Clip: What's next in Trump's battle with the courts

Jeffrey Goldberg:  Let me -- well, speaking of authoritarianism, good transition, a good all-purpose transition, let me talk about another Republican, this time a judge, J. Harvie Wilkinson of the Fourth Circuit Court of Appeals, obviously not an active Republican now, but appointed by Ronald Reagan, a well-known conservative jurist. This is part of what he wrote in his order and his decision upholding the lower court decision on the Abrego Garcia issue. 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. Further, it claims in essence that because it had rid itself of custody that there is nothing that can be done. This should be shocking not only to judges but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Peter, that the judges are pushing back. I mean, maybe other people aren't. But contrast this -- contrast what's going on in the judiciary with what's going on in the Republican side of the Senate.

Peter Baker: Yes. In fact, what's really fascinating about the Abrego Garcia case is that every judge who has heard this from the district court all the way to the Supreme Court, liberal and conservative, has had the exact same response. I mean, there's some semantic differences in some of their rulings, but basically they're saying, you, the government admit you screwed up and violated the law by sending this man to El Salvador, even though there was an order saying you shouldn't do it, therefore, you have responsibility to do something about it.

And then Trump is basically saying is, no, I really don't. You know, I got nothing to do with this. Even though I have the president of El Salvador sitting next to me in the Oval Office, I have no idea how I could possibly convince the guy --

Laura Barron-Lopez: And instead, now they're launching essentially a character assassination against Abrego Garcia himself.

Now, look, do we know if he has ties to MS-13 or not? They haven't presented new evidence. They're basing it on police reports from 2019 that did not charge him with any crime and a subsequent 2022 interaction with police where he was also, again, not charged with any crime. But Judge Wilkinson says this also in that opinion. He says is he a member of MS-13? Perhaps, perhaps not. But if the government is so confident in their case, then they need to bring it to the court of law and bring him back.

Eugene Daniels: And bring him back and so that he can go through the due process. That's the whole point of due process is you go through all of the points that you need to, the government and then the defense come together. They go back and forth, and then we figure out what actually happened and whether or not someone is a member of this gang or that gang or whatever.

Mark Leibovich:  Well, but also the essence of this, and I'm pretty -- I'd be shocked if this wasn't part of Donald Trump and the White House's calculation. is that the judiciary ultimately doesn't have an army at their disposal. They don't have any way to enforce, you know, their positions. I mean, they can, you know, launch contempt proceedings and so forth. But, ultimately, you know, they see this as sort of an argument that will play out in a political spectacle that could benefit.

Jeffrey Goldberg:  Let me go to this larger point, and let's start by -- I want to show you something that Judge Wilkinson said 12 years ago speaking at Duke University. I want to show you that very interesting moment. And then I want to go to Donald Trump talking about judges. Let's play Wilkinson first.

Judge J. Harvie Wilkinson III, Fourth Circuit Court of Appeals: When the tyrants of the 20th century, these monsters, like Hitler and Stalin and Mao, wanted to take over a society, chief among their targets is the rule of law. They don't want independent courts. And, you know, this is a sacred trust that we have here and there ought to be a reverence for the law as the law.

Jeffrey Goldberg:  And now let's watch Donald Trump this week talking about judges as annoyances or impediments.

Donald Trump, U.S. President: I was elected to get rid of those criminals, to get them out of our country or to put them away, but to get them out of our country. And I don't see how judges can take that authority away from a president.

Jeffrey Goldberg:  So, the million dollar question is, have we reached an emergency that you are alluding to?

Mark Leibovich: Well, you know, is this a constitutional crisis? I mean, to use the word -- I mean, it seems like it, I mean, along with other things that could be getting into the neighborhood.

Jeffrey Goldberg:  But isn't it only a constitutional crisis if the White House says, yes, we've read your ruling and we're not following it?

Mark Leibovich: Sure.

Peter Baker: It's pretty close to that now. Now --

Jeffrey Goldberg:  How close?

Peter Baker: They are making the argument, and this is a distinction, that they are in keeping with the Supreme Court's ruling as they interpret it. Now, it's a pretty strained interpretation because the Supreme Court says, you shall facilitate the return of him. Well, we're facilitating. If he happens to show up on our border, we'll let him in. It's a spurious argument, most lawyers would say, but they're not saying that they're disobeying the whole court. They may come to that point next though, well, four years again.

