It has been more than a month since the Supreme Court ordered the White House to work toward securing the release of a Maryland man who was wrongfully deported to a notorious prison in El Salvador in March.
Top administration officials — including President Trump himself — have repeatedly said that the man, Kilmar Armando Abrego Garcia, will not be coming back to the United States, largely because of accusations that he is a member of the violent street gang MS-13.
Their public statements have raised significant questions about whether the administration is openly defying the Supreme Court’s instructions — and what, if anything, might be done about that.
But even as those weighty issues simmer in the background, the White House is confronting a more immediate concern: whether it has been abiding by a separate court order to answer questions about the way it has been handling the case.
On Friday, lawyers for the Justice Department are scheduled to appear in Federal District Court in Maryland to defend their latest effort to avoid disclosing details about several key aspects of the proceeding. Those include the diplomatic steps that officials have taken in the past few weeks toward releasing Mr. Abrego Garcia, as well as the nature of the deal between the White House and the Salvadoran government to house deported immigrants in its jails.
The Justice Department has argued that many of those details should not be made public because they amount to state secrets. In fact, in a declaration filed last week mostly under seal, Secretary of State Marco Rubio said that the disclosure of such material “could be expected to cause significant harm to the foreign relations and national security interests of the United States.”
Lawyers for Mr. Abrego Garcia have scoffed at the idea that the government’s efforts to free their client from El Salvador should be considered a state secret, especially given that Mr. Trump and some of his top aides have been talking publicly about the man for weeks.
“On its face, there is little reason to believe that compliance with a court order to facilitate the release and return of a single mistakenly removed individual so that he can get his day in court implicates state secrets at all,” the lawyers wrote in a court filing this week. “No military or intelligence operations are involved, and it defies reason to imagine that the United States’ relationship with El Salvador would be endangered by any effort to seek the return of a wrongfully deported person who the government admits never should have been removed to El Salvador in the first place.”
Judge Paula Xinis, who is presiding over the proceeding, will hear both sides of this debate on Friday and eventually determine whether to let the government use what is known as the state secrets privilege and other legal protections to keep its internal deliberations under wraps. The hearing in front of her could become contentious, if only because the administration has for weeks been stonewalling her efforts to get to the bottom of how it has been handling the Abrego Garcia case.
In early April, for example, the judge determined that the White House had failed to comply with the Supreme Court’s instructions to “facilitate” Mr. Abrego Garcia’s release from Salvadoran custody. As an initial remedy, she ordered the government to provide her with daily updates about what steps it had taken and planned to take to secure Mr. Abrego Garcia’s freedom.
Then, after a federal appeals court directed officials to take a more proactive role in getting him out of custody, Judge Xinis opened an investigation into what exactly the administration had been doing. As part of that inquiry, she ordered Trump officials to answer questions — both in person and in writing — about the deal they had reached to house deported immigrants in El Salvador and what had been done to free Mr. Abrego Garcia from the notorious mega-prison there known as CECOT.
But that process also broke down and Judge Xinis quickly blasted the government for what she called its “willful and bad faith refusal” to adequately answer the questions. Just as she appeared to be losing patience, the Justice Department asked her for a pause in the question-asking process, suggesting there had been a diplomatic development that justified a seven-day delay.
The New York Times reported that around that time, officials at the State Department had sent a note to their counterparts in El Salvador inquiring about having Mr. Abrego Garcia released, but El Salvador’s president, Nayib Bukele, rejected the offer.
In the end, Judge Xinis granted the Justice Department’s request for a delay, but denied department lawyers when they asked her for a second weeklong pause. Last week, finally faced with having to answer questions about the case, department lawyers countered with their latest legal maneuver: an invocation of the state secrets privilege.
It was not the first time that the administration tried the same tactic in a deportation case.
In late March, the Justice Department invoked the state secrets privilege in an effort to avoid providing data to a federal judge in Washington about three charter planes that flew to El Salvador that month carrying Mr. Abrego Garcia and scores of other immigrants.
The judge in that case, James E. Boasberg, wanted the data in an effort to determine whether the government had flouted his order to turn the planes around. Judge Boasberg’s investigation into the White House’s compliance with his ruling was temporarily put on hold last month by the federal appeals court that sits over him.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.
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