Lawfare Daily, Bonus Edition: Unpacking the July 7 Hearing for Kilmar Abrego Garcia

[Intro]

Anna Bower: She is asking these questions because she wants to know like, why is the government filing this motion in which it argues that they don't have the power to return Abrego to the United States and that she doesn't have jurisdiction as a result, if at the same time there seemed to be maybe some preparations to bring him back because of the criminal indictment.

Benjamin Wittes: It’s a Lawfare Live bonus episode of the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare Senior Editors Anna Bower and Roger Parloff.

Roger Parloff: You know, we've had a lot of people high up, talking head sort of people in the administration saying, he, he's, we're not gonna deport him before the criminal case. But what Guynn is saying is we're, we're gonna deport him. And we aren't gonna wait around for the criminal case.

Benjamin Wittes: On Tuesday, July 8, we got together for a special recording of Lawfare Live to talk about the district court hearing in the civil case of Kilmar Abrego Garcia.

[Main Podcast]

So Roger, for those who are super lost in this whole thing, and we had Kilmar Abrego Garcia was in El Salvador and now he's back and there's an indictment, but this case hasn't gone away. Like situate us a little bit. Why is this case still around and what were the issues before Judge Paula Xinis's yesterday.

Roger Parloff: Well, there were four motions before her. And one of them actually is exactly your question. The government wants to know why is this case still around? That would be a, a motion to dismiss on mootness grounds. They take the position that it became moot because Abrego is back in the U.S. We did our duty and that's it.

There was actually one motion that was be filed embarrassingly long time before that, May 27^th. And it was another go government motion to dismiss, but it was a motion to dismiss for lack of jurisdiction on the theory that Abrego Garcia wasn't in U.S. custody, so the government had no way of possibly producing him.

And of course that had May 27^th was six days after, unbeknownst to everybody at the time, they had indicted him. And so there were a lot of questions that Judge Xinis had about that timing. Like did they, were they aware that he had been indicted when they were saying that they had no way of bringing him back and, and that sort of thing.

The third motion was by the plaintiffs. It had been filed after, in the criminal case it looked like the magistrate judge there was going to grant release, at least from criminal custody, in which case he would immediately go into immigration custody. And the plaintiffs were worried that they would whisk him off and deport him, you know, sort of on the spot either to send him back to CECOT possibly, or send him back to El Salvador, send him to a third country like South Sudan. So they wanted some emergency relief. They wanted to bring him back to Maryland and make sure he doesn't go outside the U.S. for, for even in detention, make sure he isn't removed.

And the last motion was a motion for leave to file an amended complaint. The plaintiffs have filed and want to file a new complaint that, it contains the torture charges at CECOT, among other things.

Benjamin Wittes: Alright, so that's a sort of smorgasbord of stuff. Anna, tell us a little bit about the hearing at a, at a high level, what did Judge Xinis do? Which parts of these did she focus on, et cetera?

Anna Bower: Yeah, so we started out with one of the government's motions to dismiss. This is the one that was filed as, as Roger put it an embarrassingly long time ago, I think is the way that he described it. But yeah, it was a long time ago. It was before Abrego Garcia was brought back to the United States.

And I believe that the date on that, Roger, correct me if I'm wrong, is May 27th, I think, was that motion was filed.

Roger Parloff: That’s right.

Anna Bower: Keep in mind that Garcia already been indicted at the time that this motion was filed by the government in which they argue that they did not have, they essentially argue that the, they don't have custody of Abrego, El Salvador has custody of him. They don't have power to bring him back.

They also raised a, a jurisdictional issue that Judge Xinis had already kind of dealt with previously, so there were a lot of jurisdictional issues that they were raising in this motion. Of course, as I mentioned, Abrego was already indicted at that point, but it was under seal, so it was not clear either to the parties or to the public more broadly that there were already preparations to or seemed to be preparations to bring him back to the United States.

And it, it really, I think that Judge Xinis, when she had the parties, or particularly the government, addressed this motion. It was very clear, Ben, that she already knew kind of what she was going to do with this motion. But she said that essentially she wanted to ask the government some questions about it because she thought that it was odd that they had not withdrawn it even though by the time we get around to this hearing, it's already clear that the circumstances have changed. Abrego has been brought, brought back to the United States. He's in criminal custody. So some of the grounds that they had raised regarding the custodial status of Abrego just were no longer relevant.

