A Thoroughly Unsatisfying Result
U.S. District Judge Stephanie Gallagher just unsealed this morning her Nov. 14 opinion in the case of “Cristian,” the 20-year-old Venezuelan man wrongfully deported under the Alien Enemies Act in violation of an existing court-approved settlement agreement.
As in the Abrego Garcia case, Gallagher had ordered the Trump administration in April to “facilitate” Cristian’s return to the United States from El Salvador’s notorious CECOT prison. The government stonewalled for months, filing frequently delinquent status reports that provided little information and no real assurance that it was making a good faith effort to comply with her order.
After Cristian and the other CECOT prisoners were repatriated to Venezuela — the country from which he was seeking asylum in the United States — his lawyers lost contact with him. That means one of two things, Gallagher wrote in her newly unsealed opinion (emphasis mine):
It is possible, at this point, that Cristian has decided to forego a return to the United States and has voluntarily absented himself from contact with his counsel. It is equally possible that Cristian has been the victim of the anticipated violence that caused him to seek asylum in the United States in the first instance.
In perhaps the harshest language of her opinion, Gallagher wrote that “it is clear that [the Trump administration] knowingly played a role in Cristian’s landing in the country from which he had sought asylum.”
If the prospect of an asylum-seeker being cast back to the wolves wasn’t jarring enough, Gallagher’s opinion today declined to find the Trump administration in contempt of court for its conduct in the case.
While Gallagher didn’t dispute the government’s lack of good faith or its desultory efforts to abide by the terms of her orders, she ultimately concluded that criminal contempt was overkill: “While this Court shares Class Counsel’s frustration with what appears to be lack of good faith government efforts at compliance with this Court’s order, it cannot find, on the particular facts of this case, the factors needed to find probable cause for criminal contempt.”
Gallagher found the late and paltry status reports from the government to be too ticky tacky a violation of her order to warrant criminal contempt, and she attributed the lack of good faith efforts in seeking Cristian’s return not the DHS but to the State Department, which was not a defendant in the case and therefore beyond her reach for a contempt finding:
Of course, in other times, one might assume that a federal agency not specifically named in a case would still use its best efforts to effectuate its sister agencies’ compliance with a valid order from a federal court. This Court certainly hoped, in entering the April 23 Order, that events would unfold in that manner and that the federal government as a whole would undertake compliance efforts. Its hopes were dashed.
It was cold comfort that Gallagher left intact her order that the Trump administration must facilitate Cristian’s return to the United States … if he ever resurfaces.
The Never-Ending Abrego Garcia Saga
The Trump administration spent another day in court stonewalling U.S. District Judge Paula Xinis of Maryland, defying her explicit order to put on a government witness who could testify with direct knowledge of its efforts to deport the much-abused Kilmar Abrego Garcia to a third country. I was at the courthouse and wrote a full report on that aspect of the hearing.
Separately, on the merits of the case, the Trump administration seems increasingly hobbled by its inability to produce any evidence that a final order of removal was ever issued for Abrego Garcia. Xinis has all but concluded that a final order of removal simply never existed, and her pending decision may well turn on that omission, as Politico’s Josh Gerstein reports.
The bitter irony is that the absence of a final order of removal means Abrego Garcia’s wrongful deportation to El Salvador in March was doubly unlawful. We already knew that it was in violation of an immigration judge order that he not be removed to El Salvador specifically, but it now appears likely there was no legal basis to remove him anywhere at all.
Halligan Does a Double Reverse Somersault in Comey Case
One day after prosecutor repeatedly told a federal judge in open court that the grand jury in the political prosecution of James Comey had not reviewed the final two-count indictment in the case, U.S. Attorney Lindsey Halligan reversed course in a new filing that insisted the grand jury had in fact signed off on the indictment.
Citing the transcript of the presentment proceeding in court, Halligan used almost comical passive voice and misdirection in the filing — titled “Government’s Notice Correcting The Record” — to execute her double reverse somersault, without ever owning the statements from prosecutors in court.
Not at All Sure What to Make of This
I’m sure Morning Memo will be coming back to the question of whether Deputy Attorney General Todd Blanche is criminally investigating U.S. Pardon Attorney/Weaponization Working Group czar/Special Attorney Ed Martin, but for now here are the best of the many, many reports that emerged yesterday on this very curious new wrinkle:
- ABC News: DOJ, FBI probing top Trump administration officials over investigations of president’s adversaries: Sources
- CNN: Justice Department is investigating handling of Adam Schiff mortgage fraud probe led by Ed Martin and Bill Pulte
- NBC News: A federal grand jury is investigating the handling of the Adam Schiff criminal probe
- NYT: Justice Dept. Appears to Be Examining Potential Leaks in Schiff Inquiry
- WSJ: Justice Department Probes Trump Allies’ Conduct in Schiff Probe
Good Read
Don Moynihan: How the FBI Became the Face of Deprofessionalization
Coda
In the flurry of unusual prosecutions in DC during Trump’s initial surge of federal law enforcement and the national guard into the District, one case stood out. After a federal grand jury refused to indict Kevontae Stewart on a weapons charge, the Trump DOJ took the case to a D.C. Superior Court grand jury, secured an indictment, and then brought that indictment back to federal court. The federal magistrate judge balked at the unusual maneuver and ultimately refused to accept the indictment.
The Trump DOJ then asked U.S. District Judge James Boasberg to overturn the magistrate’s decision, and yesterday Boasberg sided with the government. In an opinion that was solicitous of the magistrate and conceded it was a close call, Boasberg concluded that the government had the better argument for which statutory scheme applied, favoring the D.C. Code over the Federal Rules of Criminal Procedure.
Coast Guard: Fine, Swastikas and Nooses ARE Bad
The Coast Guard swiftly reversed course and reclassified the swastika and the noose as prohibited hate symbols, after a WaPo report that it had downgraded them to just “potentially divisive” symbols.
Not Something You See Every Day
When Rep. Chrissy Houlahan (D-PA) filed a complaint with Capitol Police about President Trump issuing death threats against Democratic members of Congress, she had to complete a form that included a field for identifying who made the threat. Houlahan simply filled in “The President,” she told Greg Sargent.
Thread of the Day
On George Washington, President Trump, and his calls for Democratic members of Congress to be put to death:
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