Welcome back, Deadline: Legal Newsletter readers. The Trump administration has still failed to “facilitate” Kilmar Abrego Garcia’s return to the United States, despite orders from judges at every level of the court system. It’s far from the only pressing story in Donald Trump’s second term, but the Abrego Garcia case does well to capture his administration’s disdain for the law, serving as a symbol for the moment we’re in and where we’re headed.
It’s not just Democratic-appointed jurists calling out the due process disaster. Leading the way this week was appellate Judge J. Harvie Wilkinson III, a Reagan appointee who was in the running for a Supreme Court seat during the George W. Bush administration. “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,” he wrote for a three-judge panel on the 4th U.S. Circuit Court of Appeals. Backing the latest order from U.S. District Judge Paula Xinis, the panel declined the Trump Justice Department’s invitation to, as Wilkinson put it, “micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.”
And what about that recent SCOTUS decision? Coming from the Republican-dominated Roberts Court, it wasn’t exactly a partisan hit job, either. That didn’t stop Trump adviser Stephen Miller from wrongly calling the high court order a win for Trump. In fact, while the justices cited the deference owed to the executive branch in foreign affairs, they told officials to “‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
And yet, there he is — and here we are. And while we’re here, let’s address the administration’s suggestion that none of this due process stuff matters because Abrego Garcia is, in its view, a bad guy.
First and foremost, whether someone is perceived as good, bad or in between is irrelevant to whether they’re entitled to legal protections. Were it otherwise, we wouldn’t need warrants, juries, trials, appeals or other guardrails that bolster the American legal system.
Second, the “bad guy” case against Abrego Garcia – featuring, among other things, his vaguely alleged MS-13 gang ties — is not ironclad. But even if it were, this second point is less important than the first. Remember, a judge previously ruled that Abrego Garcia couldn’t be removed to El Salvador, the very country to which the government not only sent him but deposited him into a notorious prison without having been convicted of any crime. That he could eventually be deported properly upon his U.S. return isn’t an excuse to avoid legal compliance in the meantime — if anything, that potential conclusion to this sordid saga makes it even more foolish for Trump to trash the Constitution over it.
As Judge Wilkinson put it: “[T]he government has conceded that Abrego Garcia was wrongly or ‘mistakenly’ deported. Why then should it not make what was wrong, right?”
Why, indeed. But if the government keeps failing to heed that question, then Chief Justice John Roberts and his colleagues will have to issue a stronger order if the case comes back to them. The ultimate showdown could be the resolution of a seemingly inevitable standoff between Roberts and Trump on court order compliance, a danger that’s been building over the past few months but hasn’t yet truly come to a head.
The contempt issue moved forward in a separate (but similar) case this week, stemming from Trump’s summary removal of alleged Venezuelan gang members under the wartime Alien Enemies Act. The Supreme Court previously overturned U.S. District Judge James Boasberg’s orders that halted the deportations, but there was still the separate matter of whether Trump officials violated his orders. In a lengthy ruling Wednesday, Boasberg said there’s probable cause to find they did.
“So now what?” Boasberg actually posed the question toward the end of his ruling, which I appreciated because I was wondering about that as I read it. He gave the administration an April 23 deadline to either 1) “purge” its contempt (meaning try to fix it), or 2) if it declines to purge, identify the people who knew about his order in the class action lawsuit but chose “not to halt the transfer of class members out of U.S. custody on March 15 and 16.” If the government goes the latter route, the judge could wind up referring people to the DOJ for contempt prosecutions.
But the Trump DOJ wouldn’t do that! Yes, well, here’s where things could get interesting: Under federal criminal procedure rules, judges can appoint independent lawyers to prosecute contempt. Possible problem solved, right?
Not necessarily. The issue made its way to the Supreme Court a couple of years back, when the court declined to take up a legal challenge to judge-appointed contempt prosecutions. But Trump appointees Neil Gorsuch and Brett Kavanaugh dissented from the denial, calling the practice unconstitutional and presaging a potential hitch in any Boasberg-appointed efforts.
But first, we’ll have to see how the next contempt steps play out, as the DOJ tries to appeal Boasberg’s latest ruling in a challenge that could also reach the justices.
Meanwhile, the high court was supposed to wrap up the term’s hearings this month, with the final two-week session set to start this coming Monday, featuring important disputes over religion in schools. But on Thursday, the justices added a rare May session involving Trump’s bid to curb birthright citizenship protections. The court usually publishes the term’s final rulings by late June, but it sometimes goes into July and, in fact, has done so more than once in recent years with Trump-related cases. Last term, the presidential immunity ruling in Trump v. United States was among the final decisions on July 1. Now that he’s back in office (thanks partly to the justices letting him run again), Trump is still testing the courts and the country.
The courts are standing up, but we still don’t know how this all ends in the Abrego Garcia case and other pending and looming legal battles. On that note, I’ll give Judge Wilkinson’s soaring opinion the last word, where he wrote, “The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.” Yet, the judge ended on a more hopeful note “that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”
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