President Trump, in an overnight post on his Truth Social online site, appears to be ready to defy the Supreme Court on a highly significant constitutional controversy, but maybe in a way that the Court will allow.
Trump’s Administration is under an order from the Supreme Court, issued last Thursday, to “facilitate” the release of a Maryland man from a brutal prison in El Salvador, the man’s home country from which he fled years ago to avoid gang violence. Kilmar Armando Abrego Garcia, 29 years old, and his family have been living in Beltsville, a Maryland suburb of Washington, D.C.
A federal judge in Greenbelt has ruled that immigration officials illegally arrested and deported him to El Salvador last month, with no chance to contest that treatment. Those officials regard him as a member of a violent gang, MS-13, but he denies that and has never been convicted of any crime.
On Thursday, after the Supreme Court unanimously upheld the judge’s order to take steps for his release from the El Salvador prison, President Trump said that “If the Supreme Court said ‘Bring somebody back,’ I would do that….I respect the Supreme Court.”
However, in his online post last night, the President referred to what he called “the barbarians” who have been sent to El Salvador and added that they “are now in the sole custody of El Salvador, a proud and sovereign nation, and their future is up to President B [Bukele] and his Government.”
If the President meant by that message that the central American nation’s sovereignty is something that the U.S. government is obliged to respect, under international law and the norms of diplomacy, he may have been suggesting that the matter of Abrego Garcia’s fate is beyond his control and beyond the control of lower-ranking U.S. government officials.
Would that mean that he need not obey the Supreme Court order of last Thursday? The Justices did not order Abrego Garcia’s actual return to the U.S., but his release from custody at the El Salvador prison. But, if that option is closed, because of El Salvador’s “sovereign” control of its prisoners, would the President actually not be in defiance?
Moreover, the Supreme Court, in ordering the Maryland federal judge to consider narrowing her ruling, told her to show “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” (The Administration’s lawyers have been relying heavily upon claims for such deference in resisting the judge’s rulings.)
Abrego Garcia’s lawyers are arguing that, under the judge’s orders, the Trump Administration was required not only to arrange for his release from prison but also his actual return to the U.S. In fact, on Saturday, his lawyers returned to the Greenbelt court of District Judge Paula Xinis, repeating their claim that Arbego Gardia must be released and then brought home; they asked the judge to consider holding government officials in contempt of court for failure to do both.
Their formal motion contended that the President, by his remarks on Thursday about complying with a Supreme Court order, showed that he does have the authority “to bring Abrego Garcia back” even though other government agencies “continue to resist this court and the Supreme Court.”
His lawyers asked Judge Xinis to require the government to take by the end of the day tomorrow these steps:
• Issue a new order to U.S. officials to obtain Abrego Garcoa’s release and return.
• Send someone from the U.S. to accompany him and ensure his safety.
• Arrange for a U.S. aircraft to bring him back.
• Assure his legal re-entry into the U.S.
Next, his lawyers asked the judge to set a schedule for the government to answer in writing questions about what actions they have taken or may take to comply with the judge’s release and return orders and to provide documents on their arrangements with the El Salvador government for holding Abrego Garcia and others deported illegally from the U.S. If such documents don’t exist, government witnesses should be summoned to a hearing on Tuesday to testify about those arrangements.
Further, his legal team asked the judge to call government witnesses to the stand Tuesday to provide updates on Arbego Garcia’s current location.
Lastly, his legal team requested that the judge order the government to make arguments to the judge – by 10 a.m. Monday — on why officials “should not be held in contempt for failing to comply with this court’s orders.” The judge, the filing said, clearly has authority to hold in contempt those in defiance of her orders.
President Trump, personally or in his official status, cannot be ordered by a court – including the Supreme Court – to be in contempt or to be punished for contempt. Under a series of rulings dating as far back as 1867, the Supreme Court has ruled that the constitutional concept of separation of the powers of the national government means that the President cannot be held in civil contempt for any official actions. In a ruling last July, the Court extended that immunity to criminal charges for his official actions. Contempt of court can be either civil or criminal in nature.
None of Judge Xinis’s rulings in Arbego Garcia’s case have been directed at the President personally or officially. However, his immunity does not extend to government officials generally. His lawyers, in fact, have obtained orders from the judge to these federal officials: Homeland Security Secretary Kristi Noem, Attorney General Pamela Bondi, Secretary of State Marco Rubio and two acting chiefs of federal immigration agencies under Secretary Noem.
All of these officials have been sued in their official capacity only, and thus would not be punished personally by fines or jail terms if they were held in criminal contempt. Since they probably would be held in civil not criminal contempt, the remedy is not punishment but a direct order to obey existing court orders. What might happen if there is further defiance is not entirely clear, but at some point might lead to criminal contempt.
NOTE: The President’s overnight post on Truth Social indicated that the president of El Salvador is scheduled to visit the White House tomorrow:
