from the someone’s-reasonably-big-mad dept
When a federal judge starts calling out government lawyers for “willful and bad faith” behavior and “deliberate evasion of fundamental discovery obligations,” you know things have gotten serious. But in the case of Abrego Garcia — the man who the DOJ admitted they accidentally sent to a Salvadoran gulag without due process — the DOJ seems determined to test just how far they can push a court’s patience.
First came the admission it was all an accident. Then, a week later, came the attempt to retroactively justify sending him to CECOT by retconning a made-up narrative about him being involved in MS-13. Now the DOJ is trying to argue that the Supreme Court didn’t actually order them to help get him released — directly contradicting the Supreme Court’s explicit language from less than two weeks ago.
The courts have shown remarkable restraint for such bad faith behavior. When the DOJ effectively ignored the district court’s initial order, Judge Paula Xinis gave them more chances to make things right — the kind of patience the DOJ rarely shows to the people it prosecutes. But last week’s hearing made it clear that patience has limits. Yesterday’s order crossed from judicial restraint into judicial rage.
In response to the DOJ’s continued stonewalling, you’ll recall that Judge Xinis ordered expedited discovery in which the government would have to hand over information it had regarding Garcia, about what (if anything) it had been doing to get him back, and some other information as well.
On Tuesday morning, the parties filed a status update, which made it quite clear the DOJ is continuing to play stupid games, avoid actually providing discovery, and just flat out lie about stuff. Perhaps the most egregious was the DOJ claiming that it is a “false premise” that the US government has been ordered to facilitate Garcia’s release:
Defendants object to Document Request No. 3 as based on the false premise that the United States can or has been ordered to facilitate Abrego Garcia’s release from custody in El Salvador. See Abrego Garcia, 604 U.S.—, slip op. at 2 (holding Defendants should “take all available steps to facilitate the return of Abrego Garcia to the United State”)
This would be a bold legal strategy even if the Supreme Court hadn’t directly said literally the opposite just two weeks ago:
The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.
It takes a special kind of boldness to tell a federal judge that a Supreme Court order explicitly says exactly the opposite of what it actually says. But the DOJ wasn’t done testing judicial patience.
As if to prove how much gamesmanship the DOJ is playing here, in its response to the discovery requests, it challenges the definitions of the words “document,” “you,” and “your.”
Judge Xinis responded with a scathing eight-page order that tells us we’re entering the judicial version of the “find out” phase, following the DOJ’s determined efforts to “fuck around.” She starts with their ridiculous claim that they have not been ordered to facilitate Garcia’s release from El Salvador:
Defendants object to certain discovery because they claim the requests are based on the “false premise that the United States can or has been ordered to facilitate Abrego Garcia’s release from custody in El Salvador.”2 See Defs.’ Objs. & Resps. to Pls.’ First Set of Expedited Interrogs., ECF No. 98-1 at 3. Defendants—and their counsel—well know that the falsehood lies not in any supposed “premise,” but in their continued mischaracterization of the Supreme Court’s Order. That Order made clear that this Court “properly required the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” See Noem v. Abrego Garcia, 604 U.S. –– (2025), slip op. at 2; see also Abrego Garcia v. Noem, No. 25-1404, 2025 WL 1135112, at *1 (4th Cir. Apr. 17, 2025). Defendants’ objection reflects a willful and bad faith refusal to comply with discovery obligations. The objection is overruled. Defendants are therefore ordered to supplement their answers in full compliance with the Federal Rules of Civil Procedure. Their answers must include facts responsive to the requests, not oblique and incomplete, non-specific characterizations.
I recognize it may not feel that strong, but having a judge call out direct “falsehoods” while noting that the lawyers before her know they’re falsehoods, and then directly saying it “reflects a willful and bad faith refusal” is not something that happens often. Judge Xinis is furious. In judicial speak, this is the equivalent of flipping a table.
The DOJ then tried another time-honored strategy of throwing every possible privilege claim at the wall to see what sticks. Judge Xinis was… unimpressed:
Equally specious, Defendants’ objections on the grounds of privilege are rejected. Defendants invoke in name only a range of protections—attorney-client privilege, the work-product doctrine, the deliberative process privilege, the state secrets privilege, and an undefined “governmental privilege”—without providing any supporting information or analysis. As Defendants and their counsel know, the proponent of a privilege must demonstrate the legal and factual bases to invoke the protections that such privilege affords….
