FRIDAY: Maybe yes, but maybe no!

FRIDAY, APRIL 18, 2025

One part of what Wilkinson said: A certain highly regarded judge spoke for a unanimous court. 

Time magazine posted the full text of his written opinion. As you can see, his statement started as shown:

Conservative Judge’s Full Opinion Rebuking Trump Administration Over Abrego Garcia Case

Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.

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. 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 wrote J. Harvie Wilkinson, a highly regarded appointee of President Reagan.

The conduct of the Trump administration "should be shocking," Judge Wilkinson said. That echoed the earlier statement by Judge Paula Xinis—the statement cited on Wednesday in this New York Times report:

Judge Rebukes Administration’s Efforts to Return Wrongly Deported Man

A federal judge scolded the Trump administration on Tuesday for dragging its feet in complying with a Supreme Court order that directed the White House to “facilitate” the release of a Maryland man who was wrongly deported to a prison in El Salvador last month.

[...]

In her initial order directing the White House to bring Mr. Abrego Garcia back from El Salvador, Judge Xinis found that the Trump administration had flown [Abrego Garcia] out of the country “without notice, legal justification or due process.”

Moreover, she chided government officials for having made “a grievous error” by deporting him, adding that the White House, by then refusing to retrieve him from one of the most “inhumane and dangerous prisons in the world,” had exposed him to harm that “shocks the conscience.” 

Judge Xinis said the administration has exposed Kilmar Abrego Garcia to a level of harm that "shocks the conscience." 

No one is required to agree with that assessment; at this site, we do. But based on Judge Wilkinson's written opinion, it sounds like the unanimous district court formed a similar view.

With that, we offer a warning. This matter has become highly partisan—heavily tribalized. In our view, thumbs are being placed on the scales by the Red and by the Blue.

We've lost a chunk of time this afternoon; we'll have to continue this important topic tomorrow. But for now, we caution those in our own Blue America to consider what Wilkinson wrote next. We highlight one new passage:

Conservative Judge’s Full Opinion Rebuking Trump Administration Over Abrego Garcia Case

Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.

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. 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.

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. 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 written opinion continues from there. For today, at a highly tribalized time, we call your attention to that one short statement:

Perhaps, but perhaps not.

Forget about the "terrorist" claim. Is it possible that Abrego Garcia was, or possibly even still is, a member of MS-13?

Writing for the unanimous court, Wilkinson says this: 

Maybe yes, maybe no.  

According to what Wilkinson wrote, what shocks the conscience is the degree of harm to which Abrego Garcia was exposed at a time when President Trump was groaningly saying this:

REPORTER (4/17/25): “If the court holds you in contempt, will you take steps to return Kilmar Abrego Garcia to the United States and put him in front of a judge?

PRESIDENT TRUMP: Well, I’m not involved in it. I’m going to respond by saying you’ll have to speak to the lawyers—the DOJ. 

I’ve heard many things about him, and, uh— We’ll have to find out what the truth is. 

Gulag truth, search for truth later! Welcome to a shocking trip into Alice's world.

(For what it's worth, we wouldn't frog-march anyone, even someone who had committed a crime, into the "prison" in question. We have prisons right here in this country for people convicted of serious crimes.)

We've seen many thumbs on many scales in the past two days. In a fully intelligent world, Joe Scarborough's ridiculous conduct this very morning might also "shock the conscience!"

Is it possible, even now, that the detainee in question actually was an affiliate of MS-13 back in 2019?Does some such possibility still exist? 

For the record, rightly or wrongly, Judge Wilkinson didn't say no. 

Tomorrow, we'll walk you through a complex field, dating back to what we were told in the original report on this topic in the Atlantic. We also think it's time to revisit what Bill Maher recently said.

We'll show you what the first report in the Atlantic said. Along the way since then, we've seen awful behavior on the Fox News Channel—and this morning, we watched Morning Joe.

Under current arrangements, Red is Red and Blue is Blue and never the twain shall meet! Tomorrow, we'll lay out some of the reasons why a respected figure like Judge Wilkinson might have made the statement he did. 

This takes us back to the dawn of the West—to the "all too human" refusal to let ourselves be told that we may not yet actually know.

Maybe yes, but maybe no! That's one part of what this unanimous court has said.