Elie Honig

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. Mm-hmm.

Now, what happened was the district court judge originally said to the US 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. He 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. Yeah. That goes up to the Supreme Court, and the Supreme Court says, yes, unfacilitate, no, unaffectuate. 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. Therefore, 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 does 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.

Yeah. Could you tell us about the three? Let me take one of them 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 is 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. He 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, look, 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 Kilmer Abrego Garcia is going to... remain in El Salvador. Scenario 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, okay, 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 – look, I'm the last person to use constitutional crisis. I 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.

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 him 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, or if they can find some third country to where to send him that will accept him. 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. And 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.

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.

She 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. But

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 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.

Yeah, look, I think we have to be careful. Everyone can interpret constitutional crisis differently, but I'm very wary of the boy who cried wolf scenario. I think if everything is a constitutional crisis, nothing is. And believe me, in my seven years in media, I've seen people call 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.

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. Yes, 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, this 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. But for some reason, they're choosing these extraordinarily difficult methodologies to do this. Also in the student cases where we see students, Tufts in 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 cases. And then the last thing, there's an element of incompetence to this all.

I 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.

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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.