Newly Unsealed Documents in Abrego Garcia Reveal the Games DoJ Played in Court

Thanks to a motion from media outlets to unseal documents, we can see what was happening on the Abrego Garcia docket in real time as they quietly investigated Abrego Garcia.

Just two days before Abrego Garcia was returned to the United States after months of the government claiming they couldn’t possibly - Judge Xinis granted (in part) a motion to unseal documents filed by media outlets (Wall Street Journal, ABC, The Associated Press, Bloomberg, CNN, CBS, Fox, NPR, NBC, New York Times, The New Yorker, The New York Post, Reuters, and the Washington Post.)

The documents unsealed were part of the two-week discovery Judge Xinis ordered in April and include:

• April 22: Exhibit A, Exhibit B, and a letter filed jointly by both parties requesting a discovery conference. (Anticipating the government’s failure to participate in discovery in good faith, the judge instructed the parties to request a conference via letter if either party stonewalled the process.)

• April 23: The government’s motion to pause discovery for one week. (The pause was eventually agreed to by lawyers for Abrego Garcia, and discovery was paused, but the unsealed documents show that they were very skeptical of the government’s secret reasons for the delay.)

• April 23: Abrego Garcia’s lawyers’ response to the government’s request for a one-week pause on discovery. (This document is redacted because it includes State Secrets Privileged information. The judge redacted those parts - not because she thinks the government has a viable State Secrets Privilege claim, but because she had not yet ruled on State Secrets.)

• April 29: Another motion from the government to delay discovery (again). This one was denied by the judge.

ABC News reported May 6th that the Department of Justice had been quietly investigating a 2022 traffic stop of Abrego Garcia in Tennessee, and that investigators had been questioning potential co-conspirators in late April. Right around the time the government asked for the discovery delay in court.

The April 23rd government motion to stay discovery proceedings says:

Defendants move for a brief, one-week stay of the Court’s discovery order and the Court’s order requiring daily status reports on Defendants’ facilitation efforts. For the reasons set forth in today’s status report, which was provided to the Court ex parte and under seal, compliance with these orders is likely to interfere with Defendants’ efforts to resolve this litigation.

[The government] is actively engaged in efforts that extend beyond mere facilitation. Defendants seek relief from orders that will distract from and undermine those efforts and further avoid the potential need to seek emergency relief to protect the Government’s privileges from waiver.

Here, the government contends that they’re working on a solution, so they can’t possibly waste time answering Abrego Garcia’s lawyers’ discovery requests or comply with the court-ordered status reports detailing what they’re doing to facilitate his return. They also hint at the fact that they’re doing something beyond simply returning him to the United States.

They go on to say:

Defendants provide notice that earlier this morning Defendants submitted a declaration to the Court ex parte and under seal. For the reasons set forth in today’s declaration, as well as prior in camera testimony, Defendants submit that a further stay of the proceedings is warranted. Continuing with discovery at this juncture is likely to interfere with Defendants’ efforts to resolve this litigation. Defendants conferred with Plaintiffs’ counsel regarding this request. Plaintiffs do not oppose a stay of up to seven days, provided that the Court believes that the government is continuing to pursue those compliance efforts in good faith.

In other words, the government’s reasons for needing the one-week pause were submitted only to the judge and under seal, and Abrego Garcia’s lawyers have to rely on the judge’s discretion here because they’re in the dark as to why the government needs a week-long pause on the discovery proceedings.

Abrego Garcia’s lawyers responded to the government’s motion for a stay saying:

Following entry of this Court’s order yesterday (ECF 100), counsel for the Government reached out for the first time to request a one-week stay of discovery. Plaintiffs’ counsel immediately asked to meet and confer, convened two, late-evening video meetings and had multiple email exchanges last night to understand and discuss the Government’s request. While the Government referenced the ex parte status update it filed at 5:00 p.m. yesterday (ECF 99), it was unwilling to provide any information regarding that submission or the nature of any purported “diplomatic efforts.” Plaintiffs’ position is straightforward. If there is a genuine effort to obtain the release and return of Mr. Abrego Garcia, we have that goal in common and are eager to cooperate with the Government to achieve it. But without knowing more, it is impossible for Plaintiffs to evaluate whether the Government’s efforts are genuine and we encouraged the Government to share whatever it could. Absent evidence of good faith efforts, Plaintiffs must move forward under the current schedule as every day Mr. Abrego Garcia remains wrongfully incarcerated in a foreign prison is another day he suffers irreparable harm.

