Like Nailing Jello To A Wall

The government’s cynical lies in court are unraveling, and possible perjury charges now loom

Photo of Judge Paula Xinis courtesy of the Washington Post

The Kilmar Abrego García case was back before Judge Paula Xinis yesterday. This remains an extremely important, high profile case for a few key reasons, and it’s helpful to review those for context.

This case matters because it tests the limits of what the White House will try to do against what the courts will push back on when it comes to deportations.

The record here is very clear on one key point: Abrego (the surname he prefers) was mistakenly deported to El Salvador. The government admitted his deportation was an “administrative error.” But rather than undo it as quickly as it could, it doubled down and refused to comply.

Part of this was because of the hole the regime had dug itself. Attorney General Pam Bondi labeled Abrego a criminal and swore he would never come home. Trump even held up images of Abrego’s knuckles with “MS 13” badly photoshopped on them.

The legal battle culminated in a Supreme Court ruling that went 9–0 against the White House. To get a 9–0 opinion these days is nearly unheard of, yet even these justices, dominated as they are by radicals, unanimously ordered the government to facilitate the return of Abrego to the U.S.

And yet, this was still not the end of it. The White House continued to drag its feet and delay its compliance, to the utter disbelief and exasperation of Judge Xinis and everyone monitoring the case. When the government finally caved and brought Abrego home, it was to face laughably trumped-up criminal charges of “human smuggling” based on a three-year-old traffic stop.

Everything about this case has been suspect from the get-go, with the White House using Abrego’s liberty as a testing ground for its own abuse of power. That’s why the efforts of the federal judiciary to keep this rogue regime accountable in this case matter so much. In yesterday’s hearing, Judge Xinis aptly described her frustration, saying it was “like nailing jello to a wall.”

Her grilling of the government went on for three hours, but she established some important points for the record, even as the White House thrashed about in every direction trying to defy the will of the courts.

The motion to dismiss

The parties were back in Xinis’s courtroom yesterday on the government’s motion to dismiss. At issue is a civil case brought by Abrego’s family over his improper deportation and mistreatment. The government came to court to argue that the entirety of that complaint should be dismissed because Abrego is now back in the U.S.

And isn’t that what they wanted?

Judge Xinis wasn’t impressed. There remains a serious question over whether Abrego has been returned to his pre-deportation status. In fact, he now sits in a jail cell in Tennessee facing criminal charges which, as I’ll discuss below, appear to have been concocted as a face-saving measure and to make things as miserable as the government could for Abrego, all apparently out of sheer spite.

In fact, the Trump White House has asserted that if Abrego is released on bail, then it still intends to deport him—this time to an as-yet unnamed third country. Never mind they’ve already charged him criminally and would send him away without completing that case against him, underscoring how meritless it is.

An incredulous Judge Xinis did not accept that no actual plan for his rendition to a third country, or deportation back to El Salvador, yet exists. She ordered an official with knowledge of those plans to appear before her on Thursday.

Isolated mistake, or political pawn?

Judge Xinis also laid into the government’s lawyer for arguing Abrego’s initial deportation was an “isolated mistake” it had tried to remediate.

“For three months, your clients told the world they weren’t going to do anything to bring him back,” Judge Xinis said to the attorney, interrupting her.

That is quite correct. At a press conference in April, Attorney General Pam Bondi had been adamant Abrego would never return to U.S. soil. “He is not coming back to our country. President Bukele said he was not sending him back. That’s the end of the story,” Bondi told reporters, referring to the Salvadoran president. “If he wanted to send him back, we would give him a plane ride back. There was no situation ever where he was going to stay in this country. None, none.” (More on that “end of the story” on Bukele’s part later.)

Press Secretary Karoline Leavitt was also adamant Abrego would never return. “To the Democrat [sic] Party who thinks they are going to bring this foreign terrorist back to the United States of America to live a peaceful and happy life, that is never going to happen,” Leavitt told Fox News.

Leavitt also denied that his initial deportation and imprisonment in CECOT was an administrative error. “We did not make a mistake. We have always maintained this was an individual who needed to be deported from our country.”

Judge Xinis likely understood that the idea that the government really tried super duper hard to get Abrego home was just more gaslighting from its lawyers, so she didn’t let up.

The bogus criminal investigation and indictment

The Trump regime is singularly incapable of admitting error with any kind of grace or humility. As I wrote about in June, at the first Abrego hearing the government’s attorney, Erez Reuveni, admitted Abrego had been sent to El Salvador by mistake. The White House chastised Reuveni for not being more aggressive at the hearing, then the Department ultimately fired him after he refused to allege in an appellate brief that Abrego was a “terrorist.”

“I didn’t sign up to lie,” responded Reuveni.

Rather than work to undo the obvious mistake it had even admitted to, the Justice Department went full crazy to ensure it didn’t so much as appear to have backed down. It began assembling a fake human smuggling case against Abrego over a three-year-old traffic stop and charged him with it the moment he got back.

