Is a government attorney’s candor toward the court now deemed insubordination?

This morning, we posted my analysis of a federal judge’s ultimatum to the Trump administration: Judge Paula Xinis, an Obama appointee, has given the administration until just before the stroke of midnight tonight to return Kilmar Armando Abrego Garcia from prison in El Salvador.

Although Abrego Garcia, a Salvadoran national, was illegally present in the United States, the Justice Department has admitted that his deportation to El Salvador violated a standing 2019 immigration court order (a “withholding of removal” order) that prohibited the government from deporting him to that country. Currently, he is detained there in a notorious terrorism prison, along with hundreds of other aliens the administration summarily deported in mid-March. (As we’ve extensively covered, those deportations, too, face significant legal challenges.)

Judge Xinis issued her 22-page memorandum opinion at about 1 a.m. on Sunday morning, after a tense hearing on Friday. In the interim, on Saturday, the Trump Justice Department suspended Erez Reuveni, the top DOJ immigration lawyer who handled the Friday hearing.

Just a couple of weeks ago, Attorney General Pamela Bondi promoted Reuveni to be the acting deputy director of DOJ’s Office of Immigration Litigation. Main Justice praised his diligent work on cases the Trump DOJ has filed against Democratic-controlled sanctuary cities that obstruct federal immigration enforcement.

Yet Reuveni now finds himself in the doghouse, apparently for admitting the undeniable: The Trump administration’s deportation of Abrego Garcia was in violation of the law and should not have happened.

At Friday’s hearing, Reuveni argued the Trump administration’s position that Judge Xinis has no jurisdiction in the case, both because Abrego Garcia is now in El Salvador (outside the writ of the U.S. courts) and because her directives intrude on the president’s conduct of U.S. foreign policy. These are not convincing legal arguments, but Reuveni gamely made them.

Nevertheless, Reuveni incurred the wrath of his superiors by acknowledging to Judge Xinis that (a) the Trump administration had not provided Reuveni with a satisfactory explanation for why Abrego Garcia was arrested and deported to El Salvador — with no immigration or judicial court appearances and no due process — despite the 2019 court order forbidding repatriation; and (b) he had urged his chain of command to arrange Abrego Garcia’s return to the United States for removal proceedings consistent with federal immigration law but had been rebuffed.

Reuveni’s concessions were sensible. As I explained in the post on Judge Xinis’s ruling, the American arrangement with El Salvador’s government contemplates that after one year the United States government will make a “decision on the long term disposition” of the aliens now lodged in the Salvadoran prison. Obviously, if our government has retained control over what happens to the aliens, it is not credible to contend, as DOJ has, that it lacks the power to return any or all of them to the United States.

Moreover, while the fact that the aliens are physically present in El Salvador may impair their ability to challenge their detention under habeas corpus (I doubt the courts will see it that way, but let’s suppose), three federal courts (Judge Xinis, Judge James Boasberg, and the D.C. Circuit Court of Appeals) have already ruled that the aliens may challenge the legality of their deportation under the Administrative Procedure Act.

Plainly, the courts are not usurping President Trump’s executive power to conduct foreign policy. All exercises of government power must respect the Constitution’s limitations, including due process requirements. The Supreme Court has long held that even illegal aliens have due process rights, and Congress has provided procedural protections to aliens in federal immigration laws. Even if we grant for argument’s sake the dubious proposition that the president may strike a deal with a foreign government to detain federal prisoners in facilities that do not meet American legal standards, that would still not relieve the government of the duty to comply with due process mandates in detaining and removing aliens.

Nevertheless, Main Justice is incensed because of what Reuveni’s acknowledgments logically imply. To repeat what I said in today’s post:

The Justice Department is being obstinate [in Abrego Garcia’s case] because, if it admits it can cause the return of one detainee, it effectively admits it can cause the return of all the detainees it has deported to El Salvador — including the hundreds of Venezuelan aliens it has claimed it cannot bring back, even though it now admits those aliens were entitled to challenge their deportation.

As my analysis of Judge Xinis’s ruling also notes, Reuveni made other key concessions that cut against the Trump administration’s public rhetoric about Abrego Garcia. Reuveni admitted that there was no valid immigration court removal order (either from 2019 or in connection with the alien’s removal in March) that would have authorized Abrego Garcia’s deportation to any country. He did not argue that Abrego Garcia was a member of MS-13 and abandoned a previous government contention that the alien posed a danger to the community. And he did not attempt to refute Abrego Garcia’s fear-of-persecution claims, evidently because the government failed to timely appeal back in 2019 when an immigration judge accepted those claims as a basis to grant the alien withdrawal from removal to El Salvador. (That ruling stands unless Attorney General Bondi takes formal action to reverse it; there is no indication that she has done so — a process that would take time.)

I do not believe that Reuveni, who has aggressively pursued the Trump immigration enforcement agenda, left viable arguments on the table. Rather, as Justice Department attorneys are supposed to do, he refrained from knowingly making meritless arguments — under difficult circumstances in which the Justice Department opted not to present evidence at the hearing and the judge was outraged by DOJ’s refusal to take curative action when the administration was obviously in the wrong.

Yet, in a Saturday letter obtained by the New York Times, Deputy Attorney General Todd Blanche rationalized the suspension of Reuveni by insisting that he had failed to “follow a directive from [his] superiors.” This is strikingly similar to exchanges between Blanche’s top aide, Emil Bove, and the Southern District of New York prosecutors who declined to execute Bove’s demand that they drop the corruption case against New York City Mayor Eric Adams on the false premise that it was improperly motivated (the prosecutors resigned instead).

Subsequently, asked by the Times about Reuveni’s suspension, Bondi issued this statement:

At my direction, every Department of Justice attorney is required to zealously advocate on behalf of the United States. . . . Any attorney who fails to abide by this direction will face consequences.

It would be interesting to know exactly what directive Reuveni was given that Main Justice now claims he countermanded. In the Justice Department, government attorneys have always been expected to confess error when error had obviously occurred — it’s not a choice, it’s a mandate of candor toward the court. The Justice Department is not a quotidian law firm representing a quotidian client. Its attorneys are officers of the executive branch whose duty it is to ensure that the law is enforced — even the provisions of the Constitution, statutes, rules, and jurisprudence that grant rights and privileges to those against whom the government takes action. That is an everyday aspect of the job — a difficult one and, heretofore, a source of pride among those who perform it.