Nevertheless, Plaintiffs agreed to postpone the two depositions scheduled for today until Friday in an effort to accommodate what it understood was the Government's most pressing Concern: [REDACTED]

As we explained to the Government in our meet-and-confer, we do not understand why the production of documents or interrogatory responses-none of which has occurred in the public eye-has any bearing on efforts to facilitate Mr. Abrego Garcia's release and return. Accordingly, those should proceed in compliance with the Court's order.

Plaintiffs also inquired as to whether there is any particular significance to the one week delay the Government requests, as opposed to a shorter time period, and the Government offered none. All things considered, Plaintiffs' proposal to delay today's depositions until Friday takes the Government's counsel at their word and offers a tailored solution designed to maintain the current Court schedule while giving the Government [REDACTED].

We have the utmost faith and confidence in the Court to assess the Government's representations and will abide by whatever schedule the Court deems appropriate in order to maximize the chances of a successful return of Mr. Abrego Garcia, so that he may have his day in court.

What we don’t know is whether the lawyers for Abrego Garcia knew the DoJ was investigating their client and was planning to return him to face criminal charges, or whether they kept that information from them but told the judge ex parte, or whether they didn’t mention it at all. I imagine that since he’s been returned, we may get to see what’s under the redaction bars or what was filed ex parte (with the judge only.)

But these newly unsealed documents show the government attempted to delay discovery because they were planning to indict and return Abrego Garcia. But failing to follow court orders doesn’t go away just because the case does. You’ll recall that Boasberg filed a notice of criminal contempt proceedings despite having both his orders vacated by the Supreme Court. Just because court orders become moot does not alleviate someone’s requirement to follow them, and the government clearly violated Judge Xinis’ discovery orders.

Abrego Garcia’s lawyers have asked the Judge for permission to file a sanctions motion, and the Judge has granted it. Further, after the government filed their snarky motion to stay all proceedings because they “facilitated” his return, lawyers for Abrego Garcia have filed their letter regarding the government’s deficient privilege log, and asked Judge Xinis to consider the crime fraud exception to certain privileges given the government violated the court’s orders.

The government responded, saying that the privilege discussion is an exercise in futility because Abrego Garcia is back and all of this is moot:

Earlier today, Defendants filed their Notice of Compliance with Preliminary Injunction and Request for a Stay of All Case Deadlines, informing the Court that Abrego Garcia has been returned to the United States, thereby achieving full compliance with the preliminary injunction. Because Defendants have now complied with the Court’s preliminary injunction to facilitate Abrego Garcia’s return, there is no longer a need for the Court to evaluate discovery issues relating to past and future efforts to facilitate his return. Accordingly, the Court should decline to consider the matter further.

But the government implicitly admits that this might not be over yet by answering the privilege issues (insufficiently, mind you) and giving the court its wish-list for what to do in case she rules in favor of Abrego Garcia on discovery:

…if this Court ultimately overrules any of Defendants’ privilege assertions, this Court should either grant a stay pending appeal and/or mandamus, or at least delay the effective date of its order for at least 14 days, so that Defendants can determine whether to seek appellate review in an orderly manner.

Personally, I do not think that the discovery just goes away because the government indicted Abrego Garcia and returned him to the United States. The discovery was ordered to determine whether the government defied the court’s orders to explain what they were doing to facilitate his return - not to return him. I don’t think the government’s actions excuse past non-compliance with court orders.

As Judge Boasberg pointed out in his memorandum for criminal contempt in the JGG case:

One might nonetheless ask how this inquiry into compliance is able to proceed at all given that the Supreme Court vacated the TRO after the events in question. That Court’s later determination that the TRO suffered from a legal defect, however, does not excuse the Government’s violation. Instead, it is a foundational legal precept that every judicial order “must be obeyed” — no matter how “erroneous” it “may be” — until a court reverses it. Walker v. City of Birmingham. If a party chooses to disobey the order — rather than wait for it to be reversed through the judicial process — such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order.

The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it. To permit such officials to freely “annul the judgments of the courts of the United States” would not just “destroy the rights acquired under those judgments”; it would make “a solemn mockery” of “the constitution itself.”

However, In a single-page order days later, a three-judge panel of the U.S. Court of Appeals for the District of Columbia said that it was entering what is known as an administrative stay to give itself more time to consider the validity of Boasberg’s contempt proposal.

I’ll write up a different post on my thoughts about the trumped-up charges that have been filed against Abrego Garcia in what I consider an attempt to circumvent potentially embarrassing discovery that could include having to disclose the agreement between Bukele and the US Government.

As always, Andy McCabe and I will give you all the details on the always free UnJustified podcast. A new episode is out tomorrow.

~AG

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