How to Lose Judges and Alienate People

Administration’s tawdry performance in case of man it mistakenly deported

This undated photo provided by CASA, an immigrant advocacy organization, in April 2025, shows Kilmar Abrego Garcia.

The Trump Administration has been putting on a clinic in court.

Unfortunately, it's a clinic on how to alienate judges and undermine your own litigating position.

Just this morning, the 4th Circuit rebuffed the Administration’s emergency appeal of Judge Paula Xinis’s order to effectuate the return of Kilmar Armando Abrego Garcia. The order remains in effect and requires Abrego Garcia’s return by midnight tonight.

The judges on the panel, including the highly respected conservative Judge Harvey Wilkinson, wrote lengthy opinions that boil down to the forceful rejection of the special horror and legal abomination of sending an innocent man to a notorious prison with no due process. The presiding judge began her opinion as follows: "The United States government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The government's contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”

The Administration has already sent up an immediate emergency flare to the Supreme Court to stay its obligation. Somehow, one doubts that they are simultaneously taking all steps to comply with the extant order, meaning if the Supreme Court doesn’t grant a stay, they will be in flagrant disregard and face a new whipsawing before Judge Xinis.

It's the latest example of the Administration’s arrogance and fecklessness in court. Administration lawyers have been dealt a bad hand by the president’s insatiable appetite for issuing unconstitutional executive orders. Still, the way they have been forced to litigate their relatively weak positions has converted difficult missions into near impossible ones. Moreover, since judges are as capable of reading the news as any of us, the Administration’s wholehearted contempt for and disparagement of judges who hold at least part of their agenda in their hands puts them further in the hole.

The two biggest active cases are excellent illustrations of this.

I’ll leave for later this week an exposition of the Administration’s skein of obfuscation in the Alien Enemies Act case before Judge Jeb Boasberg, who is determined to find out if the government knowingly violated his order not to transport planes of alleged Venezuelan gang members to the notorious CECOT facility in El Salvador. The Administration’s shifting series of less than credible excuses has landed it in a far worse position, including for potential appeal, than it would have been had it just been up front with the judge, as government attorneys are duty-bound to be.

The astonishing fact that sets the table in the Abrego Garcia case—and that should put the entire government in a scramble to reverse the horrible situation—is that the Administration concedes that Abrego Garcia was wrongly included among the hundreds transferred to El Salvador due to what they are calling an “administrative error.” Abrego Garcia, who lived in the States with his wife and 5-year-old autistic son, has a legal permit to work here. More important, he had a special order from an immigration judge preventing him from being transported to El Salvador specifically based on credible fears that he would face persecution from local gangs there.

But now Abrego Garcia has been plunged into the ultimate nightmare of being held in El Salvador’s CECOT facility—a hellhole no one has ever been released from and with conditions that are so harsh and brutal that it is less a prison than a concentration camp. You probably saw the pictures that the Administration released triumphantly of detainees on their knees with shaved heads. Consider that image for one moment and juxtapose it with the certainty that Abrego Garcia should never have been sent there and, at least according to the United States’ legal position, may never leave.

As Judge Xinis described, “[o]nce the planes arrive in El Salvador, the male detainees were stripped and shackled. Their heads were shaved and they were marched into CECOT to join nearly 40,000 other prisoners held in some of the most inhumane and squalid conditions known in any carceral system. Since then, no one has heard from Abrego Garcia.”

This is about as horrible and embarrassing an error as a civilized government can make. The only decent response is to apologize and move heaven and earth to rectify the mistake and bring him back.

Yet this is what the United States has done instead. It filed papers before Judge Xinis that even though they had sent him there and were paying the El Salvador government for his detention, the government—and the court—were powerless to bring him home because we have no jurisdiction over El Salvador.

They argued this not sheepishly in tandem with a promise to undertake best diplomatic efforts to bring him back, but assertively, with an edge of contempt for the court and Abrego Garcia's lawyers for their ignorance of fundamental jurisdiction principles.

Xinis, predictably, was irate. She dressed down the lawyer for the Administration, telling him that the government’s conduct was "wholly lawless." She rejected the government's position that she had no jurisdiction and entered an order directing the return of Abrego Garcia by midnight on Monday.

Here is what White House press secretary Karoline Leavitt said in response to the court’s order: "We suggest that the judge contact [Salvadoran] President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.”

This is perhaps the most obnoxious comment yet by the 27-year-old who regularly opines for the Administration on legal cases and a legal system she doesn't know the first thing about. The comment—which both telegraphed disobedience and ludicrously suggested Judge Xinis’s ignorance of first principles—couldn't be better calculated to enrage a federal judge.

It's also, not surprisingly, a fatuous account of the law. Judge Xinis didn’t purport to order El Salvador to do anything. She ordered the U.S. government to take all steps to effectuate a reversal of its lawless conduct. That's a perfectly permissible use of federal habeas corpus power, which provides courts the jurisdiction to order the release of petitioners in custody in violation of U.S. law.

The Administration has already appealed the order to the 4th Circuit, describing it as “indefensible,” “constitutionally intolerable,” and comparing it to a judicial command to “effectuate” the return of the hostages from Gaza.

It's hard to see any reason for this nasty, confrontational challenge to the court, other than the demagogic political one of positioning the Administration in favor of all detentions. And that is in essence what Leavitt, JD Vance, and Trump have now been saying. Basically, even if it was a mistake, Abrego Garcia is a bad guy who deserved to be deported. Vance went so far as to say that Abrego Garcia “was a convicted MS-13 gang member with no legal right to be here.” That is a false and nauseatingly callous claim: Abrego Garcia is legally entitled to be in the United States, and he has never been charged with a crime.

The whole episode has been a debacle that has made it all the harder for Administration lawyers to stand up in court going forward. That is no less true if the Supreme Court grants a temporary stay and reprieve from compliance by midnight with Xinis’s order. If by chance it doesn’t, and come midnight tonight, Abrego Garcia is not back home, we can expect a stern Judge Xinis to call them on the carpet. If a high government official such as Homeland Security Secretary Kristi Noem can persuade Xinis the government has pulled out all stops to comply but couldn’t budge Bukele—something I, and I have to think Xinis, would find very hard to believe—then perhaps the Administration can start protesting its powerlessness.

But having perpetrated an ongoing constitutional deprivation out of Kafka, the Administration’s blithe insistence on a sterile and invalid legal argument is worse than weak; it is repugnant. Perhaps they would have lost anyway, but they are losing way uglier than they need to, or than a responsible government ever should.

In the government’s fusillade of resistance or deception, there was one brief juncture of relative candor. In the hearing on Friday, in response to a direct question from Judge Xinis, DOJ attorney Erez Reuveni conceded that Abrego Garcia should not have been removed. He also shared his frustration at not having been given enough information by DOJ’s new brass to answer all the judge’s questions.

All lawyers have a duty of candor as officers of the court; and government attorneys have an even higher duty of candor and fairness, as federal judges often remind them. It’s hard to know how Reuveni could have dodged Xinis’s questions while remaining consistent with that duty.

The next day, the DOJ placed both Reuveni and his supervisor on leave. He is now off the case, including in the Fourth Circuit. As Pam Bondi explained in a special 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.”

Talk to you later.