U.S. District Judge Paula Xinis excoriated Trump administration lawyers Friday in a remarkable status hearing centered on Kilmar Armando Abrego Garcia, the Salvadorian migrant and alleged MS-13 member who was deported from Maryland to El Salvador in March in what administration officials have acknowledged was an administrative error.
The heated back-and-forth was full of eye-popping exchanges between the judge and the Justice Department, as she took umbrage with their attempts to invoke the state secrets privilege to shield details concerning Abrego Garcia from the court.
“What world are we living in,” Xinis asked in disbelief after more than two hours of proceedings. “What sort of legal world are we living in?”
She sparred multiple times with DOJ lawyers over their assertion that Abrego Garcia was lawfully detained and deported.
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“He was lawfully detained? No he wasn’t!” Judge Xinis objected. “There was no order of removal, there was no warrant for removal – there was nothing.”
She cut off Justice Department attorney Jonathan Guynn again when he attempted to continue with a different argument. “You didn’t even respond to what I just said,” she told him. “A DHS attorney came in at the first hearing and confirmed that there was no lawful basis to arrest Abrego Garcia.”
“Why are we skipping over that – as part of the misconduct at issue, in light of the pattern I’m currently faced with on this day?” she asked, in disbelief.
For at least 30 seconds, the courtroom fell completely silent.
The judge said she would issue an order later Friday outlining next steps, after the two sides huddled for a closed portion of the case.
Xinis, who, despite her mounting frustrations, seemed likely to grant the government another deadline extension, described the hours-long hearing as beating a “frustrated and dead horse.”
At one point, she rebuked the Justice Department for trying to invoke the state secrets privilege via a footnote referencing a filing in a separate case before a different court, noting that this would not pass muster in her courtroom.
Most of the public hearing was marked by similar sharp exchanges over whether the Trump administration had taken any steps to comply with court orders to facilitate Abrego Garcia’s return – a point Xinis reiterated was already settled by both her court and the Supreme Court last month.
At another contentious moment, she laughed in apparent disbelief at the lack of evidence and disclosures from the government. “I can’t count the number of ‘I don’t knows’ my wonderful clerks and I have heard,” she said of depositions from Trump administration officials.
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Xinis told the government lawyers they had not presented her with a sufficient affidavit to invoke the state secrets privilege – which the Trump administration has asserted is necessary in this case to protect sensitive diplomatic and foreign policy matters from being made public in court.
Pointing to a prior admission from the Trump administration, Xinis also said Abrego Garcia was removed from the U.S. “without lawful authority.”
“You’ve conceded it. There’s witness testimony,” she said. Any attempt to revise this “would be exceptionally difficult.”
“Respectfully, your honor, he was removed lawfully,” Guynn replied.
“No,” an incredulous Xinis shot back. “He was removed unlawfully.”
“His removal from the U.S. was lawful,” the Justice Department attorney insisted.
“Well no – no it wasn’t,” Xinis said, visibly stunned.
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“Because there’s actually the [Immigration and Naturalization Act], which says that if the United States elects to remove someone to a third country, there’s a process. Congress has set out that process, the executive has to follow that process.,” she said. “So it is not determined yet whether removal to a third country would be appropriate, which is why the Supreme Court ruled the way it did.”
Ultimately, she said, the government will likely have extra time to file additional declarations to allow it to seek the state secrets privilege.
Still, she said she “has to point out” that the unlawful removal of Abrego Garcia from the U.S. “is a foregone conclusion.”
“He was removed in error. He was sent to El Salvador when there was a notice of withholding of removal, and so that was not lawful.”
Plaintiffs noted that the government had labeled 1,140 documents related to Abrego Garcia’s case as privileged – but in contrast, they were sent just 164 documents – 132 of which were photocopies of their own court filings and interrogatories sent back to them.
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“Your Honor, a life is in the balance,” Abrego Garcia’s lawyers said, urging the court to move faster.
Xinis previously criticized the administration for failing to comply with her court’s requests for information in the case – accusing officials in a blistering eight-page order of submitting “vague, evasive and incomplete” responses that she said demonstrated “willful and bad faith refusal to comply with discovery obligations.”
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