An Angry Judge in the Abrego Garcia Case

Has the federal judiciary reached critical mass?

It’s been yet another day of fast legal action, with Judge Hernán Vera in Los Angeles ordering the Los Angeles Police Department to stop assaulting, detaining, and using nonlethal ammunition against journalists who are covering protests. He also ordered LAPD to stop limiting journalists’ movements absent conditions that absolutely require it. Also in the Central District of California, Judge Maame Ewusi-Mensah Frimpong, in an order that applies only in that district, has granted a temporary restraining order directing DHS/ICE to stop making arrests in violation of the 4th Amendment, using appearance, accent, and type of work to arrest people, because none of those considerations amount to probable cause. She’s also ordered that people who have been detained are entitled to access to legal counsel and access to confidential phone calls at no cost with their counsel—none of which should even be an issue. In Massachusetts, Judge Indira Talwani entered an amended temporary restraining order that prevents the Trump administration from enforcing a measure that would defund Planned Parenthood until at least July 21 because it would severely disrupt patient care. In other words, like most of them, it was another very bad day in court for the Trump administration.

Then there was the hearing in the civil Abrego Garcia case in Maryland that we’ve been discussing all week. Yesterday, Judge Paula Xinis heard testimony from a witness she had directed the government to present, and it turned out that the testimony failed to answer some of the very basic questions she has about the case. Questions like, what do you plan to do with Mr. Abrego Garcia if he’s released, and in what country, other than El Salvador, where the government is currently prohibited from sending him, might you dump him? The government is taking a ridiculous posture, saying that unless and until he’s released from criminal custody in the Tennessee case, they aren’t making any plans at all—they just have some vague ideas about the possibilities.

Given that this is the same government we now know from the Erez Reuveni whistleblower case doesn’t feel compelled to comply with courts that rule against Donald Trump’s desired course of action, it’s easy to understand why the Judge was skeptical of the government, telling their lawyers she could no longer presume they were acting in good faith at one point. The presumption of regularity entitles the government to an assumption by the court that its actions are valid and in accordance with the law, placing a burden on any party challenging it to prove otherwise. “You have taken the presumption of regularity and you’ve destroyed it in my view,” Judge Xinis said.

Abrego Garcia’s lawyers asked the Judge to return him to Baltimore and to require ICE to give at least 72 or 48 hours of notice of intention before removing him to any country, whatever it would take for him to have sufficient opportunity to have effective assistance of counsel before he was shipped off to a third country and exposed to the risk of torture. Judge Xinis said she would make her decision and enter an order as quickly as possible, cognizant that the clock is ticking in the Tennessee proceeding as well.

The government acted like everything was business as usual and this was just an ordinary case. But this Judge understands that it is not. Abrego Garcia’s lawyers made such a modest request, functional due process, just a couple of days’ notice before their client is dropped in a hellhole like South Sudan.

The government’s lawyer put his foot in his mouth the minute he started and never seemed to get it out. For starters, the Judge had asked yesterday for basic paperwork, the detainer that ICE was using to hold Abrego Garcia. But it took them until midway through the hearing to provide it to her. That’s an inexcusable failure on the government’s part that fairly shouts disrespect to the court. The detainer is a document ICE generates itself. But the real cloud hanging over the government’s head is the released whistleblower documents that reveal high ranking DOJ officials were prepared to ignore, if not violate, court orders if necessary to do the president’s bidding. That’s the problem for the government now. Once the materials documenting the whistleblower’s allegations leak, every federal judge in the country, at least the district judges, is prepared to find ways to bring the government to heel. It’s a full-frontal attack on the authority of the courts, out in the open now.

The government told Judge Xinis they can either deport Abrego Garcia to a third country of their choice or reopen withholding proceedings. The threat there seems to be that they would get an immigration judge to revoke the 2019 order that forbids his return to his native El Salvador, where a judge originally found he was at risk because of violent harassment from a gang that had a long-standing issue with his family over its business. In fact, that was the reason he came to the United States in the first place. Since immigration judges work for the executive branch (unlike independent Article 3 federal judges), it’s pretty easy to believe that the administration could find an immigration judge who would issue an order signing off on sending Abrego Garcia back to El Salvador, and there is only a limited right of appeal from such an order. But the government wouldn’t commit to either option or even hint at its thinking.

The Judge was righteously indignant that the government wouldn’t say what it wants to do, maintaining the fiction that some randomly assigned desk officer will decide what happens on the fly if Abrego Garcia is returned to their custody, just like they would in any normal case. It’s ridiculous. The government is saying “f*** you” to the courts over and over again, and the courts seem to be getting the message.

By now, anyone who is paying attention understands that all people in the United States, not just citizens, are entitled to due process, even if it’s just a limited dose of it. It would be easy for the government to provide it. Their steadfast refusal, leading to this entire series of confrontations with the courts, suggests that their objective here is to be so hateful and expose people to so much danger that migrants will deport themselves and stop coming to the United States because the risk of having horrors inflicted on them, bring dropped into a dangerous country where they don’t speak the language, or being sent to CECOT prison is too great. It’s the stepped-up version of then-Attorney General Jeff Sessions saying, “We need to take away children,” in order to deter illegal immigration during a meeting with a U.S. Attorney who expressed concern about the family separation policy back at the start of the first Trump administration. Now that feels quaint.

Where does the line between enforcing U.S. law and utter inhumanity lie? We don’t need to carefully parse its precise placement in order to understand that what this administration is doing has crossed it, is utterly reprehensible, and will be condemned by history, just as other governments that rounded up people and persecuted them are.

Today in California, during an ICE raid at a farm where marijuana was being grown, a man was seriously injured by a fall from a multistory building. He has now died from his injuries. Enforcing the law is one thing. But this is not that. This is not justice. This is not fairness. This is un-American. For now, the best thing we can do is raise our voices and say unequivocally that we do not support this, that the Trump administration is not acting for us when it behaves like this. Some people will be able to protest in proximity to the raids. Others will do it with friends and neighbors in their own communities.

Edmund Burke, the 18th century political philosopher, is frequently attributed with saying, “The only thing necessary for the triumph of evil is for good men to do nothing.” Whether it was said by him or by someone else, it is true. It applies to our situation today. Make sure you do something, even if it's something that feels small, like calling your elected officials—federal, state, and local—and demanding that they take account of your views. Nothing that we can do is small in the face of the human tragedy currently unfolding in our country. Don’t look away.

We’re in this together,

Joyce

Thanks for being here at Civil Discourse. I try to bring the expertise and insight I was fortunate enough to obtain during 25 years at the Justice Department to bear in analyzing court proceedings, decisions, and the government’s behavior. It’s the best way I know to make what we are living through comprehensible, so we can resist. Your paid subscriptions help me devote the time and resources necessary to produce the newsletter. I appreciate everyone who has made the commitment to stay informed and do their part to save the Republic.