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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