Frustrated Judge Struggles In The Quicksand Of The Abrego Garcia Case
In the Kilmar Abrego Garcia case, U.S. District Judge Paula Xinis of Maryland is all of us: baffled, frustrated, annoyed, and at times outraged by the Trump administration's conduct. It has flouted her orders, given her the run-around on facts, advanced contradictory legal arguments, and stonewalled discovery. The lingering image across multiple hearings in her courtroom is Xinis hunched over the bench, head in hands, imploring DOJ lawyers to provide her with straight answers to her questions.
In another hearing Monday that stretched for more than two hours, Xinis waded through the latest round of Kafkaesque circularity from the Trump administration as it urged her to dismiss the original Abrego Garcia case now that he is back in the United States, albeit to face trumped-up federal charges in Tennessee. In the end, after very little progress was made, Xinis scheduled another hearing for Thursday, when she wants the Trump administration to put on the witness stand a yet-to-be-determined official who can give first-hand testimony as to the plans for deporting Abrego Garcia to a third country if he is released from custody in his criminal case.
It's seems almost inevitable that no new government witness will provide any clearer answers than have been given so far in a case that Xinis described today from the bench as 'like trying to nail Jello to the wall.'
Before we descend into the miasma of Monday's hearing, a reminder that the historic implications of this case don't concern the fate of Abrego Garcia himself, Trump administration deportation policies, or the practice of rendition to CECOT in El Salvador. The core of the case is whether the executive branch can defy the judicial branch with impunity, upsetting the Constitution's carefully calibrated balance of power.
The top-line news from the hearing today, for those deep in the procedural weeds of the case, was that Xinis denied two different government motions to dismiss Abrego Garcia's case. The first motion to dismiss advanced three different bases for dismissal, and she rejected all three of them without even hearing arguments from Abrego Garcia's lawyers: 'I don't need to hear from plaintiff on this motion. This is an easy one.'
The government's second motion to dismiss argued that the case is now moot because the Trump administration had satisfied Xinis' preliminary injunction by returning Abrego Garcia to the United States. Xinis, not convinced that the government had yet complied in full, denied that motion, too.
For his part, Abrego Garcia's lawyers were asking Xinis to order Abrego Garcia returned to Maryland if and when he is released from custody in the criminal case the Trump administration drummed up against him in Tennessee. Xinis didn't rule on that motion and likely won't until she hears the testimony slated for Thursday.
While that is the top-line news, it hardly does justice to the absurdity of some of the Trump administration's arguments.
Continuing the cavalcade of DOJ lawyers involved in the case, the bulk of the argument for the Trump administration was carried on Monday by Bridget K. O'Hickey, who until May was working in the Florida Attorney General's Office. Swapping out DOJ attorneys in the most controversial cases has been a common practice in Trump II, a clear effort to avoid accountability for prior misrepresentations, missteps, and assurances.
O'Hickey wasn't even at the Justice Department for the first several weeks of the Abrego Garcia case — a point Xinis made openly. O'Hickey struggled in court to recite the factual and legal history of the case, a deficiency called out by an incredulous Xinis. 'This is your argument!' Xinis exclaimed at one tense moment as O'Hickey stumbled to make the government's case. 'You are taking up my time with this argument.' On several occasions, questions from Xinis were followed by painfully long silences while O'Hickey conferred at the counsel table with Deputy Assistant Attorney General Jonathan Guynn, who joined DOJ in April.
After O'Hickey said the Trump administration has no intention of repeating its error and removing Abrego Garcia to El Salvador again, Xinis interjected that the government has not acknowledged it was an error: 'For three months, your clients told the world they weren't going to do anything to bring him back. … Am I really supposed to ignore all that?'
In a subsequent exchange, Xinis came close to losing her cool when O'Hickey said the administration has acknowledged the removal was an administrative error. Xinis pointedly traced the arc of DOJ attorneys first telling her that it was an error (that attorney, Erez Reuveni, was subsequently fired from the Justice Department), then telling her that it wasn't and now, on Monday, telling her that it was after all.
Xinis poked and prodded throughout the hearing. She called out the Trump DOJ for telling her for months that it didn't have the power to produce Abrego Garcia because he was in the custody of El Salvador, then proceeding to produce him to face criminal indictment in Tennessee. She demanded to know when the DOJ lawyers in the civil case knew about the machinations of the criminal case. She pressed DOJ lawyers about whether the indictment of Abrego Garcia played a role in his return to the United States. The answers from the DOJ attorneys were mostly non-responsive.
Once she dispensed with the government's motions to dismiss, Xinis turned to the issue of what happens to Abrego Garcia if he is released from custody while the criminal case is pending. While a magistrate in Tennessee was prepared to release Abrego Garcia under strict conditions, his lawyers last week took the highly unusual step of asking her to pause his release for fear the government would immediately detain and deport him.
In Monday's hearing, DOJ's Guynn confirmed that the Department of Homeland Security plans to detain Abrego Garcia if he is released and deport him to an unnamed third country. But Guynn left open the possibility that the government might instead challenge the original immigration judge order that bars Abrego Garcia's removal to El Salvador, the order the government violated on March 15 when it shipped him to CECOT.
Abrego Garcia's attorneys want him returned to Maryland and given notice and hearing before he is deported to a third country. The Trump administration is taking the position that Xinis can't order Abrego Garcia's return to Maryland because he was no longer in Maryland when the case before her was filed. A stunned Xinis called that position 'remarkable' since Abrego Garcia was unlawfully removed and at the time the lawsuit was filed he was 'in CECOT at your hand.'
For her part, Xinis was adamant about getting information from the Trump administration about the specifics of its plans for deporting Abrego Garcia to a third country. 'Given the history of this case and a series of unlawful actions, I believes it's in my authority to at least get the information,' Xinis said.
Today's proceedings come against the backdrop of months of stonewalling from the Trump administration that Xinis is still considering treating as contempt of court. Also pending is a motion from Abrego Garcia to sanction the government for discovery violations. But as with so many Trump-era confrontations, the brazenness of the defiance isn't matched by a proportional or speedy response.
I don't mean to paint Xinis as helpless or hapless. She is a longtime litigator who spent most of her legal career as a federal public defender before President Obama appointed her to the bench in 2016. With nearly a decade as a judge, Xinis is no noob. But by the luck of the draw, Xinis wound up among the first wave of judges to confront the compromised DOJ of the Trump II presidency.
Things are not how they used to be.
Correction: The original version of this article incorrectly suggested that Pam Bondi was still Florida attorney general when President Trump appointed her as U.S. attorney general. Bondi's term as Florida AG ended in 2019.
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