These are not core executive functions entitling Trump to immunity

Trump may be exposed to criminal liability sooner than he thought, especially since, as a convicted felon, he has a stronger claim to an El Salvador prison cell than most of the men he's sending there

Before this week, I didn’t think I could feel any deeper shame than I felt in February, watching Trump and Vance in the Oval Office attacking a real hero of democracy, Ukraine’s President Zelensky. Then, on Monday, Trump sat in the same chairs with President Bukele, brutal dictator of a notorious banana republic, and invited him to openly mock the United States Supreme Court.

Trump and Bukele tag-teamed their choreographed refusal to return Abrego Garcia to the US, which amounted to telling the Supreme Court ‘No,’ they will ‘Not’ obey its unanimous order to remove Garcia from the El Salvador hell hole where Trump is paying Bukele to keep him.

Watching them act in concert, shame took a back seat and something uglier emerged. The words ‘appalling,’ ‘dangerous’ and ‘outrageous’ fall short.

Kidnapping in plain sight

What Trump and Bukele did to Garcia and hundreds of others thrown into a foreign gulag without due process, under Trump’s order, was not deportation. It was state-sanctioned kidnapping.

Deportation, or removal, is a legitimate power of the federal government. It is a legal term, one that is accompanied by legal process. A legal deportation incorporates assumptions of legality not present here: notice to the accused, legitimate evidence, and an opportunity to be heard. None of the men sent to El Salvador’s CECOT were granted any of this process.

And the arrests themselves are thuggish and unprofessional. Watch the video of the arrest of Rumeysa Ozturk. Ozturk, a grad student at Tufts, was walking down a city sidewalk when she was suddenly approached by masked agents in plain clothes. They surrounded her, grabbed her phone, and put her in an unmarked van. Terrified, she screamed, and probably thought she was being mugged. Her offense? Writing an op-ed for the school newspaper criticizing the war in Gaza.

Trump’s open defiance

The Trump administration is now acting in direct defiance of federal court orders. Leading up to the recent Supreme Court decision on Garcia, Trump’s DOJ defied the direct orders of federal judge James Boasberg, who ordered the Trump administration to turn back two planes full of Venezuelans headed to El Salvador.

On Wednesday, Boasberg found probable cause that Trump’s agents acted in criminal contempt of court. Boasberg wrote that the administration had engaged in “willful disobedience of judicial orders,” and that, “The Constitution does not tolerate willful disobedience of judicial orders -- especially by officials of a coordinate branch who have sworn an oath to uphold it.”

Team Trump similarly defied federal Judge Paula Xinis’ orders in the Garcia case, rulings upheld by the Supreme Court directing Trump to facilitate the man’s return to the US. Notwithstanding these court orders, Trump and his masked henchmen are still arresting people off the streets, shoving them into a van, and flying them to a foreign dungeon without due process.

Kidnapping, criminal contempt are not “core executive functions”

In the much-maligned criminal immunity decision giving Trump the license he is now abusing, Chief Justice Roberts emphasized that Trump “is not above the law.” Roberts explained in his 43-page ruling that presidents have absolute immunity only for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.

There is nothing in the Constitution that allows a president to deport people to foreign gulags without due process or contact with the outside world; the 8^th Amendment’s prohibition against cruel and unusual punishment says just the opposite. Moreover, an order of criminal contempt is a crime and can carry a fine or prison sentence. As such, Trump’s continuing actions fall outside the rule of law, and outside the ‘core powers’ granted to him under the Constitution.

Roberts, while taking a broad view of what constitutes a president’s “official responsibilities,” emphasized that a president’s immunity does not apply to actions that “are manifestly or palpably beyond his authority.” When courts conduct the official/ unofficial inquiry, Roberts added, they cannot designate an act as unofficial “simply because it allegedly violates the law.”

Here, there is no room for “allegedly,” given the Supreme Court’s clear ruling on Garcia. (Trump’s attempts to overturn the 2020 election, parts of which were likely unofficial, never made it to a judicial determination on the merits because the case was dropped when he was re-elected.)

Trump is not immune from criminal liability

Even though presidents are not traditionally prosecuted while in office- hence Trump’s strong interest in staying in office past his second term- Trump may well be impeached, or removed due to growing suspicions of insanity, under the 25^th Amendment. The possibility that Trump may be exposed to criminal liability sooner than he thought should give him pause, especially since, as a convicted felon, he has a stronger claim to an El Salvador prison cell than most of the men he’s putting there.

His unprecedented and unhinged vengeance attacks against Americans may also support setting aside the tradition against prosecuting sitting presidents. Deferring the prosecution of a sitting president is a DOJ policy, not a law.

As I see it, kidnapping (or even deporting) people in defiance of direct court orders places Trump’s conduct outside the Supreme Court’s immunity ruling. There is no case where defying federal court orders has been deemed a “core power” of the presidency, nor could there be. Such a finding would upend the balance of powers woven throughout Articles I, II and III. As Judge Boasberg just observed, allowing Trump to freely “annul the judgments of the courts of the United States” would make solemn “mockery of the constitution itself.”

‘Mockery’ is what we saw from Trump and his dictator straw man on Monday. It may take months or even a year or two, but the anger on display from a bunch of farmers in deep red Iowa- who obviously do care about due process and obeying court orders- strongly suggests Trump will not get away with it.

Sabrina Haake is a 25+ year federal trial attorney specializing in 1^st and 14^th A defense. Her columns are published in Alternet, Chicago Tribune, MSN, Out South Florida, Raw Story, Salon, Smart News and Windy City Times. Her Substack, The Haake Take, is free.