The motion for sanctions by a deported — and now returned — Salvadoran national, Kilmar Abrego Garcia, underscores that the Trump administration’s aggressive immigration policies could draw courts’ wrath — and punishment. 

Mr. Abrego Garcia’s lawyers argue to a federal judge in Maryland, Paula Xinis, that for nine weeks, “the Government defied this Court’s order, affirmed by a unanimous Supreme Court, to facilitate the return of Kilmar Abrego Garcia to the United States following his illegal removal to El Salvador.” Mr. Abrego Garcia cites the government’s “repeated, flagrant” violations of the law.

Now Mr. Abrego Garcia seeks sanctions against the Trump administration for “flouting” its discovery obligations. His lawyers contend that the government’s behavior “has been egregious, defined by open refusal to produce any evidence of its professed compliance and the meritless assertion of an array of purported privileges to shield its actions from scrutiny.” 

The government this week effected the return of Mr. Abrego Garcia from a Salvadorian prison and has charged him in Tennessee with two counts of human trafficking. He has also, in a separate motion, moved for his liberty pending trial. That followed months of litigation in respect of Mr. Abrego Garcia’s status and whether he could be recalled from El Salvador.

The Supreme Court ordered 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.”

When the government demurred — it cited the state secrets privilege — Judge Xinis ordered expedited discovery “to ascertain what, if anything,” the government has “done to ‘facilitate’ Abrego Garcia’s release from custody.” His lawyers assert that “nearly sixty days, ten orders, three depositions, three discovery disputes, three motions for stay, two hearings, a week-long stay, and a failed appeal later,” they still don’t know.

While Mr. Abrego Garcia’s lawyers acknowledge that the government has made some movements to comply with Judge Xinis’s command, they contend that the Department of Justice has made “a mockery of the discovery process.” Mr. Abrego Garcia’s team cites one production that it claims “consisted entirely of public filings from the docket of this case, plus two non-substantive cover emails.”

Mr. Abrego Garcia fared no better when his legal team tried to depose government officials: “More than 90 times, the Government instructed them not to answer on the basis of an asserted privilege,” that of state secrets. Judge Xinis describes these depositions as “an exercise in utter frustration” and “goose eggs.” The Federal Rules of Civil Procedure mandate that sanctions are warranted if a discovery order is violated.

The Fourth United States Appeals Circuit, which oversees Judge Xinis, has held that a district court judge “may issue further just orders” if a party “fails to obey an order to provide or permit discovery.” Mr Abrego Garcia, whom the government contends is a gang member, is asking Judge Xinis to compel the government to produce documents — or appoint a special master to supervise their production. He is also asking for financial sanctions.

Mr. Abrego Garcia’s attorneys, possibly sensing that the administration could argue that the return of their client to America obviates his claims against the administration, contend that “a court retains jurisdiction to impose sanctions even in circumstances where the underlying case or dispute has been resolved or rendered moot.”

Judge Xinis could possess the power to fine not just the government in general, but its attorneys in their personal capacity. A case in the Ninth Appeals Circuit cited  “callous disregard for the discovery processes and the orders of this Court” to fine a government lawyer a symbolic $500. She could also go even further and order the government not to reimburse its lawyers for their work on the case. 

If Judge Xinis does impose sanctions, the Trump administration can appeal — but that ruling would be evaluated on an “abuse of discretion” standard, a high bar for the government to surmount in order to secure a reversal.