Hey everyone, I'm David Chalian, CNN's Washington Bureau Chief and Political Director, and welcome to the CNN Political Briefing.

President Bukele said he was not sending him back. That's the end of the story. If he wanted to send him back, we would give him a plane ride back. But he's from El Salvador, he's in El Salvador and that's where the president plans on keeping him.

'That's Attorney General Pam Bondi answering questions about Kilmer Armando Abrego Garcia, a Maryland man who was mistakenly deported to El Salvador. The White House was ordered by a federal judge and then by the Supreme Court to, quote, "facilitate" his return to the United States. The Trump administration claims it's complied, but the White House and El Salvador's president made it clear this week there aren't plans to bring Abrego Garcia back. Also this week, a federal judge ruled that there's probable cause to hold Trump officials in criminal contempt for violating his orders last month to stop using the Alien Enemies Act to deport alleged Venezuelan gang members. Trump's DOJ has appealed that ruling. These cases have ratcheted up the tension in the ongoing clash between Trump and the courts. So, are these cases also pushing the country closer to a constitutional crisis? Leah Litman is a law professor at the University of Michigan. She teaches and writes about constitutional law and federal courts. She also co-hosts the podcast Strict Scrutiny, and she's just written a book called "Lawless," all about the Supreme Court. We spoke on Wednesday afternoon. Leah, thanks so much for joining me.

Thanks for having me.

So you and I are speaking on Wednesday afternoon. There was some breaking news in this immigration litigation space that I want to get to right away with you. US District Judge James Boasberg has ruled that there is probable cause to hold Trump officials in criminal contempt for violating his orders last month. Those orders are when he told the administration to stop using the Alien Enemies Act to deport alleged Venezuelan gang members. So, for our listeners, can you explain what does that mean if Boasberg is saying to the administration there's probable cause to hold the administration in contempt? What happens next? What does that look like?

So the next stage of the proceedings is the judge asked the government to basically submit some information to identify the individuals who gave the order specifically not to turn the planes around that were in the air at the time Judge Boasberg halted the administration's use of the Alien Enemies Act. And the judge said, look, if you don't want me to move further in this contempt proceeding, you can cure your contempt. That would mean bringing back the people in El Salvador that I ordered you not to send there.

What has the argument been in this case that the administration is making and, in light of this new moment for the administration that there is probable cause of contempt, what would it look like if they doubled down on that argument? So what would they, what is the case they would make to Boasberg?

'Yeah. So their arguments in this case thus far have been twofold. One is they claim that the judge merely told them orally to turn the planes back around but didn't include that language in the written order. And so they say, therefore, the written orders superseded the oral order, and we didn't have to do what you told us to do orally. This is highly implausible, not at all how judicial orders work. The written order does not always encapsulate everything the judge ordered you to do. You still have to do those things. The second argument that the administration has given is that the district court lacked jurisdiction over international waters and could not apply its decisions extra-territorially. And because at the time the judge order the planes to turn around, the planes were in international waters, they say the judge's order, you know, could not lawfully apply to the government. That, too, right, just not how this area of law works. The way that courts' authority goes is, in these cases, which are challenging detentions, the jurisdiction extends to the defendants. And if the defendents are detaining the individuals, and. at that moment, they were. You know, they are in federal planes that were flying at the order of the United States federal government. So all of the federal government defendants, right, they are still subject to the court's order at that point. So that argument also didn't go anywhere. And I think in part because their arguments were so ridiculous, that was part of why the judge concluded, no, no. no, no. You willfully disregarded my order.

What we were first talking about there were the, as you were saying, the flights full of people being deported to El Salvador. But, obviously, this very specific case of this Maryland man who was under an order not to be deported to El Salvador, and, as the administration itself acknowledged in court, was, through administrative error, deported to El Salvador. I do want to sort of understand because you had the El Salvadoran president sitting in the Oval Office saying, I am not returning this person to the United States. And you have the Trump administration saying, we are not asking for this person to be returned, though some court orders, I believe, including from the Supreme Court, suggest that is precisely what they should be doing, or maybe precisely is the wrong word to use there, given the language in the court's order, but we'll get to that. But where are we now if both governments are saying, hey, we have no role in this, and we're not doing anything?

