“The 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.”
So writes conservative Republican Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit, in a decision rejecting the Trump administration’s request for the appeals court to stop Judge Paula Xinis’s move for discovery as to whether the administration is defying the Supreme Court’s ruling that it “facilitate” the return of deported migrant Kilmar Abrego Garcia.
The defendants in the case, filed by Abrego Garcia’s wife, include Homeland Security Secretary Kristi Noem, U.S. Secretary of State Marco Rubio, and U.S. Attorney General Pam Bondi. (Wilkinson excoriates the defendants’ actions, justification, and subsequent inaction in short order.)
Slamming the notion that the government’s accidental deportation of Abrego Garcia is a challenging case laden with legal ambiguity, Wilkinson, who was appointed by President Ronald Reagan, wrote: “It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all.”
This is an absolute *must read* opinion from Judge Wilkinson on the Fourth Circuit – a very conservative judge – in the Abrego Garcia case. https://t.co/zWyHyScBk4
— Daniel Goldman (@danielsgoldman) April 17, 2025
Articulating the “heart of the matter,” Wilkinson spoke plainly with the force of one of the U.S. constitution’s central claims as his support.
“The government asserts that Abrego Garcia is a terrorist and a member of MS-13,” the judge wrote. “Perhaps, but perhaps not. Regardless, he is still entitled to due process.”
Wilkinson also addressed directly what the government presents as its quandary, centered in a specious claim that the order to “facilitate” Abrego Garcia’s return did not mean his return had been mandated by the court.
Trump advisor Stephen Miller audaciously declared this week in the Oval Office that the Supreme Court decision was decided 9-0 “in our favor” — with his definition of “facilitate” meaning something like “to not prohibit” rather than “to make happen.”
Wilkinson called out that semantic chicanery, writing: “‘Facilitate’ is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear.”
Wilkinson wrote: “The government’s argument is not well taken…in light of the Supreme Court’s command.”
Addressing the impact that this particular breach of justice may have on the overall state of the republic and the ability of government to function as a democracy, Wilkinson also contributed a paragraph that reminds of Martin Niemöller’s famous Holocaust-era authoritarian regime cautionary tale, which ends with the chilling regret: “Then they came for me and there was no one left to speak for me.”
[NOTE: “First they came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me”]
Wilkinson wrote, with Orwellian cadence: “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to ‘take Care that the Laws be faithfully executed’ would lose its meaning.”
Notably Sec. Rubio, who is named in the suit, had described a similar scenario when he ran for president in 2016 — back when he still believed Donald Trump was a danger to the rule of law. See below.
Marco Rubio: “For years to come, there are many people on the right, in the media and voters at large, that are going to be having to explain and justify how they fell into this trap of supporting Donald Trump.”
(March 2016) pic.twitter.com/4jjOMzJi37— Republicans against Trump (@RpsAgainstTrump) April 16, 2025