And yet, Defendants and counsel stubbornly refuse to provide any basis for the same. Given that this Court expressly warned Defendants and their counsel to adhere strictly to their discovery obligations, see Hr’g Tr. 11:24–12:2, Apr. 16, 2025 (“Because in fairness, Mr. Ensign, [if] you’re not going to answer the questions that the plaintiffs put within the scope of my order, then you’ll justify why. You’ll cite privilege, you’ll follow the rules, I’ll make a determination.”), their boilerplate, non-particularized objections are presumptively invalid and reflect a willful refusal to comply with this Court’s Discovery Order and governing rules. ECF No. 79. Although Defendants state now that they are willing to “meet and confer” with counsel about the production of such a log, ECF No. 98-1 at 23, their repeated refusals to meet and confer about much of anything else undermine the reliability of this assertion. ECF No. 98 at 2. The Court thus finds this offer was not made in good faith.
Xinis isn’t having it on the claims that the timeline is too aggressive. She basically says “you fucked around for too long, so too fucking bad” and orders them to provide what is required by 6pm today.
Nor does the Court find Defendants’ protestations regarding the abbreviated time-line persuasive. For weeks, Defendants have sought refuge behind vague and unsubstantiated assertions of privilege, using them as a shield to obstruct discovery and evade compliance with this Court’s orders. Defendants have known, at least since last week, that this Court requires specific legal and factual showings to support any claim of privilege. Yet they have continued to rely on boilerplate assertions. That ends now. If Defendants want to preserve their privilege claims, they must support them with the required detail. Otherwise, they will lose the protections they failed to properly invoke.
And here’s the thing, when you’ve exhausted a judge’s patience this thoroughly, even potentially legitimate arguments start to look suspicious. The DOJ is learning the expensive way that credibility, once lost, is hard to recover:
Defendants object to any discovery requests concerning events predating the Court’s April 4, 2025 Order as beyond the scope of the expedited discovery. ECF No. 98-1 at 3 & 98-2 at 3. Defendants’ arbitrarily cramped reading of the Court’s order is rejected. At a minimum, the discovery period contemplates the time immediately preceding Abrego Garcia’s lawless seizure on March 12, 2025, and his transport to and confinement in CECOT, which all predate April 4, 2025.
But here, Judge Xinis goes one step further, making it clear that she’s willing to call out the Trump administration on its repeated — and obviously bogus — claims that Garcia is held entirely at the whims of El Salvador. She directly calls out that it’s quite likely the US could be seen as having joint custodial status over him:
This is particularly relevant to Abrego Garcia’s custodial status today, if for nothing else, the Plaintiffs are entitled to discover all relevant and probative evidence that undermines the Defendants’ incomplete and evasive answer that Abrego Garcia is in the “sovereign, domestic custody” of El Salvador. Indeed, custody can be joint, and custodial status may be controlled by the Defendants acting in concert with El Salvador. The Court thus overrules Defendants’ “beyond the scope” objections and directs that Defendants supplement their discovery answers and responses accordingly
This point about “joint custody” is crucial — it directly challenges the administration’s primary defense that they can’t do anything because Garcia is in another sovereign nation’s custody. The judge is laying groundwork to hold the US directly responsible.
The Trump admin also tried to claim that the details of Garcia’s lockup in CECOT, the Salvadoran concentration camp, are beyond the scope. No fucking way, says the judge, who notes it’s actually at the very heart of the issue before the court:
Defendants further object to discovery that is supposedly “outside the scope of expedited discovery authorized under the Order, to the extent is [sic] seeks information about Abrego Garcia’s removal to El Salvador, his initial placement in CECOT or his continued confinement in CECOT.” The Court overrules this objection. Information regarding Abrego Garcia’s removal, as well as placement and confinement in CECOT cut to the heart of the inquiry; namely, what steps, if any, Defendants have taken or will take “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” … The areas are also relevant and probative as to whether Defendants have made “in good faith all reasonable efforts to comply” with this Court’s Orders. … To aid the Plaintiffs in understanding whether the Defendants have sought to comply with such orders in good faith, this general objection must be rejected
She also calls out the administration’s refusal to name two people who were involved in authorizing Garcia’s removal, once again calling out the lack of good faith and “willful and intentional noncompliance.”
Defendants’ answer to Interrogatory No. 5, in which they name exactly two individuals who “have been or will be involved in any of the actions responsive to Interrogatories 1–4 or in ordering or authorizing Abrego Garcia’s removal to El Salvador, his initial placement in CECOT or his continued confinement in CECOT,” reflects a deliberate evasion of their fundamental discovery obligations. Defendants identify only Robert Cerna, Acting Field Office Director for Harlingen, and Evan Katz, Assistant Director for the Enforcement and Removal Operations at DHS, as the universe of individuals responsive to the question. Given the context of this case, Defendants have failed to respond in good faith, and their refusal to do so can only be viewed as willful and intentional noncompliance. Defendants must supplement their answer to include all individuals involved as requested in this interrogatory.
