At Monday’s White House meeting between President Donald Trump and Salvadoran President Nayib Bukele, Trump adviser Stephen Miller incorrectly described the Supreme Court order in the Kilmar Abrego Garcia case when he said the justices “said that the district court order was unlawful and its main components were reversed 9-0 unanimously.” Whether Miller’s mischaracterization was intentional or not, Justice Department lawyers are also miscasting the high court order during litigation in Abrego Garcia’s case.

To understand how they’re doing so (putting aside, for a moment, why they’re doing so), let’s look at the text and context of the Supreme Court order.

When the justices issued the order on April 10, they were considering the government’s bid to block an April 4 order from U.S. District Judge Paula Xinis that told the government to “facilitate and effectuate” Abrego Garcia’s return to the U.S. “by no later than 11:59 PM on Monday, April 7.” By the time the justices issued the April 10 order, Chief Justice John Roberts had already temporarily halted the judge’s deadline with a so-called administrative stay, so the deadline was a moot issue and the question was whether the order to “facilitate and effectuate” Abrego Garcia’s return would stand.

With that background in mind, here’s the operative paragraph of the justices’ order that the DOJ has since selectively quoted:

Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court’s order remains in effect but requires clarification on remand. The order 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 intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

After the high court’s order came down, Xinis quickly amended her order to now say that the government must “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.”

But the DOJ’s recent emergency appeal to halt Xinis’ latest order seemed to mischaracterize — or at the very least, selectively quote from — the Supreme Court order. Recounting the recent history of the litigation in its emergency motion to the U.S. Court of Appeals for the 4th Circuit, here’s how DOJ lawyers described what happened at the high court (for readability, I’ll use ellipses to skip over case and docket citations):

[T]he Supreme Court granted Defendants’ application in part. The Court affirmed that Defendants must “facilitate” Abrego Garcia’s “release from custody in El Salvador.” … But it did so only insofar as such directive gave “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” … and tracked the “well-established policy” of the Executive Branch … The Court unanimously rejected the District Court’s unprecedented directive to effectuate Abrego Garcia’s removal from El Salvador — i.e., force a foreign sovereign to relinquish one of its own citizens being “detained pursuant to [its] sovereign, domestic authority.” … The Court remanded for the District Court to “clarify” its order in a way that would not “exceed the District Court’s authority.”

Now, if one were to have only read the DOJ’s summary and not the Supreme Court’s order, one would miss some important language. To take one example of how the DOJ’s focus paints an incomplete picture, let’s revisit the Supreme Court’s line that said Xinis’ initial order “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.”

Notice what’s missing from that line in the DOJ’s retelling? The second half, which ordered the government “to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

Of course, even according to the DOJ’s gerrymandered framing, it’s unclear how its position that “facilitate” means it only must remove “domestic barriers” to Abrego Garcia’s return squares with the high court’s command to facilitate his “release from custody in El Salvador.” But it’s also difficult to see how only taking domestic actions would “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” In any event, the absence of the second half of that line from the justices suggests the government finds that language more challenging to contend with.

So that’s how the DOJ is seemingly trying to dodge the Supreme Court’s order.

But why? Obviously, the 4th Circuit judges (and/or their clerks) can read the order and see what’s missing from the government’s framing. Indeed, on Thursday, the appellate panel led by Reagan-appointed Judge Harvie Wilkinson rejected the invitation to, as the judges put it, “micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.”

Put another way, what’s the plan for if and when the case goes back to the justices?

It’s always possible there’s no plan and, like Trump himself appears to do in the political sphere, the lawyers are fighting each battle as it comes.

But I’ll note another consideration to keep in mind as the case heads toward the justices for a potentially more definitive resolution.

This case has been widely discussed (both accurately and inaccurately) in terms of what the justices unanimously did and didn’t do. But their order wasn’t the type of opinion officially written by one justice and signed on to or not signed on to by others. It’s what’s called a “per curiam,” meaning “by the court.” It’s unsigned. The only justices who put their names to any writing were the court’s three Democratic appointees, who lodged an accompanying statement to say they would’ve just let Xinis’ initial order go forward undisturbed (which, in retrospect, could’ve settled this needlessly sordid matter).

So, the majority’s language in the unsigned per curiam can be read as a compromise among the court’s Republican appointees, who perhaps initially were not all inclined to go as far in Abrego Garcia’s favor as the court wound up going — at least not without making certain concessions first, such as, perhaps, the reminder to give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” or the command for Xinis to clarify her order that has led to additional litigation while Abrego Garcia remains confined, without conviction, in a country to which the government has admitted it mistakenly sent him.

That’s all to say that the ultimate legal resolution of this case might not be as unanimous of an affair. It could come down to whether a majority of the court cares if the government accomplishes — or at least seriously tries to accomplish — the bottom line of remedying what the government has admitted was Abrego Garcia’s illegal removal to El Salvador. The DOJ’s plan could be to hope that a majority of justices don’t care.

If that’s the plan, then the DOJ might hope that a majority of the high court sees the matter differently than the 4th Circuit judges led by Wilkinson who, in rejecting the government on Thursday, said they “cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”   

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