U.S. District Judge Paula Xinis ordered the government to release Kilmar Abrego Garcia from custody on Thursday, a major legal victory for the man who’s been persecuted by the Trump administration ever since his unlawful deportation to the notorious CECOT prison in El Salvador in March. The government complied with Xinis’ furious ruling—which accused it of lying to the court—freeing Abrego Garcia within hours. Soon after, it cited new legal authority for his detention and ordered him to return to Immigration and Customs Enforcement offices on Friday morning, with the apparent aim of taking him right back into custody. Xinis issued a last-minute order barring ICE from rearresting Abrego Garcia, preserving his freedom for now. Meanwhile, the Trump administration continues to seek his incarceration in a dubious criminal case out of Tennessee, where it is attempting to curtail his constitutional right to confront witnesses about the questionable deals they secured in exchange for testifying against him.

On this week’s Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed this whirlwind of developments in the government’s relentless crusade against Abrego Garcia. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: We’ve now had several huge twists in this case over the last couple of days. Let’s start with Judge Xinis holding that ICE did not actually have legal authority to detain Abrego Garcia. What did she order?

Mark Joseph Stern: This was a bombshell. From the start of this case, Judge Xinis had flagged that the Trump administration could not produce a final order of removal for Abrego Garcia, which is required by law to deport him. All of the government’s efforts to banish him from the United States were based on the premise that this order existed. Xinis gave the government’s lawyers every opportunity to produce it. And they couldn’t. The government even put two ICE officials on the stand who admitted that they had never seen a final order of removal for Abrego Garcia!

Finally, on Thursday, Xinis ruled that “no order of removal exists.” The best the government could do was argue that an immigration judge had implied an order of removal back in 2019 when he prohibited the deportation of Abrego Garcia to El Salvador. But the 4^th U.S. Circuit Court of Appeals requires an “explicit” order of removal before the government can expel a noncitizen; an implication gleaned from a separate order cannot suffice. That is in line with a ruling by the Board of Immigration Appeals and Supreme Court precedent that a removal order cannot “merge” with other, related orders. Applying those basic principles, Judge Xinis ruled two things. First, Abrego Garcia cannot be deported. It’s just not legal. Second, he cannot even be detained any further, because the government is holding him under a statute that only authorizes detention after a noncitizen is “ordered removed.” And he has not been ordered removed! So Xinis ordered his immediate release from custody.

Before we get to what happened after that, let’s note that this nonexistent removal order wasn’t even the only falsehood Judge Xinis identified in her ruling. She also pointed out that the administration “did not just stonewall,” but “affirmatively misled the tribunal” by claiming it could only send Abrego Garcia to Liberia because Costa Rica “does not wish to receive” him. It comes out in litigation that this was also not true.

And that is a huge problem for the government. Abrego Garcia has agreed to resettle in Costa Rica. The Costa Rican government has agreed to take him in. But the Trump administration does not want to send him to Costa Rica. It wants to send him to Liberia in order to punish him, because it knows he and his family don’t want to go there. So ICE has continued to detain him while the government negotiates a deal with Liberia—when, all along, Costa Rica was ready to take him in. But the Supreme Court has held that the government can only detain noncitizens for the “basic purpose” of preparing for their deportation, not for punishment or any other “arbitrary” purpose. So the Trump administration had no right to keep this guy locked up just because it wanted to find a worse country for his banishment.

The Justice Department tried to cover all that up in court. DOJ lawyers flat-out told Xinis, falsely, that Costa Rica would not agree to take Abrego Garcia. And on Thursday, she wrote that this was a “misrepresentation to the court.” Costa Rican officials have repeatedly confirmed that they will take him in. And I think Judge Xinis is just out of patience with these lies. She also pointed out that, in addition to the DOJ lawyers’ deceptions, at least six witnesses for the government in this case were “unprepared or defiant in their refusal to answer questions,” including ICE officials. Frankly, it sounds like she is seriously considering contempt charges in the near future.

We’ve talked about Judges Beryl Howell and Karen Immergut telling the Trump administration: You are lying. Now Judge Xinis joins that swelling chorus. Of course, the saga didn’t end there, because ICE did release Abrego Garcia on Thursday evening—then went on to “correct” the “scrivener’s error” in the original order and announced that he is now officially deportable. I love that they used the word “scrivener,” as though that makes it real law. Anyway, the government directed him to report to the ICE Baltimore Field Office at 8 a.m. Friday morning, almost certainly planning to rearrest him. How did this all play out? 

Abrego Garcia’s lawyers rushed back to Judge Xinis early Friday morning and asked for another injunction preventing ICE from rearresting him. She granted it one hour before he was set to appear at ICE offices, just in the nick of time. His lawyers pointed out for a bunch of reasons that this maneuver was clearly illegal, including the fact that the immigration judge did not actually have jurisdiction to issue the alleged order. Xinis ruled that, even setting that aside, detention of Abrego Garcia at this point would violate due process under Supreme Court precedent that generally limits a noncitizen’s time in custody to about six months. Abrego Garcia has spent more than six months behind bars already, including his brutal confinement at CECOT, and the government has not carried its burden of showing any reason to put him back in detention. So, as of this taping on Friday morning, he remains free, thanks to some last-minute intervention by his lawyers and the court.

This is such ridiculousness, and it never seems to end. Somehow, there’s also this criminal case against Abrego Garcia—the papered-over pretext was a traffic stop in Tennessee years ago—that’s still moving forward toward trial. What are the latest updates on that travesty?

Back in October, Judge Waverly Crenshaw ruled that there was a “realistic likelihood” that the government had launched a vindictive prosecution against Abrego Garcia, which would render the criminal charges unconstitutional. The judge authorized discovery, including communications between government officials about their decisions to deport and then prosecute him. Those could be damning documents that depict both malice and incompetence as Trump officials scrambled to deal with the mistaken deportation, then threw together this highly questionable criminal case in apparent retaliation against Abrego Garcia for suing. But we don’t know yet because that evidence is under seal.

Meanwhile, lawyers are fighting over jury selection and preparing for trial. Incredibly, the government has moved to exclude from trial any mention of its unlawful deportation of Abrego Garcia or his eventual return. And as Abrego Garcia’s lawyers explained in opposing this motion, that would be an egregious violation of his rights under the Fifth and Sixth amendments. All of the witnesses against him came forward only after top Trump officials defamed him as a violent criminal and made it abundantly clear that they wanted to lock him up by any means necessary. These witnesses clearly understood that they could extract unusually generous benefits in exchange for testimony against him. And indeed, they all obtained rare perks, including early release from prison and relief from deportation.

So Abrego Garcia’s lawyers want to impeach the credibility of these witnesses by showing the jury how much they had to gain by testifying against him, and how obvious it was that the government sought out damning testimony by going fishing for anybody who would say something bad about this guy on the stand. The Justice Department now wants to stop all of that from coming out at trial. And I expect that if Judge Crenshaw allows this case to go to trial, he will deny this motion and allow this information to come out, because it is vital for the jury to know why these witnesses are not credible.