The Trump administration just made one of its most absurd legal arguments yet.
It came in litigation over the government’s effort to detain Kilmar Abrego Garcia ahead of his criminal trial in Tennessee. When a federal magistrate judge rejected the government’s detention motion on Sunday, she noted that her ruling could be “academic,” because the feds have signaled they’ll hold Abrego in immigration custody even if he’s released from criminal custody. So he probably isn’t going free anytime soon either way.
Which brings us to the absurd argument in the Justice Department’s effort to halt U.S. Magistrate Judge Barbara Holmes’ ruling. In support of its argument, the DOJ said in a court filing Tuesday that if Abrego is released from criminal custody and “is moved to ICE custody and deported from the United States, the prosecution would lose the meaningful opportunity to try its case. This would be irreparable harm to the public.”
OK. So, to recap, the government illegally sent Abrego to El Salvador in March, then resisted court orders from every level of the judiciary to facilitate his return until finally getting him back into the country this month. And now, having chosen to bring criminal charges against him (he pleaded not guilty), the government suggests that it would be somehow beyond its control if it (the government) winds up deporting him again — and that effectuating such a speedy deportation would irreparably harm the public.
If this sounds incoherent, that’s because it is. As I noted in connection with Holmes’ rejection of the government’s argument that Abrego is a member of MS-13, if federal prosecutors’ early arguments are a sign of things to come, that could bode well for Abrego’s legal fight. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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