An extraordinary opinion for the current crisis

And for the ages

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Yesterday afternoon, the Fourth Circuit Court of Appeals denied the Administration’s emergency appeal seeking to stop Judge Paula Xinis from probing into the Administration's efforts—or lack thereof—to facilitate the release of Kilmar Abrego-Garcia from CECOT, the gulag-like El Salvador prison that the United States mistakenly delivered him to.

The ruling itself was heartening. But that was the least of it. Most people expected that, having affirmed Judge Xinis’s initial order—and in turn been affirmed by the Supreme Court—the Fourth Circuit would rebuff the Administration’s effort to prevent Judge Xinis from following through with court-ordered discovery.

The Fourth Circuit’s speed in rejecting the government's petition for a stay was remarkable. The government filed its emergency papers at around midnight on Wednesday. At two in the morning on Thursday, the Court of Appeals ordered Abrego-Garcia’s lawyers to respond by 5 PM that day. Then, at about 2:45—i.e., before Abrego-Garcia’s papers were even due—the Fourth Circuit unanimously denied the government’s request.

That warp-speed treatment communicated the urgency of the case and Judge Xinis’s declaration that “Every day Mr. Abrego-Garcia is detained in CECOT is another day of irreparable harm.”

It's the words of the order that were thunderous. The author was J. Harvie Wilkinson, a Reagan appointee and a conservative icon particularly known for deference to the Executive. It’s an opinion that is by turns politic, blunt, reproachful, and horrified at the precipice that the Administration’s lawlessness and arrogance have brought us to. It ends with an extraordinary direct appeal to the Executive to “vindicate [the rule of law] and to summon the best that is within us while there is still time.”

The opinion is short—only six pages—and plain-spoken. It aims to bring home the stakes of this historic showdown moment to everyone, not just lawyers. Early in the opinion, Wilkinson writes:

“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 assemblage of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody, 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 the courthouse still hold dear.”

Future accounts of this high-crisis moment that document the democracy’s demise—or its resurgence, as the case may be—will include the words that Wilkinson wrote yesterday. Considering everything—where we are as a democracy, the stakes of the Abrego-Garcia case in particular, the truculent posture of the Administration, Wilkinson’s place and reputation in the federal judiciary—the opinion is fairly magnificent.

You can find the full opinion here. It’s a five-minute read and utterly worthwhile for anyone who cares about the American experiment and the degree to which it is teetering as a result of one man’s insatiable hunger for power.

Talk to you later.