So how bad was this mad scramble to hit Abrego with some kind of criminal charge?

To build its case, as the New York Times reported, the government promised leniency in immigration proceedings to three “witnesses” to testify against Abrego, including one hardened criminal who actually was engaged in human smuggling. So much for its concern about the public’s safety.

That “witness,” according to defense lawyers, “has been deported five times and has two prior felony convictions, and yet the government has granted him deferred action on deportation in exchange for his testimony, early release from prison to a halfway house, and is likely to grant him work authorization.”

All so the government wouldn’t be embarrassed and humiliated about losing its court fight.

A top federal prosecutor in the Department’s Nashville office, with 15 years of experience, resigned his position rather than sign on to the bogus indictment. Pretty big red flag.

And a magistrate judge looking at the charges found extensive problems. Judge Barbara Holmes, who ordered Abrego to be released on bail, noted the allegations against him came from “at least three, if not four or more, levels of hearsay” and carried “no weight” legally.

“That the level of hearsay cannot even be determined renders the evidence patently unreliable,” Judge Holmes added.

She further noted the charges included dubious claims about Abrego’s actions bordering on “physical impossibility,” given where he actually was living at the time of the alleged activity.

The timeline doesn’t make sense

For her part, in the hearing yesterday Judge Xinis wanted to better understand exactly when the government began to concoct its plan to criminally investigate and indict Abrego—because things weren’t adding up.

Judge Xinis wanted to know how Abrego’s indictment occurred even while the Trump administration claimed it was powerless to secure his release from El Salvador.

“How could you, six days later, tell me you had no power to produce him when you’d already secured an indictment against him?” Xinis asked. “How could you secure an indictment against someone you had no power to produce? It’s illogical.”

The government’s lawyer, Bridget O’Hickey, initially said the White House was still in negotiations with El Salvador at the time. She then contradicted sworn testimony in the criminal case in Tennessee indicating the criminal investigation into Abrego didn’t begin until April 28, more than a month after his initial deportation. O’Hickey, rather astonishingly, claimed the investigation actually began earlier than that date.

I suppose O’Hickey had to improvise to make the timeline make any sense. But you really don’t want to make things up on the fly before a judge, and I can imagine Judge Xinis’s eyes narrowing at this statement.

“Now I have real concerns, as if I haven’t for the last three months,” Xinis said.

Xinis further grilled her on the timeline, and O’Hickey had to walk back her assertion.

“I want you to be really careful with me,” Xinis said—something you never want to hear a judge say. “Is what you’re saying that you do not have any evidence to the contrary that this investigation began on the 28th of April?”

“I’m unfamiliar with the timeline, your honor,” O’Hickey pathetically conceded.

Here’s a sample of how things went for O’Hickey, who was experiencing her first day on the case and was in the process of destroying her own professional reputation. On the question of whether the criminal charges against Abrego were in any way related to the order to return him, she was both adamant and wholly unprepared:

O’Hickey: “Your honor, he was not indicted for the purpose of bringing him back. He was indicted because he was under investigation for those criminal charges.”

Xinis: “Did it play any purpose in those negotiations?”

O’Hickey: “I can’t make any representation on that.”

Xinis: “Can’t, or won’t?”

O’Hickey: “I don’t believe I can.”

Welcome to the Trump circus, Ms. O’Hickey.

They had the power to bring him home, all along

This next fact didn’t come up in the Xinis hearing, but I’m sure the judge is going to take strong interest in it because she, like everyone else, wants to know why the government so blatantly defied her order to facilitate Abrego’s return.

The government has consistently claimed, under its agreement with El Salvador, that the U.S. was powerless to compel the release of prisoners from that country. That was its position before Judge Xinis, and that is what it had said in a sworn declaration by Michael G. Kozak, the Senior Bureau Official with the Bureau of Western Hemisphere Affairs at the State Department, in an appearance before Judge James Boasberg.

But those assertions and that declaration contradict a statement El Salvador itself made to the United Nations. This came to light in a filing in a separate case in federal court in D.C. involving another group of prisoners held in CECOT. Their lawyers filed a U.N. Report in which El Salvador stated that while it “facilitated the use of the Salvadoran prison infrastructure,” the “jurisdiction and legal responsibility” over the prisoners remained “exclusively” with the U.S.

As Chris Geidner noted in his newsletter, Judge Boasberg had flagged that very issue before, noting that his ruling in the first Alien Enemies Act case had presumed the U.S. government was truthful in its representations about its lack of power to force El Salvador to return prisoners sent there.

Judge Boasberg in fact had warned expressly that any official—such as Kozak—who knowingly makes false sworn statements “subjects himself to perjury prosecution.”

So either Kozak and other officials lied, or the El Salvadorans lied, about how much authority El Salvador really had.

It’s time for some of these U.S. officials involved to lawyer up.