They are playing in the Supreme Court's face. That's where we are. You know, the specter of having both El Salvador and the United States in the same room announcing that neither of them could do anything to remedy this detention of someone who is being held in El Salvador, purportedly at the behest of the United States and being funded by the United states is just ludicrous. And so we are in this situation where the administration, be it the president, be the Secretary of State, be it whatever position Stephen Miller holds, they are willfully mischaracterizing what the Supreme Court said in the Abrego Garcia case.

The administration's argument is, and I think this is correct, but tell me if I'm wrong, they said even if he were to come back, he would be immediately deported again, just not to El Salvador, that the only thing that the court had ordered about his status was that he could not be deported to his home country of El Salvador. So is that not correct, that they would be able to deport him elsewhere?

The way that deportation works is you actually have to get an order of an immigration judge that directs that you can be deported to a particular place. Right? That has not played out with respect to Mr. Abrego Garcia. All we have in his case is an immigration judge granting Mr. Abrega Garcia relief, withholding from removal when the government tried to remove him to El Salvador.

That's withholding removal to El Salvador, right?

Yes, yes. But the problem is, is like, let's say the government says we want to deport him to Venezuela, right? Then Mr. Abrego Garcia could make an argument that if he was deported there, he would face a substantial risk of torture or violence, in which case he would also be entitled to withholding of removal to Venezuela. And so the government is just wrong as to how these legal proceedings work.

We're going to take a quick break. We're gonna have a lot more with Leah Litman in just a moment as we turn our attention to the Supreme Court itself. We'll be right back. Welcome back. We're here with law professor Leah Litman. Here's my question about the Supreme Court. We alluded to it in the first segment. It seems to me, you said the administration is basically sort of playing in the face of the Supreme Court, but it seems to me the Supreme court provided a huge hole for them to drive a truck through here with its language of facilitate and not defining what facilitate means. So, do you want to take a stab at what facilitate means to these nine justices?

So first, I just want to agree with you that when the Supreme Court's order came down, my initial reaction was, the Supreme Court gave the administration wiggle room to try to weasel around actually getting Mr. Abrego Garcia back into the United States, or at least substantially delaying it, in part because, as you say, they injected this distinction between facilitate and effectuate, saying the lower court could order the government to facilitate but not order the government to effectuate Mr. Abrego Garcia's return. As to where the line is, who knows? I mean, thus far, the federal government has taken the absolutely absurd position that to facilitate someone's return means only to remove any domestic obstacles to his entry into the United States, even though the Supreme Court's order said, facilitate his return from El Salvador. There's nothing in the order or decision that indicates it's limited to domestic restraints to entry. That's just outlandish. But as to where the line is, I mean, I don't know exactly what the lower court could order the government to do as part of facilitating rather than effectuating. For example, could the judge order the federal government to send a plane to El Salvador? Could the judge order the government to make a phone call to the president of El Salvador and say, we want you to return this person like you have returned others?

Is the walling off of effectuate, is the argument from the Supreme Court that that is, effectuating is conducting foreign policy, and that belongs in the realm of the executive, not the judiciary?

That seemed to be part of it because they included this line in the opinion that said the district court had to clarify its order with due regard for the deference owed to the executive branch on foreign affairs.

'If there's no guideline, as you're saying, I mean, you just listed a whole bunch of things of like, we don't know if the lower court did X, Y, or Z, if that would be meeting the facilitate standard, does that mean that A, this is inevitably going to end up before the Supreme Court again, but B, do they have to take it up again? Like, why, if they deliberately wanted the vagueness, perhaps a lot of people, I don't your thoughts on this, have suggested so that Roberts could get a 9-0 unified court, why would they take it up again if that means it'll end up having to be a divided court?

Yeah, so, I mean, we don't know, you know. I think it's right that this is going to go back up to the Supreme Court unless the administration actually gets Mr. Abrego Garcia out of the El Salvadoran prison. But given that, I don't know that we know what the Supreme Court will do if and when that issue gets back up to them. You know, it's possible they could buy some additional time by saying, well, one thing the district court ordered, you know, that was implausible, but maybe, right, send it back down, and see if you can get the government to do some additional facilitating that you didn't contemplate. I mean, I don't know. But another possibility is, the Chief Justice wanted to at least avoid a definitive ruling at that moment in the case, in the hopes that that would generate, frankly, some good press for the Supreme Court, given that the last week it had halted Judge Boasberg's order that had blocked the administration using the Alien Enemies Act. That was a divided ruling in which the court made it more difficult to challenge these arbitrary detentions and expulsions. So why not also get this ruling, even if you don't plan to ultimately stick to it down the line, in order to kind of mitigate the bad press.

