Will the Trump Justice Department lose a crucial Supreme Court case because one of its lawyers was too honest?
The possibility arises in the case of Kilmar Abrego Garcia, in which government officials want the justices to bail them out of a judge’s order to return the man who the government admits it wrongly sent to El Salvador.
Representing the DOJ at a hearing last week in Maryland, Erez Reuveni said that he had asked his clients (the government) why they couldn’t return Abrego Garcia but didn’t get “an answer that I find satisfactory.” He said “the government made a choice here to produce no evidence” and “the absence of evidence speaks for itself.”
Reuveni was then placed on leave, with Attorney General Pam Bondi saying that every DOJ lawyer “is required to zealously advocate on behalf of the United States” and that “any attorney who fails to abide by this direction will face consequences.”
At the Supreme Court (with Reuveni no longer on the case), the DOJ said his “inappropriate statements did not and do not reflect the position of the United States.” The filing by Solicitor General John Sauer went on, “Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.”
Responding to that argument on Wednesday, Abrego Garcia’s lawyers said the government wants the justices to disregard Reuveni’s statements because leaving those statements undisturbed would mean that Abrego Garcia wins the litigation.
“Recognizing that the Government’s concession below that it lacks a ‘satisfactory’ answer as to why it ‘can’t’ bring Abrego Garcia back is case-dispositive,” Abrego Garcia’s lawyers wrote, the government “takes the extreme step of disavowing its own lawyer’s statements.”
“Yet,” they wrote, “the Government still has not supplied a satisfactory answer to that central question.”
They wrote that this could be the first time the government in any brief to the court “impugns its own counsel,” noting that the trial judge commended Reuveni’s candor. “But the Government, like any litigant, cannot disavow the concessions of its own counsel — especially when it does not even contend that anything about them is factually untrue,” they wrote. U.S. District Judge Paula Xinis had ordered the government to “facilitate and effectuate” Abrego Garcia’s return by Monday at midnight. Chief Justice John Roberts temporarily halted the order that day, saving the administration from the deadline — pending further order from the court, which could come anytime. In declining to halt the judge’s order on its way to the Supreme Court, appellate judges on the U.S. Court of Appeals for the 4th Circuit noted the DOJ’s action against its own lawyer and wrote that “the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney.” 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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