Mark Leibovich: Well, I sort of wonder if at some point Justice Roberts or the court, you know, en masse makes some kind of very succinct statement about their position here, not open to interpretation and just sort of take it from there.

Jeffrey Goldberg:  You mean bring him back and put him through the process?

Laura Barron-Lopez: I mean, the Supreme Court made pretty clear that the action that the administration took was against the law to deport all of these people without due process. It's against even the Alien Enemies Act, which is what they use to deport them. And so, you know, there are many constitutional scholars who already say that we're in a separation of powers crisis, a rule of law crisis. I mean, Judge Wilkinson himself in that opinion said that maybe he's naive. He used the word naive to believe or have hope that the president will -- and that the executive branch will respect the rule of law and understand that it is vital to America. So, he's already saying that he believes that the country, if it isn't, is on the precipice of a crisis.

Jeffrey Goldberg:  Is there a chance that Justice Roberts and the Supreme Court are not writing it so clearly because they don't want to know what might happen? There's a little Murkowski quality maybe here. Maybe they don't want to find out.

Eugene Daniels: Well, because the way that Donald Trump and his team works is they want -- if you need them to do something, you have to say it, right? You can't kind of wink a nod at it. You can't do the gray area like you've done in the past with other presidents who say they respect the rule of law and are going to do what the Supreme Court says or do what a district court says. This is a group of people who, if you don't make it black and white, they're not going to do it. And that's what's happening when you're talking about their interpretation of it.

They also believe in the unitary executive theory that they have more power than other presidents have both exercised and believe that they've had in the past.

Peter Baker: And I think for the, to your point, and what Mark's point is, these judges are wary of the conflict. They're really. Being careful trying not to provoke a situation where they are basically ignored. Because what is the credibility of the courts, well then it happens .You saw Judge Boasberg, for instance, says, I'm going to have a hearing on whether you've committed contempt in this other case, for instance.

It's pretty clear they did. It seems like you could make -- most judge would've said you are in contempt, period. He's trying to say, I'm giving you a chance, nut tell me how you're not, and we get out of this.

Eugene Daniels: It's like talking to a kid or a puppy.

Peter Baker: Like he's trying to say, don't push me, don't push me. But at some point they have to make a decision.

Jeffrey Goldberg:  I have to ask the question then, what happens the day after they actively ignore a clearly written order?

Eugene Daniels: We're in a constitutional crisis and then nothing happened?

Jeffrey Goldberg:  Yes. What happened?

Eugene Daniels: There's no army. The --

Laura Barron-Lopez: Well, they would be found in contempt, potentially criminal contempt. But to your point earlier, they don't come --

(Crosstalk)

Mark Leibovich: Right, no. But then I guess there would be some Supreme Court version of the Boasberg statement, you know, sort of go up the ladder. I mean, I guess they can probably threaten contempt and maybe future disbarment or lawyers who work on this case and the government. I don't know. I'm just sort of throwing that.

Laura Barron-Lopez: You can also level financial penalties against specific government officials if the judges are able to figure out which government officials violated their order. And you see that Boasberg is kind of heading down that path right now.

But, again, yes, Justice Department in many of these situations would be in charge of enforcing any of the judge's orders.

Jeffrey Goldberg:  Right. I I'm trying to deduce what the Supreme Court is doing and might do, but let me -- you all cover the White House. Does this White House want an open confrontation with the Supreme Court where that question is put on the table in front of a million people?

Mark Leibovich: I don't think the Supreme Court would engage in such a thing, or at least in a way that would be -- I don't know -- that would be obvious or that would actually put them in Congress. I mean, I disagree a little bit --

Jeffrey Goldberg:  Does Donald Trump want a confrontation with the Supreme Court?

Mark Leibovich: He probably doesn't, I would guess, partly because he sees them maybe as an ally.

Jeffrey Goldberg:  What are they telling you inside?

