In Trump Immigration Cases, It's One Thing in Public, Another in Court
During his testimony on Capitol Hill earlier this month, Secretary of State Marco Rubio took a swipe at Senator Chris Van Hollen, falsely accusing him of having had 'a margarita' with Kilmar Abrego Garcia—one of the Maryland Democrat's constituents, who was mistakenly sent to an El Salvador megaprison more than two months ago and who remains there despite the Supreme Court ordering the Trump administration to facilitate his release.
'That guy is a human trafficker, and that guy is a gangbanger … and the evidence is going to be clear,' Rubio said of Abrego Garcia, repeating claims that have never been proved in court.
'He can't make unsubstantiated comments like that!' Van Hollen shouted over the pounding gavel of the Republican chairman of the Senate Committee on Foreign Relations. 'Secretary Rubio should take that testimony to the federal court of the United States, because he hasn't done it under oath.'
Van Hollen's frustration centered on the frequent gap between what the Trump administration says about its mass-deportation campaign in court, where it is required to tell the truth, and what officials say in public as they attempt to blunt criticism of their immigration crackdown. By playing up the alleged criminality of deportees at every opportunity, they deflect attention from the more mundane issue of whether the government is following the law.
[Read: A loophole that would swallow the Constitution]
When the administration's attorneys appear before the court, and top officials are required to provide sworn testimony, the administration is more restrained and tethered to facts. Department of Justice attorneys insist that the administration is following judicial orders in good faith. They recognize errors made by Immigration and Customs Enforcement, even if they attempt to diminish their significance. And they provide data and logistical details about ICE deportations that they do not otherwise release voluntarily.
Outside of court, President Donald Trump and his top aides depict deportees as terrorists and gang leaders regardless of whether they've been convicted of a crime. They admit no mistakes. And if judges rule unfavorably, they denounce them as 'communists' and 'lunatics' and suggest that they won't respect their rulings.
Trump and his top officials have dispensed with the usual conventions regarding public comment on pending cases. This has been a theme of Trump's litigation approach for years—from the Manhattan hush-money trial to the January 6 investigations—and the top officials running his current administration have taken his cue. The political fight matters more than the legal one, one senior official told me.
'Instead of using the old playbook of saying 'no comment' because there's pending litigation, you have top officials that are using the avenues they have to fight back and speak directly to the American people about what this administration is trying to do,' said the official, who agreed to discuss the approach candidly on the condition that I would not publish their name.
The official said the strategy is designed to challenge judges who are 'thwarting the duly elected president from implementing his policies.' Although issuing public statements about ongoing litigation 'is unusual,' the person said, 'that's exactly what everyone who is a supporter of the president is looking for from his senior team.'
The White House spokesperson Abigail Jackson defended that strategy. 'We are confident in the legality of our actions and do not apologize for acting to protect the American people,' she told me in a statement.
But the approach has at times left Department of Justice lawyers stuck between what Trump officials say publicly and their professional and legal obligations to make truthful statements in court. When a senior ICE official said in sworn testimony in March that Abrego Garcia had been deported to El Salvador because of an 'administrative error,' the Justice Department attorney who initially represented the Trump administration, Erez Reuveni, relayed that characterization to the court. When asked why the administration hadn't taken steps to correct the error and bring Abrego Garcia back, Reuveni said his client—the Trump administration—hadn't provided him with answers.
The top Trump aide Stephen Miller soon began insisting publicly that Abrego Garcia's deportation was not, in fact, an error—the opposite of what the government admitted in court. Vice President J. D. Vance claimed that Abrego Garcia is a 'convicted MS-13 gang member with no legal right to be here,' even though he has no criminal convictions in the United States or El Salvador. Attorney General Pam Bondi cast the error as missing 'an extra step in paperwork' and said that Abrego Garcia should not be returned.
Reuveni was fired. Bondi said he had failed to 'zealously advocate' for the government. 'Any attorney who fails to abide by this direction will face consequences,' she told reporters.
Trump and his top aides have made statements outside court that have undermined the legal positions staked out by government attorneys—at times with more candor than his lawyers. The president acknowledged during an interview last month with ABC News, for instance, that he could bring Abrego Garcia back by placing a phone call to the Salvadoran president.
[Read: How the Trump administration flipped on Kilmar Abrego Garcia]
Simon Sandoval-Moshenberg, an attorney for Abrego Garcia, told me Trump and his top aides 'really are saying whatever they want to say in public, and then after the fact, trying to figure out what that means for their litigation, instead of the other way around, which is where they figure out what they want to do in their litigation and then they mold their public statements to that.'
