Trump administration invokes state secrets privilege in Kilmar Abrego Garcia case

Washington — The Trump administration appears to have invoked the state secrets privilege to withhold information in the case involving the mistaken removal of Kilmar Abrego Garcia to El Salvador and any efforts by the Trump administration to return him to the United States.

The administration’s assertion of the privilege was revealed in an order from U.S. District Judge Paula Xinis, which asked lawyers for Abrego Garcia and the Justice Department to file additional legal papers about the administration’s “invocations of privilege, principally the state secrets and deliberative process privileges.”

Xinis gave the two sides until Monday to submit the filings “addressing the legal and factual bases for the invocation of those privileges,” including a request from Abrego Garcia’s lawyers for the court to conduct a review of “the withheld documents.” The judge also set a hearing for May 16 at the courthouse in Greenbelt, Maryland.

The Justice Department had indicated last month that it would invoke certain privileges to protect information regarding Abrego Garcia’s removal from the U.S., citing in a filing the attorney-client privilege, state secrets privilege and certain executive privileges.

Administration lawyers had said that a request for documents from Abrego Garcia’s legal team about the terms of any arrangement regarding the government’s use of El Salvador’s notorious prison to house deportees from the U.S. “calls for the immediate production of classified documents, as well as documents that defendants may elect to assert are subject to the protections of attorney-client privilege and the state secrets privilege.” 

Xinis told a lawyer with the administration during a hearing last month that if they do assert privileges, they must provide justifications for each claim, and she will make a determination as to whether they can stand.

The Trump administration has invoked the state secrets privilege before, in a case involving the deportations of Venezuelan migrants to the Salvadoran prison, called the Terrorism Confinement Center, or CECOT.

In Abrego Garcia’s case, Xinis had ordered the Trump administration to turn over documents to his lawyers and allowed them to conduct depositions with certain administration officials. Some of the records were initially due last month, but Xinis agreed to push back her deadlines after the Trump administration filed information with the court under seal. One day earlier, Xinis had accused the administration of showing a “willful and bad faith refusal to comply with discovery obligations.”

Under the judge’s latest order, the Trump administration had until Monday to answer and respond to outstanding discovery requests and provide information about their invocation of privileges. Depositions of four Homeland Security and State Department officials are to be completed by Friday, according to the order.

Xinis allowed the expedited discovery process to begin last month after Abrego Garcia’s legal team accused the Trump administration of failing to follow her order to facilitate his return to the U.S. The Supreme Court had agreed that the administration had to facilitate Abrego Garcia’s release from Salvadoran custody and “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

President Trump and other top administration officials have repeatedly said it is up to El Salvador whether to release Abrego Garcia, who had been held at CECOT. As of April 21, he was being held at a lower-security facility in Santa Ana, according to a declaration from a State Department official.

Abrego Garcia, who was born in El Salvador, entered the U.S. illegally in 2011 and has been living in Maryland since then. He was granted a withholding of removal, a legal status, in 2019 that prevented the government from deporting him back to his home country of El Salvador because of a risk of persecution by local gangs.

But Abrego Garcia was among the hundreds of migrants sent by the Trump administration to CECOT in March.

A federal immigration official acknowledged that his removal to El Salvador was an “administrative error,” but the administration has since declined to return him to the U.S. Instead, top administration officials have claimed Abrego Garcia is a member of the gang MS-13, citing allegations from a confidential informant. His lawyers, however, argue that Abrego Garcia is not a member of MS-13 or any other gang, and has never been charged or convicted of any crimes in the U.S., El Salvador or any other country.