cried wolf scenario. I think if everything's a constitutional crisis, nothing is. And believe me, in my seven years in media, I've seen people call, you know, the decision not to indict Dan Scavino for contempt of Congress, if you remember that one, that's a constitutional crisis. You know, people tend to call anything they don't like a constitutional crisis. The way I define it is, Again, when we don't have a map for what comes next.

23:11And it's only been, you know, fewer than 100 days still at this point. But of course, we've seen the executive branch test the judiciary time and again. What have we learned so far, Ellie, from those tests? One of the things that we've learned is that the executive branch can probably get away with a lot if it doesn't give a damn about norms and conventions and good faith. I think we're seeing that come to bear a bit. And the other thing that strikes me about the way the Trump administration has gone about its immigration agenda. And look, of course, it was probably the number one issue Donald Trump ran on.

23:50Yes, he was elected, but they're choosing to do it the hardest possible ways. They are setting this bizarre degree of difficulty for themselves in the ways they're choosing to go about this. For example, in the other case involving the Venezuelan gangsters, allegedly, they're using the Alien Enemies Act, the 1798 law that applies to foreign incursions. Like, you don't need to pull out these exotic, bizarre, rare laws. If you want to deport people who are here illegally, it's really pretty easy. You can go through the immigration courts. You can make arrests. You can deport people. They get their due process.

24:25But for some reason, they're choosing these extraordinarily difficult methodologies to do this. Also in the student cases where we see students, Tufts and Columbia, who are being detained and then potentially arrested, they're using this, again, sort of rare law that allows the secretary of state to declare someone a security risk. Again, if they're not here legally or even if they have non-citizen green card status, that's not all that hard to revoke. You don't need to use these bizarre, rarely seen statutes that are designed for extreme wartime emergency type scenarios. And then the last thing, there's an element of incompetence to this all.

25:01I mean, sending Kilmar Abrego Garcia to the one country on the map where he's not allowed to be sent is incompetence. And seeing the fact that they've been unable to, or maybe unwilling to answer a lot of the basic questions that judges have answered, who knew what, when, when were the planes sent, when were they turned around, also speaks to either incompetence or sort of willful blindness by the administration.