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The DOJ ignores Judge Xinis again to return Kilmar Garcia [1]
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Date: 2025-04-13
The DOJ has told U.S. District Court Judge Paula Xinis they don't have to follow her orders because it conflicts with Trump's Article II powers as laid out by the Supreme Court.
Judge Xinis on Friday said she wanted daily reports on Garcia's whereabouts and condition and what had been done each day to get him back to the U.S.
The government lawyers said the U.S. would take over bringing him in if he showed up at the border, which they interpreted as "facilitate(ing)" his return.
The seven page response (PDF) to Kilmar's lawyer's request for additional relief, as in bringing Kilmar home, was met with discussions of the difference between "facilitate" and "effectuate." Also executive powers of foreign policy and sovereignty and the meaning of Article II. Basically they ignored what the Supreme Court meant and Judge Xinis's amended order. A legal song and dance.
The DOJ argued the court has no authority to require the U.S. government to negotiate with the El Salvador government because that would be a violation of the separation of powers and an intrusion into the president's power to conduct foreign relations.
A "federal court cannot compel the Executive Branch to engage in any mandated act of diplomacy or incursion upon the sovereignty of another nation."
But, the Executive Branch has already engaged in an illegal act through diplomacy, so the only remedy is for it to engage again in order to rectify the mistake, and the court makes the decisions, not the DOJ.
The DOJ is saying the Supreme Court ruling to bring back Garcia doesn't say that they have to bring him back.
The DOJ is also ignoring Garcia's lawyers demand to detail how everything happened in the first place by claiming attorney-client and state secret privileges.
"It would be inappropriate for this court to hastily order production of these sensitive documents."
Xinis wants to know what the government is thinking about how to get Garcia returned, but that "could interfere with ongoing diplomatic discussions --- particularly in the context of President Bukele's ongoing trip to the United States."
The DOJ has excuses for everything. It's as bad as talking to Peter Navarro about tariffs.
A hearing is scheduled for Tuesday afternoon in front of Judge Xinis to once again find out what the DOJ and the government are doing to get Garcia back to the United States. With the current impasse, they will probably continue with what they just wrote in their seven-page response.
We may finally find out what exactly what Judge Xinis thinks of the Supreme Court ruling.
The Supreme Court order (4 pages PDF) has Justices Sotomayer, Kagan and Brown explaining right there in the April 10th decision as meaning everything done to put him in the El Salvadorian prison was illegal and demanding bringing Garcia home. Reading it leaves little doubt what the Supreme Court meant. There's no doubt what Judge Xinis meant. The order said to facilitate and effectuate. Not either or. Effectuate means to get him out of prison and fascilitate means to give back his documents, allowing him to stay in the U.S.
Garcia's lawyers have requested Judge Xinis to issue an order compelling the government to respond to why it should not be held in contempt of court for not following the court's orders.
There will be fireworks in court on Tuesday. The government will keep stonewalling while Kilmar languishes in jail. The DOJ lawyers are playing a game, and judges think their orders should be followed. They think the judge won't hold them in contempt, and if she does, what then? Do they ignore the contempt of court? Depends if she tells the Marshals to haul them off to jail or not. She could.
Judge Boasberg dealing with the plane flights themselves and his orders being ignored and his suggestions that he might hold the government in contempt is still another showdown. There's no new news on that front.
Right now, the impetus is to get Kilmar Garcia home. The hearing is on Tuesday. President Nayib Bukele visits Trump at the White House on Monday.
Bukele is already here. He landed at Joint Base Andrew's on Saturday. He created a two minute video of his arrival, which can be seen on Bukele's X account.
Just to see how strange this whole visit is, today he reposted a welcome by Matt Gaetz.
Trump's presidential calendar isn't updated until after midnight, so the timing of Bukele's visit with Trump isn't known, or how long he will be there. Likely, there would be some question and answer in the Oval Office. A joint news conference is also unknown. The last one with Netanyahu was canceled. Somewhere, Trump and Bukele should be hit by questions about the plane loads of prisoners and Garcia.
What happens tomorrow will be brought up by Garcia's lawyers on Tuesday. How much will be known is another question.
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