With Kilmar Abrego Garcia back in the U.S. after his illegal removal to a notorious Salvadoran prison, followed by months of Trump administration delay and defiance, the administration wants to focus on the new criminal charges it had waiting for him upon his return. But understanding what brought us to this point is crucial not only for how to think about the criminal case, but also because his civil case against the government isn’t over just because he’s back.
Abrego Garcia’s lawyers reminded us of that Sunday in their latest court filing to U.S. District Judge Paula Xinis, the Maryland judge who ordered the government to facilitate his return back in April. The filing came in response to the Trump Justice Department’s request Friday to halt pending civil litigation over fact-finding into the government’s facilitation efforts, just after Xinis had approved Abrego Garcia’s lawyers’ bid to file a sanctions motion against the government, due Wednesday.
Responding to the claim that the civil case is now moot due to his return, Abrego Garcia’s lawyers reminded the Obama appointee that she “still retains jurisdiction to find contempt and impose sanctions.”
They called the government’s claim that it has complied with her order “pure farce,” writing:
The Government flouted rather than followed the orders of this Court and the United States Supreme Court. Instead of facilitating Abrego Garcia’s return, for the past two months Defendants have engaged in an elaborate, all-of-government effort to defy court orders, deny due process, and disparage Abrego Garcia. In its latest act of contempt, the Government arranged for Abrego Garcia’s return, not to Maryland in compliance with the Supreme Court’s directive to “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” . . . but rather to Tennessee so that he could be charged with a crime in a case that the Government only developed while it was under threat of sanctions.
Farcical is a good summary of this case and the administration’s broader immigration stance. The description pairs well with U.S. District Judge James Boasberg’s recent nod to Franz Kafka’s “The Trial,” in comparing the novel’s absurd legal ordeal to the administration’s summary removals of scores of Venezuelan immigrants to El Salvador’s mega-prison known for human rights abuses. (Litigation is pending separately in that case in Washington, D.C., as lawyers try to secure the immigrants’ return. That case also includes an attempt to hold the administration accountable for contempt, which is pending separately on the government’s appeal in D.C.’s federal appeals court.)
Urging Xinis to keep the civil case alive, Abrego Garcia’s lawyers said the government’s “wanton disregard for the judicial branch has left a stain on the Constitution” and that if there’s “any hope of removing that stain, it must start by shining a light on the improper actions of the Government in this tragic affair and imposing meaningful remedies.”
Meanwhile, Abrego Garcia’s criminal case is getting started in Tennessee, where he’s charged with illegally transporting undocumented immigrants. It’s an understatement to say the new case will be highly scrutinized, given how it came about in an apparent attempt by the administration to save face. That doesn’t mean federal prosecutors won’t be able to secure a conviction; they may be even more motivated to do so, given the political stakes. On that note, ABC News reported, citing unnamed sources, that the decision to pursue the criminal case led high-ranking Tennessee prosecutor Ben Schrader to resign due to “concerns that the case was being pursued for political reasons.” Asked about the reason for his resignation, Schrader declined to comment to NBC News. If his resignation is connected to the criminal case against Abrego Garcia, then the administration’s political posturing through the Justice Department has led to the loss of yet another career prosecutor — one of this administration’s sordid legacies, as exemplified by the Eric Adams dismissal debacle earlier this year. Abrego Garcia is reportedly set to go before a judge Friday for arraignment, where he’ll presumably plead not guilty and the government will press its case for detaining him pending trial. We don’t know how this criminal case will end, but it will proceed in a U.S. court under the due process protections the administration has resisted providing in this case and others. 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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