U.S. District Judge Paula Xinis, who presides over the Abrego Garcia case, said during a recent hearing that Trump's claim was clearly at odds with his attorneys' contention that they could not compel a foreign government to release Abrego Garcia. Xinis also noted social-media statements by Department of Homeland Security officials saying Abrego Garcia will never be allowed to return to the United States. The judge said it sounded like an 'admission of your client that your client will not take steps to facilitate the return.'
Jonathan Guynn, the government's attorney, said Trump's statement needed to be read with 'the appropriate nuance' and it was not 'inconsistent with our good-faith compliance.'
'What world are we living in?' Xinis said in frustration as Guynn ducked her questions. 'What sort of legal world are we living in?'
Similarly, Trump officials have depicted Venezuelans sent to the prison in El Salvador as invaders and terrorists to justify the administration's attempt to use the Alien Enemies Act of 1798. But the majority have no criminal convictions in the United States, and at least 50 of the roughly 240 sent to El Salvador entered the United States legally and did not violate U.S. immigration law, according to a new analysis by the Cato Institute.
When U.S. District Chief Judge James E. Boasberg asked about a statement by Homeland Security Secretary Kristi Noem—who said the megaprison in El Salvador was one of the tools it planned to use to scare migrants into leaving the United States—he questioned whether it was an admission that the U.S. government has control over the fate of the deportees it sends there. Another Justice Department attorney similarly argued that the statement lacked sufficient 'nuance.'
'Is that another way of saying these statements just aren't true?' Boasberg said. When Boasberg asked if Trump was telling the truth when he said he could get Abrego Garcia released with a phone call, the administration's attorney, Abhishek Kambli, said the president's statement should not be treated as a fact, but as an expression of 'the president's belief about the influence that he has.'
Jeff Joseph, the president-elect of the American Immigration Lawyers Association, told me that Trump attorneys are twisting themselves into rhetorical knots because the administration officials conducting the deportation campaign are doing whatever they want, and coming up with a legal rationale later.
The government attorneys have 'to sort of post hoc rationalize what they're doing,' Joseph said, 'but they're running afoul of the fact that it's actually against the law, and they just can't explain it.'
'They can't just come in and admit that they broke the law,' he added, 'so they have to come up with some sort of paltering way of addressing it.'
The Abrego Garcia ruling and the Alien Enemies Act litigation have left legal scholars warning of a constitutional crisis. But a more tangible effect, attorneys told me, has been the erosion of the 'presumption of regularity'—the benefit of the doubt given to the government in court proceedings. It's based on the idea that federal officers and attorneys are operating in good faith, and not trying to achieve political goals through acts of subterfuge.
As judges see the administration saying one thing in public and another in court, they have started to treat the government's claims with more skepticism and, sometimes, with outright suspicion of criminal contempt. A recent Bloomberg analysis found that the Trump administration has been losing the majority of its immigration-related motions and claims, regardless of whether the judges overseeing their cases were appointed by Democrats or Republicans.
[Adam Serwer: 'A path of perfect lawlessness']
The White House is focused on political wins, and it has pushed back even harder at judicial oversight as the losses pile up. In a case challenging its attempts to send deportees to third countries if their own nations won't take them back, U.S. District Judge Brian E. Murphy ruled in March that the government had to give deportees time to challenge the government's attempts to send them to potentially dangerous places. Despite the order, Trump officials tried last week to deport a group of men from Laos, Vietnam, Cuba, and other nations to South Sudan.
Murphy ruled that the flight violated his previous order mandating due process—but the Department of Homeland Security still convened a press conference to recite the criminal records of the deportees, calling them 'uniquely barbaric monsters.' The White House made an emergency appeal of Murphy's ruling directly to the Supreme Court on Tuesday, bypassing the First Circuit Court of Appeals.
Adam Cox, a constitutional law professor at NYU, told me that the Trump administration's approach marks 'a sweeping transformation of past practices.' But he said it has also affirmed the importance of the lower courts to function as a powerful fact-finding body at a time when other oversight mechanisms are weakened or under attack. The courts' ability to compel sworn testimony is crucial to helping the public sort through political rhetoric to understand what's actually true.
'A lot of the focus of public debate around courts and politics has been (understandably) focused on the Supreme Court and big legal rulings,' Cox wrote to me. 'But recent months have brought a nice reminder of just how important the well-developed fact-finding mechanisms of federal trial courts can be.'
Article originally published at The Atlantic
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