Federal judge accuses White House of ‘bad faith’ in Kilmar Ábrego García case

The federal court that has found itself in a pitched battle with the executive branch over the summary removal of Salvadorian Kilmar Ábrego García despite a previous order against deportation has now accused the Trump administration of “bad faith” in the case.

US district judge Paula Xinis has given the Trump administration until 6pm ET on Wednesday to provide details to support its claims that it does not have to comply with orders to return the man to the US, where he was living and working in Baltimore, because of special privilege.

Xinis castigated the administration late on Tuesday saying it is ignoring court orders and obstructing the legal process.

“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,” Xinis wrote.

“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,” she added, giving the new deadline for information.

The US supreme court ordered the Trump administration nearly two weeks ago to facilitate Ábrego García’s return to the US from a notorious Salvadorian prison, rejecting the White House’s claim that it couldn’t retrieve him despite the administration having admitted previously in court that it had sent him out of the country by mistake.

Ábrego García, a native Salvadorian, and more than 200 Venezuelans were flown to El Salvador by the US authorities last month without due process and despite a federal court order for them not to leave the US and for any flights containing them that were in the air to turn around.

The supreme court and other federal courts have begun flexing their muscles to push back on Donald Trump’s efforts to defy judicial orders, escalating a hugely consequential battle over the rule of law.

The developing dynamic in recent weeks underscores how a constitutional crisis between the president with his executive branch and the courts is likely to be a push and pull between the government and judges that is simmering through the legal system and could very well break it.

Trump administration officials have pushed back in the case, arguing that it is up to El Salvador – though the president of El Salvador has also said he lacks the power to return Ábrego García. The administration has also argued that information about any steps it has taken or could take to return him is protected by attorney-client privilege laws, state secret laws, general “government privilege” or other secrecy rules.

Xinis on Tuesday said those claims, without any facts to back them up, reflected a “willful and bad faith refusal to comply with discovery obligations”.

Meanwhile three-judge panel on the fourth US circuit court of appeals scolded the administration last week, saying its claim that it can’t do anything to free Ábrego García “should be shocking”. That ruling came one day after another federal judge in Washington DC, James Boasberg, found probable cause to hold the Trump administration in criminal contempt of court for violating his orders to turn around planes carrying deportees to El Salvador in a different legal case.

And two other federal judges also on Tuesday extended temporary blocks on some deportations of Venezuelan migrants and signaled that Trump’s invocation of a 1798 law historically used in wartime to speed up their removal from the US may not survive judicial review.

Denver-based US district judge Charlotte Sweeney wrote in a ruling that Trump’s administration must give Venezuelan migrants detained in Colorado notice 21 days in advance before any removals from the US under the Alien Enemies Act and must inform them of their right to challenge their removal.

And at a court hearing in Manhattan, US district judge Alvin Hellerstein appeared inclined to require the administration to notify Venezuelans at least 10 days in advance before removing them under that 18th century law. Hellerstein said the administration must afford migrants due process, as required by the US constitution.

“This is not a secret court, an inquisition in medieval times. This is the United States of America,” Hellerstein said.

Hellerstein also said Trump’s 15 March proclamation invoking the law to fly the men to a prison in El Salvador may run afoul of the constitution’s eighth amendment protections against cruel and unusual punishment.

The Associated Press and Reuters contributed reporting