A few things are not in issue, no matter what some claim. It may be that Kilmar Armando Abrego Garcia is a member of the notorious gang MS-13, but nothing has yet been proven to support the accusation. It may well be that Abrego Garcia should be deported, but his being snatched and renditioned to El Salvador while subject to an order prohibiting his removal was unlawful. These two things are indisputable.
The third thing that’s not in issue is that the government’s lead immigration prosecutor, Erez Reuveni, has a duty of candor to District Judge Paula Xinis. Trump criminal defense lawyer turned Deputy Attorney General Todd Blanche knows this. He just didn’t care.
Deputy Attorney General Todd Blanche suspended Erez Reuveni, the acting deputy director of the department’s immigration litigation division, for failing to “follow a directive from your superiors,” according to a letter sent to Mr. Reuveni and obtained by The New York Times.
What did Reuveni do wrong? He told a frustrated Judge Xinis the truth, taking Justice Robert Jackson’s view of the federal prosecutor’s duty rather than Roy Cohn’s and Pam Bondi’s.
“I am also frustrated that I have no answer for you on a lot of these questions,” said Erez Reuveni, an assistant director in the Justice Department’s Office of Immigration Litigation. “The government made a choice here to produce no evidence.”
Judge Xinis, holding that the rendition was unlawful, ordered the government to return Abrego Garcia to the United States. Reuveni argued the government’s position in response, that the court had no jurisdiction over Abrego Garcia and the government could not carry out the order as he was in the custody of El Salvador.
Reuveni did argue that Xinis lacks jurisdiction over the case because it should be pursued in an immigration court, and he asserted that evidence of U.S. control over the inmates at the Salvadoran jail was weak.
This, however, was not good enough in Trump’s justice department.
Less than 24 hours later, Mr. Blanche, President Trump’s former criminal defense lawyer, accused Mr. Reuveni of “engaging in conduct prejudicial to your client.” Mr. Blanche suspended Mr. Reuveni with pay, cut off access to his work email and blocked him from performing any duties related to his job.
The correct position was stated by the White House press secretary and noted legal scholar, Karoline Leavitt.
Press secretary Karoline Leavitt said in response to Xinis’ ruling that the judge should “contact” the Salvadoran president “ because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.”
That position was further argued by presidential advisor Stephen Miller.
Judge Xinis, who is not known to be a Marxist, was not unaware of the government’s position that, after having unlawfully renditioned Abrego Garcia to a foreign prison, disclaimed the ability to undo its unlawful conduct and comply with the order of a court that has undeniable jurisdiction over the United States government.
Abrego Garcia’s lawyer pointed to statements by Secretary of State Marco Rubio that the U.S. agreed to pay $6 million to the central American country to hold a batch of prisoners for a year.
Xinis said, in the absence of contrary evidence from the U.S., there appeared to be a deal to hold the men, and that likely gave the U.S. significant control.
“You have an agreement with this facility where you’re paying the money to perform a certain service,” the judge said. “It stands to reason that you can go to the payee and say, ‘We want the person back.’”
Was the order to return Abrego Garcia impossible to perform? Despite Leavitt’s and Miller’s deeply considered reasoning, no evidence had been proffered to the court that El Salvador was either acting as the agent of the United States in holding him or that El Salvador would refuse to hand him over to the government upon request.
At another point, Reuveni said he’d asked why the U.S. couldn’t seek Abrego Garcia’s return and was rebuffed.
“When this case landed on my desk, I asked my clients that very question. I have not received to date an answer that I find satisfactory,” he said.
An honest answer, and for the unwary, a fairly common response when one doesn’t have an actual answer to provide, which was intolerable to Blanche and Bondi.
“At my direction, every Department of Justice attorney is required to zealously advocate on behalf of the United States,” Attorney General Pam Bondi wrote in a statement sent to The Times on Saturday. “Any attorney who fails to abide by this direction will face consequences.”
In the unlikely event that the United States government has made some sort of deal with the Salvadorean government where it paid $6 million but has no say over what becomes of the rendered folk, a question arises whether there is anything the judge can do to address the “black site” problem, and then another question as to whether the executive branch of the government will abide a court order to do something.
But at this point, the court has ordered the return of Abrego Garcia not because she has control over El Salvador, but because the government has not, and almost certainly cannot, prove that it is incapable of returning him to the United States if it wants to. Rather, it just doesn’t want to, and is daring Judge Xinis to do something about it.
