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Deadline: Legal Blog-Judge in Abrego Garcia case blasts 'mischaracterization' of Supreme Court order
The government’s latest stubborn stance in the Kilmar Abrego Garcia litigation is (among other things) genuinely mystifying.
https://bsky.app/profile/cnewman.bsky.social/post/3lnjzvr6pxc2k
Link to tweet
https://www.msnbc.com/deadline-white-house/deadline-legal-blog/judge-abrego-garcia-discovery-doj-trump-rcna202351
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.,,,,,
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.
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.,,,,,
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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