President Donald Trump said in an interview with ABC News that he “could” have Kilmar Abrego Garcia returned to the United States 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 told ABC News’ Terry Moran on Tuesday when he was asked whether he could not simply call Salvadoran President Nayib Bukele and ask for Abrego Garcia’s return. Trump and his allies have contended that Abrego Garcia is a member of the MS-13 gang in justifying his deportation — which Abrego Garcia’s lawyers deny.
“I’m not the one making this decision,” Trump added. “We have lawyers that don’t want to do this.”
At a Cabinet meeting Wednesday, Trump 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 all ordered the administration 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 the 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 United States 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 court filing.
Attorney General Pam Bondi put it more succinctly 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 suggested in the ABC News interview that 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 removed from the case after having called 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 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.
The Justice Department tried this month to introduce a meeting Trump had in the Oval Office with Bukele as evidence in the case. Bukele told reporters he would not return Abrego Garcia 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 — not Trump or the other officials there with him — who brought up the return. She also said that what happened in the Oval Office “is not before this court” and that she would 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 the Justice Department’s position that the United States has no say in Abrego Garcia’s detention.
Abrego Garcia is in the “sovereign, domestic custody” of El Salvador, and the United States has no say in his detention, the government has said.
Leopold said Trump “said what everybody knows” and what Abrego Garcia’s lawyers have been arguing in court — that since the United States is paying for the deportees to be kept in 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.”
In the ABC News interview, Trump also doubled down on his assertion that Abrego Garcia is a member of MS-13. He pointed to a picture he posted on social media in which 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.”
When Moran said that the image had been altered and that Abrego Garcia did not 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 indicating membership in 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 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 CBS News 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 about what efforts it had taken and would take to facilitate the return of Abrego Garcia, and she suggested she was weighing contempt proceedings 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 she denied Wednesday.
Xinis ordered the administration to comply with her discovery orders 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.”
