Trump officials' defiance over Abrego Garcia's deportation is 'shocking,' appeals court says

Judge J. Harvie Wilkinson III, who was nominated by Republican President Ronald Reagan, wrote that he and his two colleagues "cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos."

"This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time," Wilkinson wrote.

The panel said Republican President Donald Trump's government is "asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order."

"Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear," Wilkinson wrote.

Earlier this month, the Supreme Court said the Trump administration must work to bring back Abrego Garcia. An earlier order by U.S. District Judge Paula 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 high court said in an unsigned order with no noted dissents.

The Justice Department appealed after Xinis on Tuesday ordered sworn testimony by at least four officials who work for U.S. Immigration and Customs Enforcement, the Department of Homeland Security and the State Department.

The 4th Circuit panel unanimously denied the government's request for a stay of Xinis' order while they appeal. Its opinion says the executive and judicial branches of the federal government "come too close to grinding irrevocably against one another in a conflict that promises to diminish both."

"This is a losing proposition all around," they wrote. "The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions."

Wilkinson, the opinion's author, was regarded as a contender for the Supreme Court seat that was ultimately filled by Chief Justice John Roberts in 2005. Wilkinson's conservative pedigree may complicate White House efforts to credibly assail him as a left-leaning jurist bent on thwarting the Trump administration's agenda for political purposes, a fallback line of attack when judicial decisions run counter to the president's wishes.

Joining Wilkinson in the ruling were judges Stephanie Thacker, who was nominated by Democratic President Barack Obama, and Robert Bruce King, who was nominated by Democratic President Bill Clinton.

White House officials claim they lack the authority to bring back the Salvadoran national from his native country. Salvadoran President Nayib Bukele also said Monday that he would not return Abrego Garcia, likening it to smuggling "a terrorist into the United States."

While initially acknowledging Abrego Garcia was mistakenly deported, the administration has dug in its heels in recent days, describing him as a "terrorist" even though he was never criminally charged in the U.S.

Attorney General Pam Bondi said Wednesday that "he is not coming back to our country."

Administration officials have conceded that Abrego Garcia shouldn't have been sent to El Salvador, but they have insisted that he was a member of the MS-13 gang. Abrego Garcia's lawyers say there is no evidence linking him to MS-13 or any other gang.

The appeals court panel concluded that Abrego Garcia deserves due process, even if the government can connect him to a gang.

"If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order," the opinion says.

Xinis also was skeptical of assertions by White House officials and Bukele that they were unable to bring back Abrego Garcia. She described their statements as "two very misguided ships passing in the night."

"The Supreme Court has spoken," Xinis said Tuesday.