Reading the latest batcrap Justice Department filing in the Kilmar Abrego Garcia case is an exercise in confusion. Are they letting ChatGPT draft now? Are they really this ignorant about the Federal Rules of Appellate Procedure? Are they assuming that the Supreme Court will bail them out in any event, so they just barf out nonsense and head to the bar?
Okay, that last one is unfair. There are only five lawyers at the Justice Department willing to put their names on anything at this point, and they’re all working real hard. But seriously … what even is this shit?
The case involves the Maryland man wrongly deported to Nayib Bukele’s gulag, despite a 2019 order from an immigration judge withholding removal because the Salvadoran native faced grave danger from gangs. Judge Paula Xinis first ordered the government to effectuate Abrego Garcia’s return by April 7, but then the Supreme Court bigfooted in and saved the Trump administration from blowing off a trial judge’s deadline.
The Court’s conservatives seemed to be leaning toward the position articulated by Judge J. Harvie Wilkinson III at the Fourth Circuit in a concurrence with the denial of stay.
“There is no question that the government screwed up here,” the appellate judge harrumphed, adding hopefully that the government should take the opportunity to correct its error and dispel the appearance that it was advocating “a path of perfect lawlessness.”
“Positing the government’s duty as simply one of facilitation also softens the tension between the judicial and executive branches,” he reasoned. “Further confining the district court’s directive as an opportunity for the government to correct its own admitted error allays the concern that the Judiciary is on the verge of some broad intrusion into what rightly are executive diplomatic powers.”
Perhaps this level of explicit lobbying from the Court’s conservative justices would have done the trick. But instead they upheld the trial judge’s order (“the District Court’s order remains in effect”) while vaguely instructing her to “clarify” it “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Whatever that means.
The government then resumed its posture of open defiance, blithely insisting that the obligation to “facilitate” Abrego Garcia’s return involves no more than cheerfully arresting him if he turns up at a lawful port of entry.
Judge Xinis, who spent twelve years as a federal public defender (so don’t even think about trying it, asshole!) responded that she did not agree, but before addressing the legal issues, the parties could spend two weeks in intensive discovery. (Asshole.) First up, she ordered the four DHS officials who submitted declarations to sit down with lawyers from the ACLU and answer questions under oath.
This prompted a fit of the vapors from Drew Ensign, the deputy AG they send into the meat grinder in immigration cases, who purported to be shocked, shocked that the court would invade attorney-client privilege by forcing the general counsel for the Department of Homeland Security to be deposed.
“You do have to consider what happens with that waiver of privilege when you put him up as an affiant,” Judge Xinis tut-tutted. “But that was your decision.”
Now, ordinarily orders of discovery are not appealable. But the Trump DOJ has appealed everything, including administrative stays, with some success. And so within hours it noticed an appeal to the Fourth Circuit.
While admitting that the amended order directing the government to “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible” conforms exactly to the Supreme Court’s edict, the government insists that Judge Xinis means something different from what the Supreme Court’s conservatives had in mind. Sure, she hasn’t actually told them to do anything yet. But she intends to! And isn’t that what emergency relief is for?
They also request mandamus “to direct the District Court to vacate its capacious discovery order.”
“Depositions of Executive Branch officials are especially unjustifiable,” they howl, adding that “In its zeal to raze every barrier to expeditious and extensive discovery, the District Court did not even let Defendants brief the issue—or offer alternatives.”
They conveniently omit to mention that all four of the named officials submitted sworn declarations in this very case, and that the judge instructed the government to raise issues of privilege “as expeditiously as possible so I can determine whether there is existing privilege on the areas in question because you’ve already put him up as an affiant.”
Probably just a memory lapse by Drew Ensign, who put his name on the appeal less than 24 hours after the hearing in question. Apparently the amnesia is bad — he’s now claiming that declaring Abrego Garcia “a member of a foreign terrorist organization (MS-13)” disappears the 2019 judicial order barring his removal, so he “no longer has any right to withholding of removal.”
The Fourth Circuit gave the plaintiff until 5pm to respond, but then decided not to wait for it. In a blistering denial they called the government’s request “both extraordinary and premature.”
Judge Wilkinson, wrote for the unanimous panel:
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
He also noted that the government’s reference to its own internal DHS definition of the word “facilitate” is not binding on the court since Chevron deference is dead.
Congratulation, Mister Chief Justice! This dumb turkey will be back on your desk in the morning.
Abrego Garcia v. Noem [District Docket via Court Listener]
Abrego Garcia v. Noem [Fourth Circuit Docket via Court Listener]
Noem v. Abrego Garcia [SCOTUS Docket]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
The post Fourth Circuit To DOJ: Bro, Do You Even Law? appeared first on Above the Law.
