The Abrego Garcia deportation case is not about high constitutional principles, it’s about the illegal effects of a bilateral custody agreement.

I was going to let this go for a bit, on the theory that enough is enough. But with the Trump White House shifting from obfuscation to outright misrepresentation of the Supreme Court’s ruling, it’s regrettably necessary to proceed.

On Monday, we posted my column about what the Abrego Garcia dispute is really about: a simple, if unusual, agreement between two sovereigns — the Trump administration and the Salvadoran government — regarding custody of prisoners. In the column, I said I’d separately address what the dispute is not about. Contrary to the Trump DOJ administration’s pretensions, at issue is neither the Constitution’s separation of powers principles nor how far the judicial branch may legitimately intrude on the president’s power to conduct foreign relations.

I won’t belabor the details of the controversy involving Kilmar Armando Abrego Garcia, the Salvadoran national the Trump administration illegally repatriated to El Salvador and has housed in its notorious mega-prison for terrorists. That ground is covered in the column cited above (which links to other posts on the matter). Here, I intend to explain why the Trump DOJ’s reliance on semantics and constitutional abstractions to stonewall Judge Paula Xinis, the presiding judge, is a disingenuous distraction.

At a conference on Friday in Maryland federal court, consistent with the Supreme Court’s ruling the previous evening, Judge Xinis directed the Justice Department to address the following matters:

(1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants [i.e., administration officials] 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.

In a short order issued Friday afternoon, Judge Xinis reported that the Trump Justice Department’s lawyer, Drew Ensign, had refused to answer her questions and had suggested that administration officials — including at the Department of Homeland Security, which handles immigration enforcement — had withheld information from Ensign precisely so he’d be unable to answer her questions.

Justice Department veterans will be startled to find that Ensign has been motivated by Main Justice to treat the judge contemptuously: Attorney General Pamela Bondi has made a habit of demeaning federal judges in her stunningly regular appearances on primetime political opinion programming; and Bondi, along with Deputy Attorney General Todd Blanche, suspended the last government attorney on the case, Erez Reuveni, after he answered Judge Xinis’s questions and conceded that it had been illegal to send Abrego Garcia to El Salvador. Reuveni was not spared from departmental discipline even though he had recently been promoted for supporting the administration’s immigration enforcement agenda, and had dutifully argued the Trump DOJ’s untenable positions that Xinis was bereft of jurisdiction (because Abrego Garcia is now in another country) and was interfering in President Trump’s conduct foreign policy.

The administration is trying to slow-walk the matter of returning Abrego Garcia to the U.S., risibly contending that the DOJ is still studying the Supreme Court’s decision (all of four pages long — including the few lines in a single paragraph that spell out the Court’s directives). Consequently, after the Supreme Court ruled last Thursday evening, the DOJ initially asked Xinis to postpone any hearings until this week. By contrast, Xinis is apoplectic at the administration’s refusal to cure its dereliction and has demanded daily updates about steps the government has taken to bring Abrego Garcia back.

Finally, on Saturday, the Justice Department provided the court with a terse update — a declaration from State Department official Michael G. Kozak, who states:

It is my understanding based on official reporting from our Embassy in San Salvador that Abrego Garcia is currently being held in the Terrorism Confinement Center in El Salvador. He is alive and secure in the facility. He is detained pursuant to the sovereign, domestic authority of El Salvador.

In submitting the Kozak declaration, and nothing else, the Trump DOJ defied Xinis’s order (which itself is based on the Supreme Court’s order — we’ll come to that momentarily). To begin with, Kozak did not address what steps the United States government has taken, and intends to take, to secure Abrego Garcia’s return. Moreover, while Kozak did report on Abrego Garcia’s location, his purported disclosure about the prisoner’s status was gibberish.

That El Salvador, a sovereign country with a government, operates a domestic detention facility is common knowledge and not in dispute. The question (as I explained in the column) is why is Abrego Garcia still in that Salvadoran facility? That is, under what bilateral arrangements or other legal basis (such as, perhaps, Salvadoran charges) is Abrego Garcia imprisoned at CECOT? (As I related in another post on Monday about remarks by El Salvador’s president, there is currently no reason to believe that country’s government has charged Abrego Garcia with a crime. I’d note that the 29-year-old has apparently not been in El Salvador for 13 years.)

Patently, what Xinis was asking, in inquiring about Abrego Garcia’s “custodial status,” is why he is imprisoned in the one country to which the U.S. government was not permitted to send him. The administration isn’t answering that question. In fact, we don’t even know if Kozak asked for that information: He says he got input from the State Department’s Salvadoran embassy; that doesn’t tell the judge what, if anything, the Department of Homeland Security, State Department headquarters, and the Justice Department are doing to comply with order to facilitate Abrego Garcia’s return.

There is no doubt that the Supreme Court has endorsed Judge’s Xinis’s order. As the justices unambiguously concluded, that “order properly requires the Government 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.”