For the government, for DOJ was a woman named Bridget O’Hickey, who is a new attorney at DOJ. She was formerly in the Florida Solicitor General's Office and, and it seems to be the case that she just started at DOJ in May. And, you know, she's arguing this motion and does not seem to have a, a lot of familiarity with some of the, some of the timelines and, and history of the case.

So Judge Xinis starts asking her about things like, you know, why did the government not withdraw this motion? Did the government know, did DOJ know at the time that it filed this motion that Mr. Abrego had already been indicted? Things like that. That was kind of, seemed to be the purpose of our even hearing the government on this motion is that she wanted to ask some of these questions because the timing of everything seemed to be a little bit suspect to Judge Xinis. And again, Bridget O’Hickey did not have a whole lot of answers for her, and so we can talk a little bit more about that once I get through these other motions.

But where we left on this first motion, Ben is basically, Judge Xinis said, I don't even need to hear the, a response from the plaintiffs, I already know what I'm going to do. I'm gonna deny this motion from the bench. One reason being that again, the circumstances have changed regarding the custodial status of Abrego.

But also again, on the other jurisdictional bar that they raised, she said that she'd already ruled on that and that it went up to the Fourth Circuit and then to the Supreme Court, and they ruled on the merits, which, you know, implied that they did not think that you know this, there was a jurisdictional, statutory jurisdictional bar to her hearing the case. So, she denied that from the bench.

Then we move on to the other motion to dismiss on mootness grounds. The idea being that Judge Xinis ordered Abrego's return. Now he's been returned, so there's nothing left of the case because the government has fulfilled its obligations. Again, Bridget O’Hickey took the lead on this one. You know, I think that this was a more substantive discussion from both the government and the plaintiffs.

Ultimately what Judge Xinis in the end, and again ruled from the bench, said that basically while she thinks that arguably the government has fulfilled its obligation, she seemed to not really entirely be sure because the plaintiffs raised this argument that getting him back to the status quo ante means returning him to Maryland as opposed to, you know, just bringing him back and putting him in Tennessee and putting him in a wholly different circumstance than he was before when he was previously, you know, someone who was on supervised release and immigration detention, or, excuse me, not in immigration detention, but on super supervised release in being supervised by immigration authorities in Maryland.

So she seems to have this kind of question that she's working out in her mind of like, what would it, does it mean to return Abrego to the status quo ante, what does it mean as the Supreme Court said in its decision in this case previously to, you know, kind of treat his case as it would have been had he not been wrongfully removed.

So that was kind of one of the things that she seems to be leaving open there. But in terms of one of the reasons she denies the motion to dismiss on mootness grounds is that she thinks that the risk of re-offending essentially is, is still there. And, and so she ends up kind of on that basis saying that, you know, there is something still left for me to do in this case.

And then finally in terms of the, kind of the, the motions that we actually got to the substance of, because the last motion we didn't even get to the substance of the last one was the motion to return Abrego to Maryland if he is released from criminal custody in Tennessee.

This one was, was quite interesting. Jonathan Guynn argued most of it for the government in response to, you know, the plaintiff's request. And Jonathan Guynn has argued before he seems to be the one who has the most familiarity and and background with this case that started out with Erez Reuveni and then Drew Ensign has previously been involved as well.

But he got a lot of questions from Judge Xinis about the future plans for Mr. Abrego if he is released from criminal custody. He confirmed that the government intends to, if, if he is released from criminal custody, the government intends to remove him to a third country and that it will, it does not plan to wait for his criminal trial to be over in order to initiate those proceedings.

But then he kind of waffled a lot where he would say. But you know, this plan could change. You know, we're going to the, the DHS is going to assess this if he is released from criminal custody. And it could be that we seek a, the government seeks a, to dissolve his withholding of removal to El Salvador in an effort to then redeport him to El Salvador.

