Judge says DOJ’s explanation for state secrets privilege in Abrego Garcia case ‘insufficient’

The federal judge overseeing the case of Kilmar Abrego Garcia, the man mistakenly deported to El Salvador, blasted the Trump administration Friday for not giving her enough material to decide whether it can invoke the state secrets privilege.

U.S. District Judge Paula Xinis said a declaration submitted by Secretary of State Marco Rubio, which seeks to avoid handing over certain documents by citing national security concerns, was “insufficient” and the government needed to show its work as to why the privilege applies.

“This is basically take my word for it,” Xinis said, adding that the government may ultimately succeed, but there’s “not enough there” yet.

All sides agreed that some progress has been made, but the proceeding turned fiery at times as Xinis sparred with Deputy Assistant Attorney General Jonathan Guynn, who at one point compared the discovery battle to “hand-to-hand combat.”

“I think there’s a lot more meat on the bone in this declaration than you’re giving credit for,” he said.

Over the objections of Abrego Garcia’s lawyers, who urged the judge to swiftly move ahead, Xinis appeared inclined to give the government an opportunity to supplement Rubio’s declaration before ruling whether the privilege is valid.

The judge said she’d issue a written ruling after a sealed portion of the hearing.

Friday’s fiery proceeding came more than a month after the Supreme Court ruled the administration must “facilitate” Abrego Garcia’s return, whom Trump accuses of being an MS-13 gang member. His family denies the allegation.

Abrego Garcia entered the United States illegally nearly 15 years ago but was protected from being deported to El Salvador under an immigration judge’s ruling. Despite that order, immigration authorities swiftly deported the man to the country after arresting him in mid-March.  

Xinis, an appointee of former President Obama who serves in Greenbelt, Md., had ordered the administration to turn over documents and make four officials available for depositions as the judge investigates whether the government has complied with the Supreme Court’s ruling.

“We think we’ve provided significant information as to the answers to those questions,” Guynn told the judge Friday, insisting the administration has complied. He also gave an update on Abrego Garcia’s status, saying he was healthy and gaining weight.

But Xinis called the three completed depositions a “goose egg” and sympathized with Abrego Garcia’s lawyers that the administration is stonewalling.

“I don’t want to tell you how long it took my law clerks to count up all the ‘I don’t knows,’” Xinis quipped.

Many details about the dispute remain under seal, but Friday’s hearing provided new information about the current status.

Andrew Rossman, one of Abrego Garcia’s lawyers, indicated Friday they have received 164 documents to date from the government, 132 of which are photocopies of court filings and Rossman’s discovery requests.

“They’ve told us nothing. Zero. Nothing about the steps they’ve taken,” said Rossman.

Guynn said no documents are being withheld solely based on the state secrets privilege. He said most of the material involves the deliberative process privilege, which allows the government to protect certain information showing an agency’s internal decisionmaking, and other issues.

“The Supreme Court anticipated that we would have this discovery dispute,” Guynn said.