A Subpoena for the White House?

On April 16, I wrote to you about a hearing in the Kilmar Abrego Garcia case, which is before U.S. District Judge Paula Xinis in Maryland. At that time, she characterized the steps the government had taken to facilitate his return to the U.S. following the Supreme Court’s direction they must do by saying, “The record reflects defendants have done nothing at all.” As we discussed that evening, she ordered expedited discovery including that “Abrego Garcia’s lawyers can also take depositions of four specified government officials and two players to be named based on what they learn in discovery.”

The case was briefly stayed after both sides asked the court to do that to permit them to have additional conversations. Apparently, whatever progress was in the works didn’t pan out, and on April 30, Judge Xinis entered a new expedited discovery schedule. This morning, Abrego Garcia's lawyers filed a motion asking the Judge to permit them to depose representatives of the Departments of State and Homeland Security and of the Justice Department. And here’s the kicker—they also advised the Judge they might request permission to depose someone in the White House. This request follows on the depositions the court originally authorized. The motion notes that “Three of those four depositions have now taken place, and, as described below, Plaintiffs are still in the dark about the Government’s efforts to facilitate Abrego Garcia’s release from custody and return to the United States.” That statement in the motion is followed by a redacted block.

Almost three full pages of redaction follow. The redacted section appears to be information about Abrego Garcia’s current location and status and any efforts the government has taken to facilitate his release.

The motion concludes with this cryptic footnote: “In fact, as seems apparent from its public statements, this case also involves decision-making at the White House in addition to the three Departments. Accordingly, depending on the testimony obtained in any authorized Department depositions, Plaintiffs may need to seek additional testimony from an appropriately knowledgeable representative of the White House.” Abrego Garcia’s lawyers want to know who in the executive branch is preventing compliance with the Supreme Court’s order. It’s an important question and ultimately, the courts may have to decide whether the government is in contempt.

Abrego Garcia’s lawyer may learn who, presumably in the White House, was responsible for making the call to do, as the court said, “nothing at all” in these additional depositions if the court allows them. Or, they may come up empty-handed if the agency deponents refuse to answer where their orders came from or claim not to know. In either case, it’s likely there will be a request to depose someone in the White House who can answers questions, including who that person is—who has authority to facilitate release but has failed to do so.

Of course, Donald Trump has already publicly stated in an ABC interview that he “could” secure Abrego Garcia’s return.

“You could get him back. There's a phone on this desk,” ABC’s Terry Moran told Trump, pointing at the phone on his desk in the Oval Office.

“I could,” Trump said rather proudly.

“You could pick it up, and with all—” Moran began to say before Trump cut him off.

“I could.”

That’s evidence. Evidence the government could have complied with the Supreme Court’s 9-0 decision ordering it to facilitate return but deliberately refused to. Trump concluded that “if he [Abrego Garcia] were the gentleman that you say he is, I would do that [call and ask for his return],” yet again entirely missing the point that this has nothing to do with Abrego Garcia’s character. It is about his right—and by extension all of our rights—to receive due process before the government takes action against us. That’s what’s at stake here and the stakes are high.

Trump continues to be his own worst enemy. Here, it was predictable. Moran teed up the question so Trump could either appear weak—there was nothing he could do—or acknowledge the truth, that Abrego Garcia is in custody at his request and remains under his control, in the sense that he could request his return or other treatment. Trump took the bait.

As hundreds of men remain in custody in the CECOT terrorism confinement facility, having received no due process, and as the government contemplates “deporting” more to Libya, a move that may come to a head today or later this week, immigration policy continues to be one of the keys to understanding this administration. Despite the electioneering claims, there are no massive deportations of murderers and other violent criminals. Instead, there is a slow but certain effort to undo the Constitution. An effort we cannot tolerate.

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We’re in this together,

Joyce