But now we come to the game the administration is playing. In the crux of its unanimous ruling, after pointing out that Xinis (“the District Court”) had correctly ordered to government to “facilitate” Abrego Garcia’s release from custody in El Salvador, the justices stated:

The intended scope of the term “effectuate” in the District Court’s order is . . . unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

As I noted in Monday’s column, the Justice Department tendentiously claims that, before it must do what the Court has ordered — namely, “be prepared to share what it can concerning the steps it has taken and the prospect of further steps” — Judge Xinis must clarify what she meant by “effectuate.” To the contrary, the Court’s order does not make the administration’s duty to provide information — regarding its efforts (or lack thereof) to cure its own illegal conduct — contingent on Xinis’s redefining of the word “effectuate.” The Court called for the government to comply, period.

Plus, there is actually no need to clarify the meaning of “effectuate.”

As a practical matter, the word effectuate is out of the equation. As I detailed last week, while Xinis invoked both facilitate and effectuate in her order, the majority of the Court borrowed its distinction between the two words from Judge J. Harvie Wilkinson’s opinion in the Fourth Circuit. (The Circuit also unanimously upheld Xinis’s order.) Judge Wilkinson, a Reagan appointee deservedly esteemed by conservatives, explained that the word facilitate should be deemed to supplant the word effectuate in Judge Xinis’s ruling. The point was to erase the word, not ask Judge Xinis to reinterpret it.

Under separation of powers between the judicial and executive branches, a judge has authority to require that the executive take steps to cure its unlawful conduct, which has deprived Abrego Garcia — a claimant properly before the court — of a federal law right he had not to be repatriated to El Salvador. It is the judiciary’s constitutional duty to say what the law is and vindicate individual rights.

Yet, also under separation-of-powers principles, the courts lack authority to order a foreign government to take action, or to order the U.S. government to engage in diplomacy with that foreign government. Still, this does not give the executive absolute insulation from judicial review. Judge Wilkinson was clear that the judiciary cannot “condone” a president’s sleight of hand, first, invoking his foreign relations power to transport a person to a foreign country’s prison and, then, claiming no one can do anything about it because the foreign country is outside American jurisdiction.

To resolve this tension, Wilkinson reasoned that Xinis should direct the government to do what it can to facilitate Abrego Garcia’s release by El Salvador and return him to the U.S., rather than presumptuously direct the government to force El Salvador to release Abrego Garcia (i.e., effectuate his return). When the Supreme Court said Judge Xinis “should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” it was clearly saying that Xinis should simply adopt Judge Wilkinson’s modification of substituting facilitate for effectuate. Why this should have been necessary is mystifying since (a) the Court could simply and expressly have adopted Wilkinson’s formula, and (b) the Court itself noted that Xinis had elsewhere correctly said facilitate, while Judge Wilkinson observed that she clearly meant facilitate.  As Wilkinson put it:

I think it legitimate for the district court to require that the government “facilitate” the plaintiff’s return to the United States so that he may assert the rights that all apparently agree are due him under law. It is fair to read the district court’s order as one requiring that the government facilitate Abrego Garcia’s release, rather than demand it. [Emphasis added.]

With due respect, this is a semantic distraction. Unsurprisingly given its lawless behavior in this proceeding, the Trump administration is exploiting it to stall — and now even to suggest that a 9–0 ruling it lost was actually decided in its favor.

Far be it from me to question Judge Wilkinson, especially when he’s obviously right as a matter of principle. Yet, what’s at stake in this situation is not a pure abstract principle — i.e., the tenet that presidents, not judges, are in charge of foreign policy. Instead, our situation is a concrete factual scenario built atop this constitutional principle. That is, in the course of engaging in foreign policy, the president’s administration made an agreement with a foreign country regarding the custody of federal prisoners, which it had undoubted authority to do. But, that agreement affects a person who is properly before a federal court in Maryland seeking vindication of his right against deportation to El Salvador, which the administration admits it has violated, and which the federal court undoubtedly has authority to redress.

I’ve occasionally been impatient with the Supreme Court’s reluctance (a reluctance shared by appellate courts) to deal with important issues that unavoidably arise on its emergency docket. While I did plenty of appellate work as a government lawyer, the bulk of my prosecutorial career was spent on investigations and trial court litigation. In those realms, emergency is the default condition and officials have to do the best they can based on the imperfect understanding of emerging facts. Since coping with emergencies is a fact of life, it often strikes me as prissy for the Court to dodge emergency matters by rationalizing that a couple of years from now, when it’s too late to help the aggrieved party, we’ll understand the facts better.

That said, it is prudent of the justices to be wary of making big decisions based on insufficiently developed factual records. Such appropriate concerns, I believe, lead appellate courts to emphasize the settled legal principles they know and avoid delving into facts that are still being uncovered. Not surprisingly, we end up getting an emergency ruling that pauses over separation of powers and hand-wrings over effectuate vs. facilitate, but says nothing about the critical facts — the custodial arrangements made by the two contracting governments.

Nevertheless, the Abrego Garcia dispute is not about settled legal principles. It is about the facts of the agreement between the U.S. and El Salvador regarding the detention of a prisoner facing (and entitled to) legal proceedings in federal court. To the extent that settled legal principles regarding separation of powers and presidential control over foreign policy are germane, they have already resulted in the custody cooperation agreement. Now the question is, under the terms of that agreement — which, as El Salvador has publicly acknowledged, give the Trump administration continuing control over the fate of the prisoners — what steps need to be taken to return Abrego Garcia to the United States?