Reading the latest batcrap Justice Department filing in the Kilmar Abrego Garcia case is an exercise in confusion. Are they letting ChatGPT draft now? Are they really this ignorant about the Federal Rules of Appellate Procedure? Are they assuming that the Supreme Court will bail them out in any event, so they just barf out nonsense and head to the bar?
Okay, that last one is unfair. There are only five lawyers at the Justice Department willing to put their names on anything at this point, and they’re all working real hard. But seriously … what even is this shit?
The case involves the Maryland man wrongly deported to Nayib Bukele’s gulag, despite a 2019 order from an immigration judge withholding removal because the Salvadoran native faced grave danger from gangs. Judge Paula Xinis first ordered the government to effectuate Abrego Garcia’s return by April 7, but then the Supreme Court bigfooted in and saved the Trump administration from blowing off a trial judge’s deadline.
The Court’s conservatives seemed to be leaning toward the position articulated by Judge J. Harvie Wilkinson III at the Fourth Circuit in a concurrence with the denial of stay.
“There is no question that the government screwed up here,” the appellate judge harrumphed, adding hopefully that the government should take the opportunity to correct its error and dispel the appearance that it was advocating “a path of perfect lawlessness.”
“Positing the government’s duty as simply one of facilitation also softens the tension between the judicial and executive branches,” he reasoned. “Further confining the district court’s directive as an opportunity for the government to correct its own admitted error allays the concern that the Judiciary is on the verge of some broad intrusion into what rightly are executive diplomatic powers.”
Perhaps this level of explicit lobbying from the Court’s conservative justices would have done the trick. But instead they upheld the trial judge’s order (“the District Court’s order remains in effect”) while vaguely instructing her to “clarify” it “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Whatever that means.
The government then resumed its posture of open defiance, blithely insisting that the obligation to “facilitate” Abrego Garcia’s return involves no more than cheerfully arresting him if he turns up at a lawful port of entry.
Judge Xinis, who spent twelve years as a federal public defender (so don’t even think about trying it, asshole!) responded that she did not agree, but before addressing the legal issues, the parties could spend two weeks in intensive discovery. (Asshole.) First up, she ordered the four DHS officials who submitted declarations to sit down with lawyers from the ACLU and answer questions under oath.
This prompted a fit of the vapors from Drew Ensign, the deputy AG they send into the meat grinder in immigration cases, who purported to be shocked, shocked that the court would invade attorney-client privilege by forcing the general counsel for the Department of Homeland Security to be deposed.
“You do have to consider what happens with that waiver of privilege when you put him up as an affiant,” Judge Xinis tut-tutted. “But that was your decision.”
Now, ordinarily orders of discovery are not appealable. But the Trump DOJ has appealed everything, including administrative stays, with some success. And so within hours it noticed an appeal to the Fourth Circuit.
While admitting that the amended order directing the government to “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible” conforms exactly to the Supreme Court’s edict, the government insists that Judge Xinis means something different from what the Supreme Court’s conservatives had in mind. Sure, she hasn’t actually told them to do anything yet. But she intends to! And isn’t that what emergency relief is for?
They also request mandamus “to direct the District Court to vacate its capacious discovery order.”
“Depositions of Executive Branch officials are especially unjustifiable,” they howl, adding that “In its zeal to raze every barrier to expeditious and extensive discovery, the District Court did not even let Defendants brief the issue—or offer alternatives.”
They conveniently omit to mention that all four of the named officials submitted sworn declarations in this very case, and that the judge instructed the government to raise issues of privilege “as expeditiously as possible so I can determine whether there is existing privilege on the areas in question because you’ve already put him up as an affiant.”
Probably just a memory lapse by Drew Ensign, who put his name on the appeal less than 24 hours after the hearing in question. Apparently the amnesia is bad — he’s now claiming that declaring Abrego Garcia “a member of a foreign terrorist organization (MS-13)” disappears the 2019 judicial order barring his removal, so he “no longer has any right to withholding of removal.”
The Fourth Circuit gave the plaintiff until 5pm to respond, but then decided not to wait for it. In a blistering denial they called the government’s request “both extraordinary and premature.”
Judge Wilkinson, wrote for the unanimous panel:
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
He also noted that the government’s reference to its own internal DHS definition of the word “facilitate” is not binding on the court since Chevron deference is dead.
Congratulation, Mister Chief Justice! This dumb turkey will be back on your desk in the morning.
Abrego Garcia v. Noem [District Docket via Court Listener]
Abrego Garcia v. Noem [Fourth Circuit Docket via Court Listener]
Noem v. Abrego Garcia [SCOTUS Docket]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