So there was a lot of kind of waffling on that, which led Judge Xinis to basically say, well, I think I might need to try to get answers on plans without knowing, you know, what exactly your plans are. And so ultimately where she left it on that one is to say, on Thursday, I want the government to produce someone with personal knowledge about the plans and steps the government intends to take with respect to what will happen to Mr. Abrego if he is released.

And I want them to be prepared to testify in my courtroom on Thursday at 1 o’clock.

Benjamin Wittes: Yeah. So let's, let's go motion by motion. So let's start, Roger with the mootness motion. On the one hand, you look at it and you say, Abrego files a suit saying I was wrongly deported, bring me back. He's brought back, there's no case left.

He didn't say, I want relief from prospective criminal charges that might materialize. And by the way, you can't get that sort of relief anyway. The remedies on the criminal side are in the criminal process, right? He can be found not guilty. He can prove he's, you know, the government has to prove its case.

And he was never seeking protection against prospective deportation that complies with the law. So what is, what is the government, I mean, I totally understand the government's argument here that the case is moot. What is Abrego's argument that the case isn't moot? And why did that carry the day?

Roger Parloff: Well, we don't know for sure that it carried the day. But she certainly, to me, she seemed to be tending in that direction that she was not going to dismiss for movement.

Anna Bower: Oh, I think that she denied I, to my memory, she denied it from the bench, did she not?

Roger Parloff: Well, that could be. I mean, she did say something like that, but she also said, I at least have, I, I, what I heard was I at least have jurisdiction to continue to consider this question.

Anna Bower: Right, yes.

Roger Parloff: So I don't, I don't know if it's completely over.

Anna Bower: Yeah. And I will say too, something I didn't mention is that she, what she, one thing she did take under advisement is the request to dissolve the preliminary injunction that, you know, required them to facilitate his return. And so that's one that is definitely seems to be unclear. The way I heard it though is that at least part of the motion was denied from the bench.

Roger Parloff: Okay. And to answer your question, I would not want to be in front of the Supreme Court explaining the plaintiff's position here. You know, they did as, as Anna said, you know, the, the part of the theory is, well, the Supreme Court said, return him to basically the status quo ante, the position he would've been in and the position he would've been in was in Maryland. But that doesn't make any sense to me. And actually the original complaint, you know, doesn't really say return him to Maryland, it's it's sort of implicit. I, I just don't quite get that.

But in my mind, it does ask for declaratory relief, like a wrong was committed and it does ask for a preliminary injunction. And then there's a question, well, if he's back, do you still have jurisdiction to issue a retroactive declaratory relief or is it just moot? And I think the her position and, and the plaintiff's position is that this was no garden variety mistake that has now been righted.

This was, you know, an outrage and it may not be over. We don't know that they aren't gonna turn around and do something unlawful tomorrow again. And so I think in that sense the response to the motion to dismiss for mootness. And the third motion, which is the motion for extraordinary, the emergency motion for relief sort of merge.

And it's that you need to protect me if, if I'm released from criminal custody, I need some interim relief to keep them from doing something illegal to me immediately, irreparably. And so I think that's, sort of where I come down.

There's also another complexity, which is that returning him to Maryland, apparently the government argues, and I, they might be right, they have no detention facility in Maryland anymore. Apparently Maryland passed a law saying you can't use our facility. The federal government can't use our facilities anymore at least, you know, for any sort of long term confinement. And she sort of skipped over that.

She did didn't seem to, I didn't understand the plaintiff's answer to that. I didn't understand her answer to that. So I, there are a lot of, there's a lot, that's fuzzy here.

Benjamin Wittes: Alright, so the government may have a winning argument on the mootness Anna. They also moved to dismiss on non mootness jurisdictional grounds. Walk us through that one and how it went.

Anna Bower: Yeah. Well, so this is the one that I mentioned that was honestly kind of mooted already by the fact that Abrego had been returned to the United States. It was filed before he was returned, in which they essentially say, you know, the court doesn't have jurisdiction to provide the relief that the plaintiffs want because he in custody in El Salvador.

And, and that's the gist of it. Again, there's also the I will just briefly say they tried to raise a statutory argument in which they basically said that there's a jurisdictional bar to the court hearing the case. That's the–

Benjamin Wittes: These are the larger jurisdiction stripping provisions that affect a lot of these habeas cases in in immigration context.

