MARY LOUISE KELLY, HOST:
Every day, it seems new conflicts arise between President Trump and the courts, prompting another round of the question, are we in a constitutional crisis? So today, we're going to put that question to our own Nina Totenberg, who has been covering the Supreme Court for more decades than she likes to admit publicly, Hi, Nina.
NINA TOTENBERG, BYLINE: Hi there.
KELLY: Come on, how many decades?
TOTENBERG: Mm-mm (ph).
KELLY: (Laughter) OK, let's get serious 'cause it's a serious question. Is the country in a constitutional crisis?
TOTENBERG: Well, to answer that question, let me quote a Supreme Court justice who famously said, in talking about pornography, you know it when you see it. The same is true with determining whether we're in the midst of a constitutional crisis. The one time I thought we were in the midst of a constitutional crisis was when the Supreme Court ordered President Nixon to turn over the Watergate tapes, and he toyed with the idea of refusing to comply, until his counsel, James St. Clair, told him that he really could not stiff the Supreme Court of the United States, or it would precipitate a constitutional crisis and he would lose most of his Republican support in Congress, which he ultimately did anyway. But I'm not sure Donald Trump can do anything to lose his Republican support in Congress. Still, in a clash with the Supreme Court, he could lose a lot.
KELLY: Such an interesting reminder of tiptoeing up to the brink of a constitutional crisis there in the 1970s. What about today? Your answer to my question - are we in the middle of a constitutional crisis - is kind of?
TOTENBERG: Think of this as a pot on the stove. A few days ago, I would have said the flame controlling the temperature is on medium. But today, I'd say it's inching up there closer to a full-on clash between the Supreme Court and the president.
KELLY: And why? What's changed in the last few days?
TOTENBERG: Just last week, the Supreme Court told the Trump administration it had to, quote, "facilitate the return" of a Maryland man named Kilmar Abrego Garcia to the U.S., where he was under a protective order barring his deportation. Since then, of course, President Trump has insisted he has no obligation to return Abrego Garcia, who was grabbed by ICE officials and deported to El Salvador and a prison there. And we have had the spectacle of the president of El Salvador meeting with Trump at the White House and the two of them gleefully pronouncing that they had no obligation to do what the Supreme Court had just told Trump to do. And Trump continues to flirt with the idea of deporting American citizens, as well.
Meanwhile, the federal district judge in charge of the case, Paula Xinis, has basically been stiffed by the administration in her efforts to get information about what it's doing to get Abrego Garcia back. So now she, for the first time, has raised the prospect of holding contempt proceedings against the government, and the administration went to the 4th Circuit Court of Appeals asking it to block her action, which the appeals court refused to do.
KELLY: OK, so that brings us up to now. And this - just stay with the 4th Circuit for a minute because this was quite a remarkable opinion that they issued, backing up Judge Xinis' attempt to get information. Tell us about it.
TOTENBERG: Writing for a unanimous three-judge panel, Judge J. Harvie Wilkinson, a very conservative judge appointed by President Reagan, said that the Supreme Court's order to facilitate Abrego Garcia's return does not permit an admittedly mistaken deportation to continue without affording Abrego Garcia the due process of law in the United States to which he is entitled. And, he went on, if the executive claims the right to deport without due process and in disregard for court orders, what assurances will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurances shall there be that the executive will not train its broad discretionary authority upon its political enemies? He concluded by saying, now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. If the administration continues on this road, he said, the tragic end will be that law, in time, will sign its epitaph.
KELLY: NPR's Nina Totenberg, thank you.
TOTENBERG: My pleasure. Transcript provided by NPR, Copyright NPR.
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