The Trump administration is still fighting against complying with court orders to facilitate Kilmar Abrego Garcia’s release from El Salvador. Its latest attempt was so brazen that it led the judge presiding over the case to call it a “willful and bad faith refusal to comply with discovery obligations.”
The rebuke came Tuesday in an order from U.S. District Judge Paula Xinis, who initially instructed the government to “facilitate and effectuate” Abrego Garcia’s return from El Salvador. An immigration judge previously ruled the government was not allowed to send him there.
The Supreme Court largely upheld Xinis’ order earlier this month, when it said her command “properly requires the Government 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.”
The justices sent the case back to Xinis for her to clarify the “effectuate” part of her order, which she amended to say that the government must “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” She also granted Abrego Garcia’s request for expedited discovery — “discovery” being the information gathering process during litigation.
Specifically, Xinis’ ordered the discovery “to ascertain what, if anything, the [government] Defendants have done 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.’”
That language she cited is from the Supreme Court. Nonetheless, Trump Justice Department lawyers objected to answering certain discovery questions that the DOJ said were “based on the false premise that the United States can or has been ordered to facilitate Abrego Garcia’s release from custody in El Salvador.” (The DOJ added the italics for emphasis.)
Let’s break down what’s happening there.
The government begins by calling what the Supreme Court said a “false premise.” It’s unclear how that can be a “false premise” if it’s what the Supreme Court said to do. An odd start, but it gets odder when we look more closely at the authority on which the DOJ relied for that proposition.
The DOJ references the Supreme Court’s order, but this line — “See Abrego Garcia, 604 U.S.—, slip op. at 2 (holding Defendants should ‘take all available steps to facilitate the return of Abrego Garcia to the United State’) (emphasis added)” — includes a quotation that doesn’t appear in the high court’s order.
That quotation — “take all available steps to facilitate the return of Abrego Garcia to the United State[s]” — does, however, appear in Xinis’ amended order that she issued after the Supreme Court sent the case back to her. The DOJ’s parenthetical quotation apparently accidentally leaves the “s” off of “United States.” This is something that wouldn’t usually need mentioning, but it’s another error that’s indicative of the government’s not only defiant but sloppy approach.
And to address the merits, such as they are, of the DOJ’s incorrectly cited position, it seems to imply that it’s illogical to say that the government must provide information about its efforts to facilitate Abrego Garcia’s release because it was only ordered to facilitate his return — which, in addition to not being true, doesn’t make logical sense on its own terms, because he couldn’t be returned without being released. It might have come closer to making sense if they were saying that they couldn’t provide information about facilitating his return if they were only ordered to facilitate his release, but that’s not what’s happening here and that’s not what they said.
At any rate, Xinis didn’t appreciate the DOJ’s “false premise” argument. In her Tuesday order, the Obama appointee called out both government officials and the lawyers representing them. “Defendants — and their counsel — well know that the falsehood lies not in any supposed ‘premise,’ but in their continued mischaracterization of the Supreme Court’s Order,” she wrote, adding: “Defendants’ objection reflects a willful and bad faith refusal to comply with discovery obligations.”
In the order, Xinis told Abrego Garcia’s lawyers to amend some of their questions and for the government to answer outstanding requests by 6 p.m. ET on Wednesday.
Whatever comes of this phase of the litigation, the episode emphasizes that, if and when the case goes back to the justices, they shouldn’t leave any wiggle room in their order like they did the last time. That alone apparently wouldn’t guarantee compliance if the government won’t even recognize the clear command that has already come from the high court, but it could help bring this needlessly drawn-out phase of the case to a close.
To be sure, returning Abrego Garcia to the U.S. wouldn’t ensure that he stays here. After admitting to erroneously sending him to El Salvador, where he has been detained without conviction of any crime, the government’s position is that if he returns to the U.S., officials would seek his removal to a different country or seek to terminate the order preventing his removal to El Salvador because, it alleges, he’s a member of the MS-13 gang, which the administration has deemed a foreign terrorist organization. As to that terrorist gang allegation, which Abrego Garcia contests, Ronald Reagan-appointed appellate Judge J. Harvie Wilkinson III wrote last week in this case: “Perhaps, but perhaps not. Regardless, he is still entitled to due process.” Whether and when that process comes remains to be seen.
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