Anna Bower: The exact statutory, it's 8 U.S.C., is it 1252(g)? Roger.

Roger Parloff: Yeah.

Anna Bower: Yeah. And, and so they raised this, you know, argument about a jurisdictional bar again, that, as I mentioned, Judge Xinis basically said, I've already ruled on this, and the Fourth Circuit, you know, basically said that I'm right by, you know, going straight to the merits of, of this issue whenever, whenever they heard the matter. Then it went up to the Supreme Court.

And the government's argument, you know, is that, well, that's not, there's no precedential value in terms of the jurisdictional argument that we’re making because essentially, they were kind of trying to say like, that's not what the case was focused on. That's not what the court was really deciding. So, you know, therefore this is still a live issue. But Judge Xinis did not buy that.

But the, the other thing too, going back to the custody issue, that had already kind of been mooted because the circumstances have changed. But as I mentioned, one of the more interesting things about the argument on this motion, not so much that it was argument, it was more kind of like the Judge just asking questions and of the government, is that there was this exchange in which Judge Xinis is asking about what the government knew when it filed this motion, because it was about a week after Abrego had already been indicted, but that indictment was under seal.

She is asking these questions because she wants to know like, why is the government filing this motion in which it argues that they don't have the power to return Abrego to the United States and that she doesn't have jurisdiction as a result, if at the same time there seemed to be maybe some preparations to bring him back because of the criminal indictment.

And that leads her to then ask, you know, what role the criminal indictment played in the negotiations to facilitate his return. So there's a really uncomfortable exchange between Xinis and this very new, very green DOJ lawyer, Bridget O’Hickey.

Benjamin Wittes: Who is there to prevent Drew Ensign from having to appear before Paula Xinis.

Anna Bower: Well.

Benjamin Wittes: I mean, not, not that they're gonna say that, but

Roger Parloff: It had that feel to me, yeah.

Anna Bower: It did, it did have that feel. And this has happened before where there have been people who have stepped in for more experienced DOJ lawyers who have a history with the case, that happened in J.G.G. with Drew Ensign.

In this case, you know, Jonathan Guynn was there, but he was not arguing the motion. And when Judge Xinis would ask these questions of Bridget O’Hickey, there would be a long pause and then they would have to whisper between the two of each other. She ultimately would say, basically, I'm not familiar with the timeline. You know, I don't know those sorts of things.

But, you know, there, there was one moment, for example, when Judge Xinis says something to the effect of like, you know, was his indictment–I'm trying to scroll back to, to my notes to find this particular part–but you know, what was part of the purpose of the indictment to facilitate his return. And Bridget O’Hickey kind of implies that this, it, it was it, even though she says, you know, no, he was, he was already under investigation. That's why he was indicted. You know, she does say something to the effect of, you know, I, I can't discuss this without getting into the negotiations.

Another interesting part of this is that Judge Xinis pressed on the timeline. We know from testimony in the criminal case in Tennessee that the HSI case agent who was, who has kind of been one of the lead case agents investigating this and testified in at the detention hearing in Tennessee, said that he was not assigned to the case until April 28th.

And so Judge Xinis was kind of asking about this and when the investigation actually started. And there was a back and forth in which Bridget O’Hickey was saying, I think that the investigation started before the 28th. And, and you know, Judge Xinis was like, well there's, you know, sworn testimony to the contrary.

I actually think that the investigation probably did start a little bit earlier because there's a HSI investigative referral report that's dated on the 17th, but all that is just to say that point Judge Xinis was making was that the investigation didn't seem to start until after the Abrego suit was filed and she issued her order. So that's where we kind of, some of the more interesting things that happen in on that motion.

Benjamin Wittes: Alright, so let's, let's talk about that last motion, the move me back to Maryland emergency relief motion. I gotta say, Roger, I don't understand this one. If the government wants to drop the case against him and deport him or deport him without dropping the case, it can do that at will. What does it matter if he's in law enforcement custody? they can transfer him to DHS custody anytime they want.

