WASHINGTON (AP) — The Trump administration’s claim that it can’t do anything to free Kilmar Abrego Garcia from an El Salvador prison and return him to the U.S. “should be shocking,” a federal appeals court said Thursday in a blistering order that ratchets up the escalating conflict between the government’s executive and judicial branches.
A three-judge panel from the 4th U.S. Circuit Court of Appeals unanimously refused to suspend a judge’s decision to order sworn testimony by Trump administration officials to determine if they complied with her instruction to facilitate Abrego Garcia’s return.
Judge J. Harvie Wilkinson III, who was nominated by Republican President Ronald Reagan, wrote that he and his two colleagues “cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.”
“This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time,” Wilkinson wrote.
The seven-page order amounts to an extraordinary condemnation of the administration’s position in Abrego Garcia’s case and also an ominous warning of the dangers of an escalating conflict between the judiciary and executive branches the court said threatens to “diminish both.” It says the judiciary will be hurt by the “constant intimations of its illegitimacy” while the executive branch “will lose much from a public perception of its lawlessness.”
When asked by reporters Thursday afternoon if he believed Abrego Garcia was entitled to due process, Trump ducked the question.
“I have to refer, again, to the lawyers,” he said in the Oval Office. “I have to do what they ask me to do.”
The president added: “I had heard that there were a lot of things about a certain gentleman — perhaps it was that gentleman — that would make that case be a case that’s easily winnable on appeal. So we’ll just have to see. I’m gonna have to respond to the lawyers.”
The Justice Department didn’t immediately comment on the decision. In a brief accompanying their appeal, government lawyers argued that courts do not have the authority to “press-gang the President or his agents into taking any particular act of diplomacy.”
“Yet here, a single district court has inserted itself into the foreign policy of the United States and has tried to dictate it from the bench,” they wrote.
The panel said Republican President Donald Trump’s government is “asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.”
“Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” Wilkinson wrote.
Earlier this month, the Supreme Court said the Trump administration must work to bring back Abrego Garcia. An earlier order by U.S. District Judge Paula Xinis “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,” the high court said in an unsigned order with no noted dissents.
The Justice Department appealed after Xinis on Tuesday ordered sworn testimony by at least four officials who work for U.S. Immigration and Customs Enforcement, the Department of Homeland Security and the State Department.
The 4th Circuit panel denied the government’s request for a stay of Xinis’ order while they appeal.
“The relief the government is requesting is both extraordinary and premature,” the opinion says. “While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.”
Wilkinson, the opinion’s author, was regarded as a contender for the Supreme Court seat that was ultimately filled by Chief Justice John Roberts in 2005. Wilkinson’s conservative pedigree may complicate White House efforts to credibly assail him as a left-leaning jurist bent on thwarting the Trump administration’s agenda for political purposes, a fallback line of attack when judicial decisions run counter to the president’s wishes.
Joining Wilkinson in the ruling were judges Stephanie Thacker, who was nominated by Democratic President Barack Obama, and Robert Bruce King, who was nominated by Democratic President Bill Clinton.
White House officials claim they lack the authority to bring back the Salvadoran national from his native country. Salvadoran President Nayib Bukele also said Monday that he would not return Abrego Garcia, likening it to smuggling “a terrorist into the United States.”
While initially acknowledging Abrego Garcia was mistakenly deported, the administration has dug in its heels in recent days, describing him as a “terrorist” even though he was never criminally charged in the U.S.
Attorney General Pam Bondi said Wednesday that “he is not coming back to our country.”
Administration officials have conceded that Abrego Garcia shouldn’t have been sent to El Salvador, but they have insisted that he was a member of the MS-13 gang. Abrego Garcia’s lawyers say there is no evidence linking him to MS-13 or any other gang.
The appeals court panel concluded that Abrego Garcia deserves due process, even if the government can connect him to a gang.
“If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order,” the opinion says.
Xinis also was skeptical of assertions by White House officials and Bukele that they were unable to bring back Abrego Garcia. She described their statements as “two very misguided ships passing in the night.”
“The Supreme Court has spoken,” Xinis said Tuesday.
Associated Press writer Will Weissert contributed reporting.