The case is back before the court on Monday, and there will be a different prosecutor appearing on behalf of the government. This time, the lawyer will be well aware that he or she won’t be a government lawyer for long if they fulfill their duty of candor to the court. Whether the lawyer will have anything better to say than Erez Reuveni is unlikely, meaning that the lawyer, whoever he or she may be, will be the “zealous advocate” Blanche and Bondi demand.
I was under the impression that our government had the authority to impose big beautiful tariffs on any country in order to convince that country to do what our government wants.
But, seriously, is that something, in principle, a judge could order the government to do?
Scott,
Duty owed. Yes we all owe duties to the name: US Constitution. The names Todd, Pam, sign the checks and think that trumps the US Constitution. Judge Xinis, would like a word.
Summon the AG and deputy AG to the courtroom, require a full disclosure of the terms of the transfer, and if they continue with the emperor’s new clothes pantomime, jail them for contempt until they purge it with the answers. That would light a fire. Or am I dreaming?
I think they would defy such an order to appear in person. After all, they are very busy. More to the point, it looks like the design of these tactics is to set up confrontations with the court. I believe Trump is under the impression that he and his minions can do whatever they want, and once they manage the case into the appellate system, and to the Supreme Court, they will “win.” While this may seem too simplistically stupid to actually be the administration’s strategy, one must keep in mind who we are dealing with.
Last week Blanche spoke at a Brooklyn Law School program focused on a recently published book by EDNY Judge Frederic Block. The book is about the federal First Step Act and allowing “Second Chance” release to inmates serving long prison terms. Both the author and Blanche spoke warmly in favor of the concept. It would appear, however, that Blanche has quickly forgotten what he said, and does not find even a fair first chance necessary in cases in which individuals convicted of nothing have been snatched and deported to foreign prisons.
They just need to find a less analytical prosecutor, who will find whatever answer has been proferred from above to be “satisfactory.” Then, said replacement can preface the introduction of that answer with words such as, “I understand that the answer is. . .” Because it’s the only one the court will be getting, but the prosecutor of course can’t be expected to “vouch for” the client.
Why did they even send a prosecutor to handle this? It’s not a prosecution. It’s defending the government from an injunction. The DOJ should have sent one of its civil attorneys, preferably someone who aspires to be an actor.
Former AUSA here, with a raised eyebrow at Reuveni’s hubris. Yes, the duty of candor is critical, but injecting a personal opinion that effectively throws the client under the bus is crossing the line. Telling the judge that “I am also frustrated that I have no answer for you on a lot of these questions,” and “[t]he government made a choice here to produce no evidence,” and even more objectionable, “[w]hen this case landed on my desk, I asked my clients that very question. I have not received to date an answer that I find satisfactory” all needlessly contradicted the government’s position. The government’s position was weak enough. Reuveni could have presented the US position while still acknowledging the lack of answers or evidence but without injecting his personal opinion, then taken the heat from a justifiably dissatisfied judge (we’ve all been there), and let the judge decide on the evidence and the law. Take him to the woodshed behind a closed door for his transgression, but this suspension is both draconian and chilling. This is not the DOJ I knew, and I fear it will get worse.
I will say it’s interesting how Paula Xinis is suddenly interested in fairness and due process, given that (as you’ve written here) she has a track record a mile long of deciding that college students accused of misconduct are not deserving of either. Not sure why there’s such a massive disconnect.
Using the benefit of Judge Xinis’ Order that was entered today, retaining jurisdiction and denying the gov’t’s motion for a preliminary injunction, what the gov’t did to Abrego-Garcia is much worse. Just six years ago, an Immigration Judge granted him protection from being sent back to his native El Salvador. On top of the flagrant due process violations, Abrego-Garcia had won his case in immigration court. 8 U.S.C. 1231(b)(3)(A) barred the government from sending him there.
A 30 second check by calling immigration’s automated 800 number, available to anyone, would’ve confirmed if and when he had won his immigration case. If ICE knew that an immigration judge had barred his deportation and given him protection from removal to that country, and still put him on that plane, well…
Hope that lawyer brings a toothbrush.
Maybe the government will send someone from Paul, Weiss.
It’s going to be up to Courts to require DOJ attorneys to comply with their ethical obligations to the court by professionally sanctioning attorneys who make materially false representations of fact and evidence to the Court or who make legally frivolous arguments that cannot be made in good faith. Just because the Trump Administration wants DOJ attorneys to lie or misrepresent on its behalf, the Courts must enforce the duties of candor any attorney appearing before them owes them.
This is the thing I wonder about. Will the ultimate check on this admin come from simply running out of attorneys to represent the government because they all either quit or were sanctioned?