Interesting theory that I had not heard that one before. We, I will just say, like internally at CNN, you know, we have editorial conversations on a daily basis right that is like, does this get labeled as a constitutional crisis. Are we at the, you know, is this a potential constitutional crisis? It doesn't, which is sort of where we've landed now. Like, I don't know in your mind what defines a constitutional crisis, but it seems to me, at the moment, this is still playing out. And it looks like it's going to have a few more chapters to go here. But, ultimately, if the administration defies a Supreme Court order, should another one come with more clarity, that to me would fit the definition of a constitutional crisis.

It would, but to me, that's just not the red line. That is not the defining feature of a constitutional crisis. In some ways, I think the question is whether we are going to be fundamentally changed as a country in ways that are irreversible, at least in the short term, over the next few weeks, few days, few hours, few years. And I think a lot of what the administration has been doing and the responses to it have already pushed us past a constitutional crisis. You know, the idea of summarily expelling people without due process, the idea of refusing to spend congressionally appropriated funds because you disagree with them and then Congress not doing a thing about it, the idea of threatening and bullying universities with billions of dollars in funding because you disagree with their politics. I mean, all of these things are, I think, pretty clear or similar ways to how other autocratic regimes have behaved, and so the fact that it is happening here and happening so quickly, to me, it kind of suggests we are already in something I would call a constitutional crisis, and the question is really, are we gonna be able to hold the line somewhere and stop the bleeding such that we are not going to be substantially changed as a country at the end of this.

Do you want to take a stab at answering your own question?

I don't know, honestly, right? I think it could go either way.

And what does that look like to you? What would taking a stand to prevent a complete slide into an autocracy look like you?

Yeah, so what that would mean to me is, in 2026 and 2028 and thereafter, the administration has basically not locked in, you know, effective political control, notwithstanding the will of the voters and fair elections. That would mean there are still standing strong civic institutions that can push back against the government, be it media, be it institutions of higher learning, be it lawyers and law firms, and it would mean that we still have intact, you know, a system that at least tries in the main to comply with the rule of law and doesn't devolve into a system of just patronage, you know, handing out benefits to your buddies and those that grovel before you, and punishing those who disagree with you. I look at, for example, different countries like Poland or Hungary. And Poland had, you know, an autocratic authoritarian movement that severely damaged some aspects of the country but then,you know, shifted the tide a little. Hungary, by contrast, it presents itself as, like, sure, we're a democracy, like, we have a constitution, when in reality, those things are just veneers for a government that doesn't function like a liberal constitutional democracy. And so I think, in a lot of ways, those are the two choices we are facing. Like, are we going to emerge with a lot of damage that we will be able to repair over some period of time, or are we going to slide into a system that just does not abide by the rule of law or the substantive vision of constitutional democracy?

So given what you know about the political makeup of Congress and President Trump's strong hold on his own party, does this rest in the hands of the Supreme Court to define which side of the line the country falls on?

No, I don't think it's just up to the Supreme Court. I do think that the Supreme Court could obviously push the needle and make it harder to move from one to the other, but the Supreme court alone is not going to fix it. They never were. They can certainly make it harder for the country to fix if, for example, they allow the administration to threaten all of this funding, they allow them to get away with defying court orders, etc., etc., but they're not gonna save us.

Leah Litman, thanks so much for your time. Really appreciate it. That's it for this week's edition of the CNN Political Briefing. Remember, you can reach out to us with your questions about Trump's new administration. Our contact information is in the show notes. CNN Political briefing is a production of CNN Audio. This episode was produced by Emily Williams. Our senior producer is Dan Bloom. Dan Dzula is our Technical Director, and Steve Lickteig is the Executive Producer of CNN Audio. Support from Alex Manasseri, Robert Mathers, Jon Dianora, Leni Steinhardt, Jamus Andrest, Nichole Pesaru, and Lisa Namerow. We'll be back with a new episode next Friday. Thanks so much for listening.