Judge in Abrego Garcia case blasts DOJ's inaction, orders officials to testify under oath

The federal judge overseeing the case of Kilmar Abrego Garcia took Justice Department attorneys to task over their inaction Tuesday, ordering government officials to testify under oath in order to resolve Abrego Garcia's wrongful detention.

Saying "The Supreme Court has spoken," U.S. District Judge Paula Xinis ordered expedited discovery -- in which officials are put under oath -- in order to "apply the law to the facts."

The judge told Justice Department lawyers that she was ordering expedited discovery "specifically to determine whether you are fighting the court order, my court orders, whether you intend to abide by the court orders."

"You made your jurisdictional arguments, you made your venue arguments," Judge Xinis told the DOJ attorneys. "You made your arguments on the merits. You lost. This is now about the scope of the remedy."

In her subsequent written order granting expedited discovery, Judge Xinis said the Trump administration remains obligated to "take steps available to them toward aiding, assisting, or making easier Abrego Garcia's release from custody in El Salvador."

"Defendants appear to have done nothing to aid in Abrego Garcia's release from custody and return to the United States," Xinis wrote, saying that discovery is necessary in light of the Trump administration's refusal to disclose "what it can" or present justification for what they cannot disclose.

Judge Xinis said Abrego Garcia is "indisputably" entitled to the due process the government has denied him and to be free from the risk "of grave injury" resulting from his detention in a notorious Salvadoran prison.

The judge is ordering DOJ attorneys to provide discovery requests from Abrego Garcia's attorneys by April 21. She also ordered Abrego Garcia's attorneys to provide notice of depositions to the four government officials who have submitted status updates to the court.

The depositions, according to Xinis, must be completed by April 23, with expedited discovery expected to be concluded no later than April 28.

Abrego Garcia, who the Trump administration alleges is a member of the criminal gang MS-13, is entering his second month in an El Salvador mega-prison after he was deported there on March 15 despite being issued a 2019 court order barring his deportation to his home country due to the fear of persecution.

In response to Judge Xinis' order for expedited discovery, DOJ attorney Drew Ensign said he doesn't believe discovery is appropriate because "this is a legal dispute."

Regarding the varying interpretations of what it means for the government to "facilitate" Abrego Garcia's release, Ensign asked Judge Xinis to clarify, for discovery, what "facilitate" means -- to which Xinis said she will issue an order "which expands" her view of the definition of "facilitate."

"Until this matter is over and a final order is issued, we will operate within the parameters of that ruling, and it is consistent with the Supreme Court, and it is consistent with the plain meaning of the term," said Judge Xinis. "And it is also consistent with the common practice in immigration law, when an individual is wrongfully removed from the United States."

Attorneys for Abrego Garcia said they agree with the court's plan.

Fifteen minutes before the hearing, DHS Acting General Counsel Joseph Mazarra said in the Trump administration's daily status report to the court that the administration is "prepared to facilitate Abrego Garcia's presence in the United States in accordance with those processes if he presents at a port of entry."

However, Mazarra said, since Abrego Garcia is "being held in the sovereign, domestic custody" of El Salvador, DHS does not have the authority to forcibly extract him "from the domestic custody of a foreign sovereign nation."

If Abrego Garcia does present at a port of entry, he would become subject to detention by DHS, due to his alleged membership in the criminal gang MS-13, said Mazarra.

"In that case, DHS would take him into custody in the United States and either remove him to a third country or terminate his withholding of removal because of his membership in MS-13, a designated foreign terrorist organization, and remove him to El Salvador," Mazarra said.

The development came a day after a highly anticipated Oval Office meeting in which the president of El Salvador said he would not return Abrego Garcia to the United States.

DHS Assistant Secretary of Public Affairs Tricia McLaughlin told ABC News' Jay O'Brien Tuesday afternoon that Abrego Garcia's deportation to El Salvador was the result of a "clerical error."

"He should have been sent to a detention center in Mexico, Nicaragua, Egypt," McLaughlin said.

Trump administration officials say Abrego Garcia, who escaped political violence in El Salvador 2011, is a member of the criminal gang MS-13, but to date they have provided little evidence of that assertion in court.

Abrego Garcia, who has been living in Maryland with his U.S. citizen wife and 5-year-old child, is being held in El Salvador's notorious CECOT prison, along with hundreds of other alleged migrant gang members, under an arrangement in which the Trump administration is paying El Salvador $6 million to house migrants deported from the United States as part of President Donald Trump's immigration crackdown.

Attorney General Pam Bondi, in an Oval Office meeting Monday with President Trump and the visiting El Salvador president, said that Abrego Garcia's return is "up to El Salvador."

"If El Salvador ... wanted to return him, we would facilitate it," she said.

Asked by reporters about Abrego Garcia, President Bukele responded, "I don't have the power to return him to the United States."

In a motion filed Tuesday in advance of the hearing, lawyers for Abrego Garcia argued that the Trump administration has not taken any steps to comply with the orders to facilitate his release.

"There is no evidence that anyone has requested the release of Abrego Garcia," they wrote in the filing.

The attorneys also took issue with the government's interpretation of the word "facilitate," which the administration has argued in court filings is limited to removing any domestic obstacles that would impede the return of Abrego Garcia to the United States.

Interpreting the term in that manner, Abrego Garcia's attorneys argued, would render "null" the Supreme Court's order that the government facilitate his release.

"To give any meaning to the Supreme Court's order, the Government should at least be required to request the release of Abrego Garcia. To date, the Government has not done so," they wrote in their motion.

After Judge Xinis ordered the government to "facilitate and effectuate" Abrego Garcia's return, the Supreme Court last week unanimously ruled that Judge 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 intended scope of the term 'effectuate' in the District Court's order is, however, unclear, and may exceed the District Court's authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs," the Supreme Court wrote, which the Trump administration has interpreted as prohibiting the district court from ordering the executive branch to take any action that would violate the separation of powers.

Judge Xinis subsequently amended her ruling to remove the word "effectuate," leaving the order to "facilitate."

In an interview Monday evening with ABC News' Linsey Davis, an attorney for Abrego Garcia said he hopes Tuesday's hearing "lights a fire under the government to comply with the Supreme Court's order" to facilitate Abrego Garcia's release.

"What we're asking [of Trump] is exactly what the Supreme Court told him," attorney Benjamin Osorio said. "I personally have worked with DHS before to facilitate the return of several other clients who were deported and then won their cases at circuit court levels or at the Supreme Court, and ICE facilitated their return."

"So we're not asking anybody to do anything illegal," Osorio said. "We're asking them to follow the law."

"It feels a little bit like the Spider-Man meme where everybody's pointing at everybody else," Osorio said of Bukele's claim that he doesn't have the power to return Garcia. "But at the same time, I mean, we are renting space from the Salvadorans. We are paying them to house these individuals, so we could stop payment and allow them to be returned to us."

Asked if he is confident that Abrego Garcia will be returned, Osorio said he was concerned but hopeful.

"I'm worried about the rule of law, I'm worried about our Constitution, I'm worrying about due process," he said. "So at this point, I am optimistic to see what happens in the federal court hearing."