Laura Barron-Lopez: I think they do want a confrontation or they want certain things to be brought fully to the Supreme Court, whether it's birthright citizenship, which we're seeing the Supreme Court deciding that they're going to take up, or, you know, they want to reverse the Impoundment Act, which makes it so the president can claw back a bunch of money when he decides I don't want to spend federal funds. I think they want those confrontations because they're hopeful, maybe not that they'll clash with the Supreme Court, but that the Supreme Court will rule in their favor.

Peter Baker: I think they want to confront, particularly on this immigration case, for instance, because they think it's a political winner, right? They could have made this go away. They could have brought the guy back from El Salvador and still deported him under a different process that would've been seen as legal by the courts, presumably. But they didn't do that. Why did they not do that? Because they like the idea of saying, you guys are defending rule of law. You're defending bad guys who are members of gangs and thugs and all that kind of stuff,

Jeffrey Goldberg:  Right. Two more issues I want to get to. On the first, Eugene, sorry, but you're the head of the press in America. You're the president of the White House Correspondents' Association. We're not going to talk about the White House correspondents' dinner, but you are one of the people leading the charge to make sure that the press has autonomy and freedom to cover the White House. What's the state of play?

Eugene Daniels: I think the state of play is not great, if I'm going to be honest. I'm going to be like Lisa Murkowski be honest here. Part of the reason is because you have in the White House folks who believe that the people who are doing the governing should also pick who are, who's covering them, right?

In the past, even during his first term, Donald Trump believed that, or at least allowed that the people doing the covering picked who did cover, who covered them. And I think the reason is because you don't want government officials to be able to have viewpoint discrimination, like we've seen with the Associated Press, than choosing people who are going to bring into the Oval Office, who are going to ask easy questions, who aren't going to push them back on that.

Jeffrey Goldberg:  And the press and the White House going back to the 60s to the television era, the beginning of the television era, just accepted that these are the norms.

Eugene Daniels: Yes. And there's always been tension, right? Like, you know, I tussled with the Biden folks on many a phone calls, right? That part of it is normal, right, even with the WHCA and the White House. The difference is that the kind of him handedness of we are going to control this because and, frankly, lying and saying, you know, the WHCA has been closed off and hasn't brought in people. We have brought in a place that both of us used to work at, Politico, a digital outlet, the Daily Caller, right? Christian Broadcast News, all these different types of organizations, or members of the association, good members of the association, and who have gotten chances to, and have continued to be in the pools and all of that.

So, we're in a position right now where we are ready at any time to continue to take over the pool and do all of that because it's not about us. It's to make sure that the American people have people in the Oval Office who are asking questions, who are asking easy questions, who are pushing the president to defend the things that he wants to do in this country.

Jeffrey Goldberg:  Right. And we will come back to this because this is going to be going on and on and on, I'm afraid. Peter, one last question for you, I want to stay on the subject of the Chris Krebs ran digital -- ran for Homeland Security in the Biden period, an organization that looked at disinformation campaigns, now is being targeted by the Trump administration and part of the E.O. directed against him, the executive order directed against him, blamed him, said that one of the reasons he is unqualified to even hold a security clearance is that he argues that Donald Trump lost the 2020 election. He's had to now leave his job in the private sector because of this kind of pressure campaign.

Peter Baker: Yes.

Jeffrey Goldberg:  What does it mean for the health of our democracy if this is going on?

Peter Baker: It says a lot. Chris Krebs, of course, worked actually under the Trump administration, was fired by Trump when he said at the end of the 2020 election, there was no evidence that the election was, in any way, unfair or rigged. And you're right, this executive order, which directly targets him by name, I've never seen any president ever fought until this one, sign executive orders targeting people he did not like by name, saying that Justice Department should investigate this person.

And you're right to say this Justice Department should investigate Chris Krebs because he refuses to accept that the 2020 election was rigged, on other words, my version of reality, what the president's saying, he should be investigated. In effect, he's saying it's a crime to say the 2020 election wasn't rigged.

Jeffrey Goldberg:  So, that's straight Orwell territory.

Peter Baker: It's pretty up there.

Jeffrey Goldberg:  That we're in.

Laura Barron-Lopez: It's a time to tell the truth is what he's saying.

Jeffrey Goldberg:  Well, we are going to have to leave it there. Thanks to our guests for joining me and thank you at home for watching us.