The Trump administration argued that its court-ordered duty to “facilitate” Kilmar Abrego Garcia’s U.S. return is limited to removing any “domestic obstacles” to that return. But the federal judge presiding over the case called that a “fallacy.”
U.S. District Judge Paula Xinis gave two reasons for her conclusion in an order following Tuesday’s hearing over the government’s efforts (or lack thereof) to remedy its illegal deportation of Abrego Garcia to El Salvador, a country to which a different judge previously ruled he couldn’t be sent. The Trump administration not only sent him and others to that country without due process but specifically to a notorious prison there.
First, Xinis wrote, the federal government has taken more expansive facilitation efforts in the past. In a lengthy footnote (on Page 5 of her order), the Obama appointee cited several examples of the government taking international action, including bringing someone back from Haiti “with assistance from the United States Marshal Service, which manned the Government airplane that flew to Haiti to retrieve” them.
Xinis’ second and more fundamental point was that officials apparently have done “nothing” to aid in Abrego Garcia’s release as ordered by the Supreme Court last week, which said the government had to “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” The judge said the administration’s “attempt to skirt this issue by redefining ‘facilitate’ runs contrary to law and logic.”
So, what happens next in the case?
The context of Xinis’ order was her granting Abrego Garcia’s request for expedited “discovery,” referring to the process of gathering information in litigation. The judge said she’s pushing that process forward on a speedier-than-usual basis “to ascertain what, if anything” the government has done to (quoting the Supreme Court’s order) “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 judge also said she’s considering whether to hold government officials in contempt.
The discovery process is set to play out in the coming days and includes depositions of officials, with additional briefing to follow later this month after the expedited discovery process is concluded.
That’s all to say that this crucial matter isn’t on course to be legally resolved in a matter of days. Whatever happens in the district court might ultimately have to be resolved by the Supreme Court more definitively this time. Had the justices taken a stronger stance against the administration last week, Abrego Garcia might have been back by now.
Of course, the administration could likely moot the issue at any time with a diplomatic resolution, given its close working relationship with the Salvadoran government that’s detaining Abrego Garcia (and others without due process) in its terrorism prison.
At this point, it’s worth taking a step back from the legal minutiae of discovery, contempt and legal word games over what “facilitate” means to ask: What are we doing here?
The government has admitted that it was an “error” to send Abrego Garcia to El Salvador. If it were to bring him back and then properly deport him after giving him due process, that would emphasize that this episode has been, at best, a waste of time. But the administration’s decision to dig in, rather than go through legal channels to achieve its goals, is what needlessly caused — and is needlessly prolonging — the sordid affair.
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U.S. District Judge James Boasberg said probable cause exists to find the Trump administration in contempt for violating his order over deportation flights last month, explaining that he didn’t reach that conclusion lightly but that officials failed to provide satisfactory answers to explain their actions.
“The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it,” Boasberg wrote in a lengthy opinion Wednesday.
The judge said he would give the government the chance to remedy its contempt but if it doesn’t, he’ll proceed to identify the people in contempt and refer the matter for prosecution.
Notably, contempt is unique in that judges can appoint lawyers to prosecute it if the Justice Department declines.
Notably, contempt is unique in that judges can appoint lawyers to prosecute it if the Justice Department declines, as one imagines could be the case if Boasberg ultimately refers any Trump officials for contempt prosecutions to the Trump DOJ. (Also notably and potentially relevant down the line, Trump-appointed Supreme Court Justices Neil Gorsuch and Brett Kavanaugh have criticized this independent appointment authority in contempt prosecutions.)
Boasberg’s ruling follows an April 3 hearing in Washington, D.C., at which he pressed the government about its compliance with his orders. Specifically, the compliance litigation centered on temporary restraining orders he issued March 15 to halt certain deportations under the Alien Enemies Act, a rarely used law that President Donald Trump invoked to summarily deport alleged Venezuelan gang members to El Salvador.
The 18th-century law had been invoked only three times before in the nation’s history, all during declared wars.
Boasberg’s ruling comes as another judge warned of possible contempt proceedings in the separate high-profile case of Kilmar Abrego Garcia, whom the government also sent to El Salvador without due process and is fighting against his return despite admitting he should not have been deported to that country.
In his opinion Wednesday, Boasberg noted that courts typically let the party in contempt “purge” (or fix) their contempt by obeying the order they violated. He said the most obvious way for the government to purge its contempt here would be “by asserting custody of the individuals who were removed in violation of the Court’s classwide TRO [temporary restraining order] so that they might avail themselves of their right to challenge their removability through a habeas proceeding.” He added that the government wouldn’t need to release any of those individuals or “transport them back to the homeland,” but he also said the government can propose other compliance methods that he would consider.
“In the event that Defendants do not choose to purge their contempt, the Court will proceed to identify the individual(s) responsible for the contumacious conduct by determining whose ‘specific act or omission’ caused the noncompliance,” the judge wrote in his opinion. He said he would begin by requiring declarations and that, if they’re unsatisfactory, he’ll proceed “either to hearings with live witness testimony under oath or to depositions conducted by Plaintiffs.”
The next step after that would be for the judge to request that the government prosecute the contempt, with him being prepared to appoint another attorney if that doesn’t happen. The relevant criminal procedural rule says: “The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.”
Boasberg gave the government an April 23 deadline to either 1) file a declaration explaining the steps it has taken and will take to “purge” the contempt; or 2) if it chooses not to do so, to identify the people with knowledge of his order who chose “not to halt the transfer of class members out of U.S. custody on March 15 and 16.”
Trump previously called for Boasberg’s impeachment over his rulings, after which Chief Justice John Roberts issued a rare public statement that impeachment “is not an appropriate response to disagreement concerning a judicial decision.” An Obama appointee, Boasberg is the chief federal trial judge in the District of Columbia.
While contesting that they violated the judge’s orders, Trump administration officials separately asked the Supreme Court to overturn the orders. The court did so in a divided ruling on April 7, after which Trump officials argued to Boasberg that the ruling nullified any potential contempt proceedings before him. Rejecting that argument in his opinion Wednesday, Boasberg wrote that “the fact that the Supreme Court determined that this Court’s TROs suffered from a venue defect does not affect — let alone moot — the compliance inquiry presently teed up here.”
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