The Trump administration invoked the state secrets privilege Wednesday to avoid handing over documents in the legal battle over Kilmar Abrego Garcia, the man mistakenly deported to El Salvador, court records show.
Justice Department officials had long previewed they would do so, but a new order issued by U.S. District Judge Paula Xinis indicates the government formally invoked the privilege in a sealed filing earlier Wednesday.
“The Court requires formal briefing of the Defendants’ invocations of privilege, principally the state secrets and deliberative process privileges,” the judge wrote, referring to the sealed filing.
Xinis ordered both the government and Abrego Garcia’s lawyers to submit written briefs on the issue by Monday. The judge said she’ll hold an in-person hearing in her Maryland courtroom to discuss it May 16.
The schedule is the latest development in the legal battle over Abrego Garcia, who was removed to El Salvador in mid-March despite an immigration judge protecting him from being deported to the country.
The administration has accused Abrego Garcia of being an MS-13 gang member, a claim largely based on a confidential informant and a separate immigration court ruling. Abrego Garcia’s family rejects that he is affiliated with any gang.
Nearly a month ago, the Supreme Court ruled that the government must “facilitate” the man’s return.
That sparked a weeks-long battle in Xinis’s court as the administration contends it is unable to bring back Abrego Garcia and that he is no longer in the federal courts’ jurisdiction.
The battle has increasingly been playing out in private.
After a frustrated Xinis ordered the administration to hand over documents and submit officials for depositions, she suddenly changed course, agreeing to temporarily pause the aggressive discovery after the parties submitted a batch of filings under seal.
Without explanation, Xinis, an appointee of former President Obama, lifted the pause a week ago. Depositions of four Trump administration officials were set to take place by this Friday.
Now, the judge’s order indicates the government is seeking to withhold documents by deeming them state secrets.
It marks the second time the Trump administration has invoked the privilege in lawsuits challenging immigrants who were deported to El Salvador in March.
The administration previously invoked the privilege before U.S. District Judge James Boasberg, an Obama appointee who serves in the nation’s capital, as the judge mulled whether the government violated his now-lifted order to turn around deportation flights.
Separately, Xinis’s order sets a briefing schedule on a motion filed by a coalition of news organizations to unseal the recent batch of filings. Briefing is set to complete on May 27.
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