President Donald Trump said in an on Tuesday that he "could" have returned to the U.S. with one phone call, even though the administration has argued in court that the government has no ability to get him back.
“If he were the gentleman that you say he is, I would do that. But he is not,” Trump when asked if he couldn’t simply call El Salvador’s president and ask for his return. Trump and his allies have contended that Abrego Garcia is a member of the MS-13 gang in justifying his deportation — an accusation that Abrego Garcia's lawyers deny.
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"I'm not the one making this decision," Trump added. "We have lawyers that don't want to do this."
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During a Cabinet meeting on Wednesday, the president said he had not spoken to Bukele about sending Abrego Garcia back.
"I really leave that to the lawyers," he said, adding, "They know the laws, and we follow the laws exactly."
A federal judge, an appeals court and the Supreme Court have to "facilitate" Abrego Garcia's return after he was deported to a prison in El Salvador on March 15.
Lawyers for the Justice Department have acknowledged in court filings that deportation was a mistake because an immigration judge had ruled that while Abrego Garcia could be deported, he could not be sent back to his native El Salvador. But administration officials have also said that, because Abrego Garcia is in custody in El Salvador, the U.S. does not have the legal authority to bring him back.
"Abrego Garcia is being held in the sovereign, domestic custody of the independent nation of El Salvador. DHS does not have authority to forcibly extract an alien from the domestic custody of a foreign sovereign nation," the Department of Homeland Security's general counsel said in one .
Attorney General Pam Bondi put it more succinctly earlier this month: “That’s up to El Salvador if they want to return him. That’s not up to us ... if they wanted to return him, we would facilitate it."
Trump, during his ABC interview, suggested the admission of the mistake was the issue, not the error itself.
"Well, the lawyer that said it was a mistake was here a long time, was not appointed by us" and "should not have said that," he said, appearing to refer to a Justice Department lawyer who was after calling Abrego Garcia's deportation an "administrative error."
Other Justice Department attorneys on the case have also acknowledged it was a mistake in court filings, including U.S. Solicitor General D. John Sauer, formerly Trump's personal lawyer.
It's unclear what impact Trump's remarks might have on Abrego Garcia's case. The Justice Department referred a request for comment to the White House. The White House did not immediately respond to a request for comment.
Earlier this month, the DOJ tried introducing as evidence in the case a meeting Trump had in the Oval Office with Salvadoran President Nayib Bukele. Bukele told reporters he and called the question "preposterous."
Drew Ensign, a lawyer for the government, told U.S. District Judge Paula Xinis that the exchange showed that the subject of Abrego Garcia's return was "raised at the highest possible levels."
Xinis noted that in the transcript the government provided her, it was a reporter — and not Trump or the other officials there with him — who brought up the return. She also said what happened in the Oval Office "is not before this court" and that she'd rely on "sworn, under oath testimony."
David Leopold, an attorney and the former president of the American Immigration Lawyers Association, said Xinis is likely to take a similar position if Abrego Garcia's attorneys try to use Trump's comments to ABC News as evidence.
"The judge is probably going to do the same thing here," Leopold said, although Trump's remarks are in clear conflict with that the U.S. has no say in Abrego Garcia's detention.
Abrego Garcia is in the "" of El Salvador and the U.S. has no say in his detention.
Leopold said Trump "said what everybody knows" and what Abrego Garcia's lawyers have been arguing in court — that since the U.S. is paying for the deportees to be kept in El Salvadoran prisons, it has the ability to get them released.
"They subcontracted the detention of the folks they sent to El Salvador," Leopold said. "There's no question he's in the constructive custody of the United States. We're paying the bills."
During the ABC News interview, Trump also doubled down in the interview on his assertion that Abrego Garcia is a member of the criminal gang MS-13. Trump pointed to a picture he posted to where the letters and numbers M-S-1-3 appeared to have been digitally added to Abrego Garcia's knuckles.
"He said he wasn't a member of a gang, and then they looked, and on his knuckles, he has MS-13," Trump said. "He had MS-13, on his knuckles, tattooed," he added.
When Moran said the image was photoshopped and that Abrego Garcia didn't have the tattoo in other pictures, Trump called him "fake news."
Oscar Giron, a retired Maryland police investigator who says he worked on hundreds of MS-13 cases on the East Coast, said other tattoos on Abrego Garcia's hand in the picture did not strike him as indicative of membership to the gang.
"I have not seen those before," he said.
Giron added that in his experience, members of the gang had largely stopped getting affiliated tattoos in recent years because they wanted to avoid detection by law enforcement.
Leopold said the accusations about the tattoos show the importance of the courts' second directive in Abrego Garcia's case — that he be given the due process he should have had before he was shipped off to El Salvador.
"The term sounds legalistic but it means a notice and an opportunity to be heard by a court. Mr. Abrego Garcia did not get that," Leopold said.
"Due process would have given him a chance to defend himself" and to "test the government’s evidence against him," he added.
The Supreme Court's ruled that Abrego Garcia’s removal was “illegal” and that Xinis’ order “properly requires 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.”
In an interview with that aired Wednesday, Homeland Security Secretary Kristi Noem said, "If he were to be brought back to the United States of America, we would immediately deport him again.”
At an April 15 court hearing, Xinis said she was frustrated at the government's failure to comply with her orders on what efforts it had taken and would take to facilitate the return of Abrego Garcia, and suggested she was down the road.
She directed government officials to answer questions under oath and sit for depositions, a directive she paused after the government put in a sealed filing asking for more time. The Justice Department put in a second such request this week, which the judge denied on Wednesday.
Xinis ordered the administration to by May 9.
In a statement, the law firm representing Abrego Garcia, Murray Osorio PLLC, said it "will seek to determine who in the U.S. government has taken action to facilitate Mr. Abrego Garcia’s return, what specific steps they’ve taken, and who may have worked to block those efforts. These questions demand answers—and through discovery, we intend to obtain them."
It added that "we will pursue every legal avenue to secure Mr. Abrego Garcia’s return home to his family, so that he can get a full and fair trial on the allegations against him, and we won’t rest until that day comes."
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