A federal judge grew frustrated with the Trump administration Friday as it pushed to withhold details on what it has done to reverse the deportation of Kilmar Abrego Garcia, who was sent to a prison in El Salvador as the result of an “administrative error.”
U.S. District Judge Paula Xinis ordered the government to “facilitate” Abrego Garcia’s return to the U.S. last month — and has sparred with the administration since then, ordering government lawyers to produce details on their efforts and accusing them of failing to adequately comply.
Attorney Andrew Rossman said he and the rest of the legal team seeking to return Abrego Garcia have hit a “roadblock” in discovery efforts, as the Justice Department has invoked the state secrets privilege and other privileges to withhold information in the case. Rossman cited a “paltry” number of documents provided during court ordered fact-finding.
“We have no case without knowing what steps they’ve taken or what steps they have not taken,” to return Abrego Garcia, Rossman said Friday. He pointed to a “dichotomy” between Justice Department filings saying they are complying with a court order to return him and public statements from President Trump and other top administration officials saying they will not return the man.
Justice Department attorney Jonathan Guynn argued the government has properly invoked the state secrets privilege in this case and has cooperated with all discovery efforts by Abrego Garcia’s attorneys. He said Abrego Garcia’s lawyers are “seeking a categorical piercing” of the state secrets privilege to get the answers they want.
Xinis rejected the argument, saying, “you can’t tell me that these depositions are a good faith effort” to answer questions about what operations were or are underway to return Abrego Garcia. “This is about good faith versus bad faith,” she added.
“I’m like the cat with the ball of string, and I’m just trying to keep up with the string.” Xinis said about her attempts to keep up with the Justice Department’s various privilege arguments in the case.
Xinis allowed an expedited discovery process to begin last month after Abrego Garcia’s legal team accused the Trump administration of failing to follow her order to facilitate his return to the U.S. The Supreme Court had agreed that the administration had to facilitate Abrego Garcia’s release from Salvadoran custody and “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
Xinis said Friday the depositions undertaken so far of Trump administration officials resulted in a “goose egg” and had no new knowledge in them, citing numerous “I don’t knows” provided in answers to questions from Abrego Garcia’s attorneys.
Rossman said that he and the rest of the legal team representing Abrego Garcia have only received 32 new documents in their discovery efforts, and 1,140 documents submitted in discovery are being withheld from them under “any manner of privilege” the Justice Department could invoke.
Rossman added that the Justice Department has promised additional documents from Homeland Security Secretary Kristi Noem and Secretary of State Marco Rubio, but that he and his co-counsel have not received them yet.
“It’s critical, a life is in the balance. Due process is in the balance,” Rossman said about the need for a quick resolution to discovery.
Guuyn said that the Justice Department got another update from El Salvador yesterday that Abrego Garcia is in “good health” and has “gained weight” since his detention there.
After the two and a half hours of the hearing in open court ended, Xinis held a closed-door argument on the remaining disagreements between the sides on sealed discovery documents.
Trump administration spars with judge over deportation
Abrego Garcia, who was born in El Salvador, entered the U.S. illegally in 2011 and lived in Maryland after that. In 2019, he was granted a withholding of removal, a legal status that prevented the government from deporting him back to his home country of El Salvador because of a risk of persecution by local gangs.
But Abrego Garcia was among the hundreds of migrants sent by the Trump administration to El Salvador’s notorious Terrorism Confinement Center prison, or CECOT, in March.
A federal immigration official acknowledged in court papers his removal to El Salvador was an “administrative error,” but the administration has since declined to return him to the U.S. Instead, top administration officials have claimed Abrego Garcia is a member of the gang MS-13, citing allegations from a confidential informant. His lawyers argue that Abrego Garcia is not a member of MS-13 or any other gang, and has never been charged or convicted of any crimes in the U.S., El Salvador or any other country.
Guynn and Xinis got into a heated back-and-forth over the legality of Abrego Garcia’s removal on Friday, after Guynn said that Abrego Garcia was “removed lawfully” from the U.S. to El Salvador.
“That’s not lawful,” Xinis said, citing a previous court order that barred Abrego Garcia’s removal specifically to El Salvador.
“He’ll never walk free in the United States.” Guynn said, saying he will be in U.S. custody if he was ever returned to the United States as removal proceedings play out.
“That sounds to me like an admission of your client that your client will not take steps” to return Abrego Garcia, Xinis said. “That’s about as clear as it gets.”
Xinis later chastised Guynn for suggesting that Abrego Garcia’s arrest was lawful, which even Erez Reuveni, a Justice Department attorney who first argued the case, admitted in court proceedings that it was not, and that the arrest was warrantless.
“It was highly publicized that Mr. Reuveni was benched,” for honestly answering her questions, Xinis said.
Mr. Trump and other top administration officials have repeatedly said it is up to El Salvador whether to release Abrego Garcia. As of April 21, he was being held at a lower-security facility in Santa Ana, according to a declaration from a State Department official.
In a separate case in Washington, D.C., the Justice Department has argued in court that due to a financial agreement with the Salvadoran government, it does not have constructive custody over the detainees who were moved from the U.S. under the Alien Enemies Act once they are in CECOT or other Salvadoran prisons, and cannot be compelled to return Abrego Garcia or any other person detained in El Salvador under the agreement.
Government claims “state secrets”
The administration’s assertion of privilege was revealed in an order last week from Xinis, which asked lawyers for Abrego Garcia and the Justice Department to file additional legal papers about the administration’s “invocations of privilege, principally the state secrets and deliberative process privileges.”
Attorneys for Abrego Garcia asked for Xinis to grant additional depositions in their discovery efforts, including potentially a deposition with someone with first-hand knowledge of efforts to return Abrego Garcia from the White House. The Justice Department called the request “unreasonable” and added that more depositions “goes well beyond the limited discovery the Court granted.”
The Justice Department had indicated last month that it would invoke certain privileges to protect information regarding Abrego Garcia’s removal from the U.S., citing in a filing the attorney-client privilege, state secrets privilege and certain executive privileges.
Administration lawyers had said that a request for documents from Abrego Garcia’s legal team about the terms of any arrangement regarding the government’s use of El Salvador’s notorious prison to house deportees from the U.S. “calls for the immediate production of classified documents, as well as documents that defendants may elect to assert are subject to the protections of attorney-client privilege and the state secrets privilege.”