And then this is the kind of thing you never want to hear a judge say:
Defendants’ answer to Interrogatory No. 7 is vague, evasive, and incomplete. Defendants’ nonspecific reference to “a conversation” with “a representative” does not nearly satisfy their obligation to provide all relevant, nonprivileged information with specificity. Defendants must supplement
She calls out that the DOJ is trying to avoid answering the fundamental question that Xinis’ previous order had demanded of them: to explain what efforts the government has taken to facilitate Garcia’s return.
Defendants must answer Interrogatory No. 12. The interrogatory is limited to all efforts the Government has taken to facilitate the return of aliens wrongfully removed to El Salvador. The request is particularly relevant and probative to whether Defendants are taking any steps in good faith to comply with this Court’s facilitation order involving the very country to which Abrego Garcia’s was wrongfully removed. The Court also rejects that this narrow request is “unduly burdensome” because Defendants have made absolutely no showing as to why it cannot, with a modicum of due diligence, answer the question…. Merely saying so will not suffice, especially where Defendants keep such records in the ordinary course.
She also systematically dismantles the DOJ’s attempt to retcon a totally ridiculous and fabricated set of claims that Garcia was a top member of MS-13, highlighting a particularly cynical aspect of the government’s strategy. They want to use alleged MS-13 membership as both sword and shield — serious enough to justify keeping him in CECOT, but too sensitive to provide any actual evidence:
As to Interrogatory No. 14 seeking the complete factual bases for Defendants’ assertion that Abrego Garcia is a member of MS-13, Defendants’ relevancy and scope objections are rejected. Defendants have previously articulated in their daily updates as to Abrego Garcia’s custodial status and his potential return that DHS would eventually take Abrego Garcia into custody and either remove him to another country or terminate withholding of removal because of his purported “membership in MS-13, a designated foreign terrorist organization.” ECF No. 77 at 2. Defendants cannot invoke the moniker of MS-13 as responsive to the Court’s previous order, … then object to follow-up interrogatories seeking the factual bases for the same. Defendants must supplement this answer.
This last point is particularly damning – the DOJ is trying to use alleged MS-13 membership both as a shield (to justify not bringing him back) and a sword (to paint him as dangerous), while simultaneously refusing to provide any evidence for these claims. The judge is calling them out on this transparent manipulation.
This order represents a significant escalation, even if it stops short of the contempt citations some observers are demanding. But the trajectory is clear: Judge Xinis has moved from giving the DOJ the benefit of the doubt to documenting, in painstaking detail, what appears to be a pattern of willful deception.
Judges are always going to be slow to do things like hold government lawyers in contempt. The government gets way, way, way more chances than anyone else in the judicial system.
But when a judge methodically documents government lawyers making representations they “well know” to be false, we’re moving past mere frustration into the territory where careers end and bar licenses get questioned.
This has to be about the angriest I’ve seen a judge towards a government lawyer in years, and it’s clear that the stupid games the DOJ is playing aren’t winning any fans. And if they think they can just appeal their way to getting around this, that seems unlikely as well. We already covered how the Fourth Circuit keeps smacking down the DOJ, including the ruling last week in which one of the biggest names in Republican judges called the DOJ’s behavior “shocking.” And it’s looking like a majority of the Supreme Court has increasing concerns about all this as well.
Of all the hills for the White House to die on, this one seems particularly poorly chosen. A constitutional showdown between the executive and judicial branches was inevitable with the Trump administration, but picking a fight over whether you can send someone to a foreign concentration camp without due process is… an interesting strategic choice. Talking with friends who aren’t big into politics or current events this past weekend, almost all of them were talking about how absolutely incensed they are that the government would send this guy to a Salvadoran concentration camp with no due process.
Unlike many complex constitutional disputes, this one has broken through to the general public in a visceral way. The basic facts — the government accidentally sent someone to a torture camp and is now arguing they don’t have to help get him back — cut through partisan narratives in a way few stories do.
The courts appear equally baffled by the administration’s intransigence. When both conservative appellate judges and the very conservative Supreme Court majority are signaling their displeasure, you might think the DOJ would recognize the wisdom of a tactical retreat. Instead, we’re watching in real time as the judiciary’s traditional deference to the executive branch dissolves in the face of increasingly transparent bad faith. The question now is what happens next?
There are rumblings in MAGA circles about just ignoring the courts altogether, and that’s a line I’m sure some in the administration are eager to cross. But it’s also one you don’t come back from easily. That’s when we start to enter truly uncharted territory, but better it be with the judiciary (and basic common sense and rule of law) on our side, than the other way around.
Filed Under: abrego garcia, discovery, donald trump, due process, paula xinis, privilege
