An Update on Abrego Garcia

There's been a lot going on in the Abrego Garcia case against the government, so here's a brief overview about where it stands.

A while back, Abrego Garcia's lawyers filed a motion for expedited discovery to find out why the Trump administration has failed to act to facilitate the return of Abrego Garcia, and to answer Judge Xinis’ questions about where he is and what steps the government is and will be taking to facilitate his return.

As you may know, on April 10th the Supreme Court ruled 9-0 that Judge Xinis was right to direct the administration to facilitate the release of Abrego Garcia “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.”

Later that same day, Judge Xinis amended her previous order to match what the Supreme Court had decided, and directed the government to facilitate his release and return him to the United States. She further ordered the administration to submit “declaration from an individual with personal knowledge, addressing the following: (1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate Abrego Garcia’s immediate return to the United States; and (3) what additional steps Defendants will take, and when, to facilitate his return.”

The government failed to do so, so on April 12th, lawyers for Abrego Garcia filed a motion for relief asking for three things:

1. The facilitation of Abrego Garcia’s return

2. Expedited discovery to find out why the government defied the court orders

3. An order to show cause - the first step of contempt proceedings - requiring the government to show cause as to why they defied court orders

Judge Xinis held a hearing on April 15th on the Expedited Discovery request. During that hearing, the government again failed to explain why they were outright defying both her order and the Supreme Court order, so she GRANTED the Abrego Garcia request for expedited discovery. In her order, she gave the government until April 21st to answer the first round of questions submitted by Abrego Garcia’s lawyers. She also said she’d hold off on considering the show cause motion until after the discovery so she’d have all she needed to consider contempt proceedings.

April 21st arrived, and the answers the administration sent were woefully inadequate and contained multiple errors. Back in her April 15th order, the judge anticipated the government would suck at this, so she gave instructions on what to do if there were any issues:

To streamline review of any anticipated objections, the Court will file a separate letter order regarding discovery disputes. The parties are to follow the procedures described in the letter for any disputes that cannot be resolved by good faith meet and confer.

So on April 21st after receiving the BS answers from the government, lawyers for Abrego Garcia filed their separate letter addressing their disputes. Judge Xinis responded in a blistering order, demanding the government correct their errors - including their inadequate assertions of FIVE different privileges. One of the privileges doesn’t even exist:

Equally specious, Defendants’ objections on the grounds of privilege are rejected. Defendants invoke in name only a range of protections—attorney-client privilege, the work-product doctrine, the deliberative process privilege, the state secrets privilege, and an undefined “governmental privilege”—without providing any supporting information or analysis.

Government privilege? Like, WTF is that even?

She gave them 24 hours to submit their corrections.

BUT

The next morning, the government filed a status update under seal and ex parte - meaning no one could see it but Judge Xinis. We did learn through a minute order that in the filing, the government was asking for yet another delay - a one-week hold on the expedited discovery process.

Surprisingly, both the judge and the lawyers for Abrego Garcia agreed to the one-week delay. That tells me that this wasn’t a run-of-the-mill request, because there’s no way that Judge Xinis would agree to some frivolous excuse like “we need more time to consider state secrets privilege” or “my daughter has a soccer game” or whatever the hell else the Trump administration might cook up to delay the proceedings.

No, this would probably need to be something more substantial or at least novel in the eyes of the court for the judge AND the lawyers for Abrego Garcia to agree to it.

So what could it be? There are several possibilities, but if I were to guess, I’d say the Trump administration asked for time to facilitate the release of Abrego Garcia. Perhaps not to return him to the US, though. Maybe to send him to another country. That’s what the Trump administration had said it would do if it were going to release Abrego Garcia from CECOT. Back in 2019, a judge issued an order that prohibited Abrego Garcia from being sent back to El Salvador specifically. So perhaps here they’ve agreed to do what the Supreme Court ordered: “to “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.”

That says nothing of returning him to the US; it only requires his case be handled as it would have been had he not been improperly sent to El Salvador. That could include removal to any other country that is NOT El Salvador.

I’m not sure why that would have been filed under seal, though. And it’s just a guess. But we will find out soon.

~AG