I don't understand why he's more vulnerable if he is in criminal custody than he is, in criminal custody then if he's in DHS custody, then if he's walking the street and vulnerable to every ice agent who drives by.

Roger Parloff: So if the, I think the issue is if he's released from criminal custody and we don't know if he will be, there's gonna be this July 16th, there's gonna be a de novo bail hearing in front of the Article Three judge now, not the magistrate Judge Crenshaw. And so he might, and I, I, presumably justice is going to try to beef up their case, shore up their case and maybe he'll decide that they've met their burden to keep him detained.

But if they don't, then he moves to immigration custody. And you know, we've had a lot of people high up, talking head, sort of people in the administration saying he, he's, we're not gonna deport him before the criminal case. But what Guynn is saying is we're, we're gonna deport him and we aren't gonna wait around for the criminal case.

Now I'm gonna say something now that I probably shouldn't and was hoping to check with an immigration lawyer before saying, so take it with a grain of salt. But I don't think the immigration people can just detain somebody. They can't detain somebody indefinitely. Their excuse for detaining somebody is that they have a notice, an order of removal, and there are limits.

There's a statute that says you get 90 days to remove him, and is in fact it's mandatory to be in detention. And after that you can extend it. And then the Supreme Court said in, in a case called Zadvydas in 2000 that there's a presumptive limit of about six months of detention. And if you can't show that there's a reasonable probability that you're, you're gonna really remove him, that you'll have a, a third country that will take him, you need to release him.

And so I think that whatever they plan to do, their position in court has to be we're gonna remove him. Cause if they're saying no, we're just gonna wait for six, eight months while he's in criminal custody. And while he's doing the criminal case, I, I, I don't think they have the power to do that. So I think this has to be their position, whether or not it really is their position.

But it, it does sound like they will need to remove and, and then what Guynn is saying is theory number one is a third country, and then we don't know which third country. And theory number two is, it could be that we'll reconsider this idea of trying to remove the withholding of removal order.

But they are no longer arguing the Steven Miller version, which is that once Secretary Rubio declared MS-13 to be a terrorist organization, the 2019 withholding of removal, vaporized, and they can just send him to CECOT. They realize that's not true. They have to reopen the immigration hearing. They have to go before an immigration judge and try to convince him that he's no longer eligible for multiple reasons, conceivable reasons.

Benjamin Wittes: I will just say that is progress actually. You know, we always talk about the things that the court litigation has not been able to do, but getting the administration to acknowledge that actually you do have to go through this process. You can't simply rely on a designation of a foreign terrorist organization to vaporize all pre-existing restraints. Actually that's a good effect of this litigation, and I, I do think it's worth crediting.

Roger Parloff: But I think Judge Xinis, I think Judge Xinis is worried that, yeah, they say that today. But what's to-

Benjamin Wittes: And she is absolutely right to be worried about it.

Roger Parloff: And that's why she wants to retain jurisdiction and, and say, look, put something. And in fact, she kept saying, look, you can moot this out if you're willing to sign something, sign an agreement with the plain, with the plaintiff. It doesn't even have to bind anyone but Abrego.

But just say, irrevocably, here's what we're doing with Abrego. We aren't gonna send him to CECOT, we aren't gonna send him to South Sudan. Here's what we're, we're gonna give him the due process and so on.

Anna Bower: Well, and also to this point too, I mean, Jonathan Guynn is sitting there telling Judge Xinis, you know, this is probably what the plan is. It could change. And then also saying, you know, well you honor, yes we intend, DOJ intends to try Mr. Abrego, but you know, DHS is trying to protect the American people from a dangerous individual, I believe that that's how he described Mr. Abrego. And we don't have, you know, they're gonna try to do what they wanna do that they think is right. And that might mean, you know, just going ahead and removing him.

So they're, it's kind of like setting up this situation in which DOJ is saying, oops, we don't have control over our own client, DHS. And so in that, in those circumstances, the way that they're kind of basically saying they don't have responsibility for what DHS might do, it really does make you wonder, you know what, whatever they're saying now could change tomorrow.

Benjamin Wittes: Alright, I want to touch briefly on a development that was not in Greenbelt yesterday, but was in the D.V.D. case. Anna. What happened? What did El Salvador do? What did the UN do and why should anybody care?

