Reading
the
latest
batcrap
Justice
Department
filing
in
the
Kilmar
Abrego
Garcia
case
is
an
exercise
in
confusion.
Are
they
letting
ChatGPT
draft
now?
Are
they
really
this
ignorant
about
the
Federal
Rules
of
Appellate
Procedure?
Are
they
assuming
that
the
Supreme
Court
will
bail
them
out
in
any
event,
so
they
just
barf
out
nonsense
and
head
to
the
bar?
Okay,
that
last
one
is
unfair.
There
are
only
five
lawyers
at
the
Justice
Department
willing
to
put
their
names
on
anything
at
this
point,
and
they’re
all
working
real
hard.
But
seriously
…
what
even
is
this
shit?
The
case
involves
the
Maryland
man
wrongly
deported
to
Nayib
Bukele’s
gulag,
despite
a
2019
order
from
an
immigration
judge
withholding
removal
because
the
Salvadoran
native
faced
grave
danger
from
gangs.
Judge
Paula
Xinis
first
ordered
the
government
to
effectuate
Abrego
Garcia’s
return
by
April
7,
but
then
the
Supreme
Court
bigfooted
in
and
saved
the
Trump
administration
from
blowing
off
a
trial
judge’s
deadline.
The
Court’s
conservatives
seemed
to
be
leaning
toward
the
position
articulated
by
Judge
J.
Harvie
Wilkinson
III
at
the
Fourth
Circuit
in
a
concurrence
with
the
denial
of
stay.
“There
is
no
question
that
the
government
screwed
up
here,”
the
appellate
judge
harrumphed,
adding
hopefully
that
the
government
should
take
the
opportunity
to
correct
its
error
and
dispel
the
appearance
that
it
was
advocating
“a
path
of
perfect
lawlessness.”
“Positing
the
government’s
duty
as
simply
one
of
facilitation
also
softens
the
tension
between
the
judicial
and
executive
branches,”
he
reasoned.
“Further
confining
the
district
court’s
directive
as
an
opportunity
for
the
government
to
correct
its
own
admitted
error
allays
the
concern
that
the
Judiciary
is
on
the
verge
of
some
broad
intrusion
into
what
rightly
are
executive
diplomatic
powers.”
Perhaps
this
level
of
explicit
lobbying
from
the
Court’s
conservative
justices
would
have
done
the
trick.
But
instead
they
upheld
the
trial
judge’s
order
(“the
District
Court’s
order
remains
in
effect”)
while
vaguely
instructing
her
to
“clarify”
it
“with
due
regard
for
the
deference
owed
to
the
Executive
Branch
in
the
conduct
of
foreign
affairs.”
Whatever
that
means.
The
government
then
resumed
its
posture
of
open
defiance,
blithely
insisting
that
the
obligation
to
“facilitate”
Abrego
Garcia’s
return
involves
no
more
than
cheerfully
arresting
him
if
he
turns
up
at
a
lawful
port
of
entry.
Judge
Xinis,
who
spent
twelve
years
as
a
federal
public
defender
(so
don’t
even
think
about
trying
it,
asshole!)
responded
that
she
did
not
agree,
but
before
addressing
the
legal
issues,
the
parties
could
spend
two
weeks
in
intensive
discovery.
(Asshole.)
First
up,
she
ordered
the
four
DHS
officials
who
submitted
declarations
to
sit
down
with
lawyers
from
the
ACLU
and
answer
questions
under
oath.
This
prompted
a
fit
of
the
vapors
from
Drew
Ensign,
the
deputy
AG
they
send
into
the
meat
grinder
in
immigration
cases,
who
purported
to
be
shocked,
shocked
that
the
court
would
invade
attorney-client
privilege
by
forcing
the
general
counsel
for
the
Department
of
Homeland
Security
to
be
deposed.
“You
do
have
to
consider
what
happens
with
that
waiver
of
privilege
when
you
put
him
up
as
an
affiant,”
Judge
Xinis
tut-tutted.
“But
that
was
your
decision.”
Now,
ordinarily
orders
of
discovery
are
not
appealable.
But
the
Trump
DOJ
has
appealed
everything,
including
administrative
stays,
with
some
success.
And
so
within
hours
it
noticed
an
appeal
to
the
Fourth
Circuit.
While
admitting
that
the
amended
order
directing
the
government
to
“take
all
available
steps
to
facilitate
the
return
of
Abrego
Garcia
to
the
United
States
as
soon
as
possible”
conforms
exactly
to
the
Supreme
Court’s
edict,
the
government
insists
that
Judge
Xinis
means
something
different
from
what
the
Supreme
Court’s
conservatives
had
in
mind.
Sure,
she
hasn’t
actually
told
them
to
do
anything
yet.
But
she
intends
to!
And
isn’t
that
what
emergency
relief
is
for?
They
also
request
mandamus
“to
direct
the
District
Court
to
vacate
its
capacious
discovery
order.”
“Depositions
of
Executive
Branch
officials
are
especially
unjustifiable,”
they
howl,
adding
that
“In
its
zeal
to
raze
every
barrier
to
expeditious
and
extensive
discovery,
the
District
Court
did
not
even
let
Defendants
brief
the
issue—or
offer
alternatives.”
They
conveniently
omit
to
mention
that
all
four
of
the
named
officials
submitted
sworn
declarations
in
this
very
case,
and
that
the
judge
instructed
the
government
to
raise
issues
of
privilege
“as
expeditiously
as
possible
so
I
can
determine
whether
there
is
existing
privilege
on
the
areas
in
question
because
you’ve
already
put
him
up
as
an
affiant.”
Probably
just
a
memory
lapse
by
Drew
Ensign,
who
put
his
name
on
the
appeal
less
than
24
hours
after
the
hearing
in
question.
Apparently
the
amnesia
is
bad
—
he’s
now
claiming
that
declaring
Abrego
Garcia
“a
member
of
a
foreign
terrorist
organization
(MS-13)”
disappears
the
2019
judicial
order
barring
his
removal,
so
he
“no
longer
has
any
right
to
withholding
of
removal.”
The
Fourth
Circuit
gave
the
plaintiff
until
5pm
to
respond,
but
then
decided
not
to
wait
for
it.
In
a
blistering
denial
they
called
the
government’s
request
“both
extraordinary
and
premature.”
Judge
Wilkinson,
wrote
for
the
unanimous
panel:
It
is
difficult
in
some
cases
to
get
to
the
very
heart
of
the
matter.
But
in
this
case,
it
is
not
hard
at
all.
The
government
is
asserting
a
right
to
stash
away
residents
of
this
country
in
foreign
prisons
without
the
semblance
of
due
process
that
is
the
foundation
of
our
constitutional
order.
Further,
it
claims
in
essence
that
because
it
has
rid
itself
of
custody
that
there
is
nothing
that
can
be
done.
This
should
be
shocking
not
only
to
judges,
but
to
the
intuitive
sense
of
liberty
that
Americans
far
removed
from
courthouses
still
hold
dear.
He
also
noted
that
the
government’s
reference
to
its
own
internal
DHS
definition
of
the
word
“facilitate”
is
not
binding
on
the
court
since
Chevron
deference
is
dead.
Congratulation,
Mister
Chief
Justice!
This
dumb
turkey
will
be
back
on
your
desk
in
the
morning.
Abrego
Garcia
v.
Noem [District
Docket
via
Court
Listener]
Abrego
Garcia
v.
Noem
[Fourth
Circuit
Docket
via
Court
Listener]
Noem
v.
Abrego
Garcia [SCOTUS
Docket]
Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.