GREENBELT, MD—If the Justice Department had brazenly defied a judge’s order a year ago the way it did again today in the Abrego Garcia case, it would have been a banner headline and the buzz of legal circles.
But 10 months into the Trump II presidency, it’s become all too normal for his Justice Department to refuse to comply with direct court orders, to engage in bad faith charades in court, and to dare judges to do anything about it.
The case of Abrego Garcia — the El Salvadoran man wrongfully deported to his home country in March in violation of a immigration judge’s order — may be where the Trump administration has been most persistently defiant for the longest time. It’s refusal to correct its error and bring him back sparked a constitutional clash that landed at the Supreme Court, and it only brought him back after indicting him for unrelated crimes.
You don’t have to get too deep into the weeds to understand the significance of what happened today.
The Trump administration wants to deport Abrego Garcia to somewhere in Africa, most recently Liberia. At one point Costa Rica was on the table, and Abrego Garcia is now willing to accept deportation there, but the Trump administration says Costa Rica has withdrawn its offer.
U.S. District Judge Paula Xinis wanted to get a definitive, binding account from the Trump administration on its claim that Costa Rica did in fact withdraw the offer, something more than just taking the administration’s word for it. Toward that end, and to try to head off another debacle in court, Xinis held a conference call with the parties on Monday ahead of today’s hearing and admonished DOJ lawyers.
She pointed out that the government had defied a separate order of hers in October — “no other way to sugar coat it,” she said — by putting on a witness who had no direct personal knowledge of the subject of his testimony. More than a single act of defiance, the administration had engaged in a pattern of producing non-responsive witnesses, Xinis said.
“It’s a strategy on your part on behalf of your client since day one,” she scolded the DOJ attorneys on the call.
This time Xinis tried to close off any avenues of escape for the government and to force it to bring a viable witness, not a cipher, with no involvement in the Abrego Garcia case, no knowledge of the negotiations with the third countries, and no authority to bind the government, as had happened on, by her count, three prior occasions.
So following the conference call, Xinis issued an order memorializing her instructions to DOJ lawyers. In short, Xinis ordered them to produce ICE official John E. Cantú to testify in person about the substance of a declaration he had already submitted in the case. His testimony would have to bind the Department of Homeland Security, she directed, and the government and DOJ lawyers were to make a good faith effort to prepare him to testify based on his personal knowledge and/or knowledge that he obtained from others.
Despite Xinis efforts, things went off the rails very quickly in court today.
When Deputy Assistant Attorney General Jonathan D. Guynn — questioning his own witness, I should emphasize — pointed Cantú to each of three different passages from his declaration and asked what they meant, Cantú was unable to say.
After the third dead end, Judge Xinis intervened: “Did you write this declaration?”
“With help from counsel,” Cantú said.
“When you say you don’t know what these words mean, were they just relayed to you?” Xinis asked.
“They were just relayed to me,” Cantú said, “then meeting over.”
Not surprisingly, things got rougher on cross examination by Abrego Garcia lawyer Sascha Rand. The gist of Cantú’s testimony was that he had had no prior involvement with the Abrego Garcia case before now and had only been in his current position since Nov. 3. He was told what to put in his declaration by a State Department attorney in a five-minute call and simultaneous email on Nov. 7. Most (though not all) of the portions of the declaration critical for today’s hearing were verbatim what he’d received from the State Department lawyers.
Rand asked Cantú if anyone had given him a copy of Xinis’ Monday order for him to testify. No, Cantú said.
Xinis jumped in again: “Did you have any conversations with anyone about my order that the witness would bind DHS?”
“No, your honor,” Cantú said.
She later asked if Cantú has any independent knowledge of whether anyone from State has been in touch with Costa Rica. No, Cantú said.
Cantú ultimately testified he had no independent knowledge about any of the critical sections of the declaration.
While Cantú was still on the stand, Judge Xinis declared, “The witness has zero information about the content of the declaration.” Catching herself, she turned to Cantú: “That’s no shade on you, Mr. Cantú. You’ve been candid and I appreciate that.”
Xinis proceeded to hear arguments from both sides over pending motions, but took no punitive action for the government’s conduct today. To this point, her modus operandi has been to stay focused on the more pressing issues related to Abrego Garcia’s detention and deportation.
As the four-hour hearing wound down, Judge Xinis again lamented Cantú’s testimony.
“Poor Mr. Cantú knew nothing about anything,” Xinish said. “Today was a zero, in my view.”
Abrego Garcia attorney Andrew Rossman agreed: “It’s been a parade of less-than-memorable witnesses, your honor.”