Anna Bower: Yeah, so this is actually in the J.G.G. case, not the D.V.D. case.

Benjamin Wittes: I'm sorry. J.G.G, D.V.D., you know, J.P.L, it's all three letter and it's three letter initials all the way down.

Anna Bower: Yeah. Yeah. So this is the case that is before Judge Boasberg that is the one that has involved the issues of, you know, criminal contempt. And it relates to a class of plaintiffs under the Alien Enemy Act who were removed to Salvador.

And most recently Judge Boasberg in that case, if people recall, we've talked this on Lawfare Live a lot, essentially found as one of the key issues here in deciding whether to certify a class and what kind of relief that can be granted here has related to this issue of whether or not El Salvador has constructive custody over the people who are incarcerated at CECOT.

And in issuing his most recent order, Judge Boasberg ultimately found that there is no constructive custody that El Salvador is, you know, the custodian as the U.S. has argued in this case, but then ultimately still said that, you know, there's potentially some relief that could be crafted under, you know, looking at equitable principles. Again, don't need to get too much in the weeds of it, but just focusing on the issue that constructive custody has been very important in this case.

And yesterday the plaintiffs in J.G.G. filed a notice in which they revealed some new evidence related to the constructive issue that, again, Judge Boasberg already issued an order in which he found that the U.S. does not have constructive custody over the people detained at CECOT.

But it relates to the UN working group that works on enforced disappearances. There were four families of Venezuelan nationals who were disappeared to CECOT in under that group of people who were removed on, I think it was March 15th and 16^th. And the working group requested information from the government of El Salvador about these nationals and the circumstances of their disappearance.

And in response that government of El Salvador sent a communication to the UN in which they said, quote, “The actions of the state of El Salvador have been limited to the implementation of a bilateral cooperation mechanism with another state in which it has facilitated the use of the Salvadoran prison infrastructure for the custody of persons detained within the scope of the justice system and law enforcement of that other state. In this context, the jurisdiction and legal responsibility for these persons lie exclusively with the competent foreign authorities by virtue of international agreements signed and in accordance with the principles of sovereignty and international cooperation and criminal matters.”

So that language is certainly, you know, seems to go to the question of who has legal responsibility and power to either seek the return of the people at CEOCT, who is actually the custodian whether you know, constructively at least. And so that's why the plaintiffs, you know, filed this information. They said they weren't aware of it until this week. And what's interesting is that they basically don't ask to reopen this question of constructive custody.

They kind of more so are alerting the judge to this in case they need to do so later on. They say that they don't think they need to stand on the constructive custody issue because they think that Judge Boasberg is right, that they don't, you know, need to show that.

But it's an interesting development because on one reading of this, it seems to be contrary to everything that the government has represented to Judge Boasberg about whether or not they have constructive custody over these people, whether they can actually, you know, get them back, all of those things. That said, I think that there's potentially a different reading of this, that the government is likely to argue if it, if it does come to, does come to it in terms of being asked about this.

I think that they're likely to say that this language is specifically about who is responsible or who can, what actions are attributable to which country in terms of the actual transfer. You know, at the time that these people were disappeared from the United States. Who was responsible? Who was responsible?

And El Salvador in one interpretation is basically saying, you know, we don't have responsibility from that. It was the United States.

Benjamin Wittes: Folks, thanks for joining us today. Thanks to Anna Bower. Thanks to Roger Parloff. Folks, this is kind of an experiment. We're, we've done a few of these hearing updates outside our regular Lawfare Live schedule. Give us feedback. Do you want more of these? Do you, should we just fold these into our Friday roundups? How should we think about these?

This seemed like a particularly meaty hearing, so we did it. But we're still working on thinking about the format and we want feedback from you. So leave comments, leave thoughts. We will be back Friday at four for our regular news roundup, “Trump Trials and Tribulations.” See you then.

The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

Please rate and review us wherever you get your podcasts and look out for our other podcast offerings, including Rational Security, Allies, and Escalation, our latest Lawfare Presents podcast series on the war in Ukraine. Check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja. Our theme song is from Alibi Music. As always, thank you for listening.