In Kilmar Abrego Garcia Case, Trump Administration Escalates Its War on Due Process

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Less than a week after the U.S. Supreme Court ruled that the Trump administration must “facilitate” the “release from custody in El Salvador” of wrongfully-deported Maryland father Kilmar Abrego Garcia, the Trump administration has doubled down on defiance, with administration lawyers telling a federal court that Mr. Abrego Garcia is detained in the custody of El Salvador and White House officials accusing anyone who supports his return of supporting terrorism.

On April 15, with the Trump administration stonewalling and refusing to reveal any information about steps it was taking to “facilitate” his return, federal judge Paula Xinis in Maryland ordered the Trump administration to begin disclosing information about the deal with El Salvador and how it is that Mr. Abrego Garcia ended up detained there. She will require the government to answer questions submitted by his lawyer, and ordered the deposition of three witnesses that the government has claimed have personal knowledge of the situation. All of this will proceed at a break-neck pace for a federal court, with “expedited discovery” carried out over the course of the next two weeks.

Judge Xinis’ decision to require discovery may force the government to finally disclose details of the agreement with Salvadoran President Bukele, who on April 14 visited the White House and expressed indignation at the very idea that he would ever release Mr. Abrego Garcia from custody. In one exchange, he disingenuously suggested that he’d have to “smuggle” Mr. Abrego Garcia back to the United States. But what President Bukele did not answer was the fundamental question of whether the government is holding Mr. Abrego Garcia pursuant to a deal with the United States, as has been suggested. Expedited discovery may produce some answers to this.

However, if the conclusion is that President Bukele maintains full custody over Mr. Abrego Garcia (even though he hasn’t committed any crimes in El Salvador), it remains unclear what a federal court could do in response.

Given that situation, the Trump administration is seeking to win the war on public opinion by reframing its clear error and dismissal of due process into a referendum on Mr. Abrego Garcia himself. Despite the fact that he has never been charged with any crime in the United States, the Trump administration has been painting him as a major criminal whose very presence in the United States would be a danger.

The attacks on Mr. Abrego Garcia began with Vice President J.D. Vance, who first called him a “convicted gang member” days after the story broke. It has since escalated, with White House Press Secretary Karoline Leavitt accusing him of being a human trafficker, Department of Homeland Security Secretary Kristi Noem calling him a “violent criminal,” and DHS Spokesperson Tricia McLaughlin accusing him of being arrested with “cash and drugs.” Crucially, when reporters have pressed the administration to provide any evidence of these claims, they have so far completely refused to do so.

The Trump administration’s escalating war on Mr. Abrego Garcia runs headlong into the facts. So, here’s what we know about those allegations of gang membership.

In March 2019, Mr. Abrego Garcia was standing outside a Home Depot in Hyattsville, MD alongside several other men seeking day labor, when local police came by and arrested everyone there for loitering. A Prince Georges County Police detective interviewed him for four hours and grilled him about possible connections to gangs, which he repeatedly denied. After the interview concluded, the police declined to bring charges and transferred Mr. Abrego to ICE officers who had come to take him into custody for being undocumented—which is a civil violation and not a crime.

In April 2019, at his initial removal hearing, Mr. Abrego learned for the first time that the Prince Georges Police Department had accused him of being a gang member. The police detective who interviewed him had completed a “Gang Field Interview Sheet” (GFIS) which contained two allegations connecting him to MS-13. The first was that he was wearing a Chicago Bulls shirt and hat when arrested, which the detective claimed was consistent with MS-13 membership. The second allegation was that a confidential informant had supposedly pointed a finger at Mr. Abrego and accused him of being a ranking member of the “Westerns” clique of MS-13 — even though that group operated out of Long Island and Mr. Abrego had never lived anywhere in the U.S. other than Maryland.

When Mr. Abrego’s lawyers in 2019 went to interview the detective and find out more about this supposed informant, they were unable to talk with him because they were told he was suspended. What they couldn’t know at the time was that he had been suspended less than two weeks after making the accusation against Mr. Abrego for the crime of trading police secrets to a sex worker in exchange for  sex. The detective wasn’t publicly indicted until June 2020, after Mr. Abrego’s case had already concluded.

At his bond hearing, ICE submitted that GFIS document as evidence of his membership in MS-13 — and nothing else. The immigration judge, despite viewing the document’s claims about gang clothing with skepticism, concluded that the discussion of a confidential informant was sufficient evidence of membership in MS-13 to deny Mr. Abrego Garcia bond. The Board of Immigration Appeals later declined to overturn that ruling on a “clear error” standard.

There is no indication that any other evidence of gang membership has ever been presented by any government official in the years since then — only the gang field interview worksheet filled out by the disgraced detective. And it’s that very document, and the judge’s ruling on it six years ago, that remains the only evidence the Trump administration has suggested it will ever provide.

The details of Mr. Abrego Garcia’s case are important, but so too is the broader principle. The Trump administration’s deal with Bukele offers them a convenient way to get around due process. Simply deport someone there and transfer custody to a willing ally, no matter how unlawful that deportation was, and then claim that courts are powerless to stop them.

This is a dangerous moment for the United States. If Trump and Bukele can work together to disappear people into one of the world’s most notorious prisons and judges are powerless to stop them, then every person in the country is at risk. This concern is especially heightened as Trump continues to flirt with the idea of sending U.S. citizens to El Salvador to be imprisoned.

As it stands, Mr. Abrego Garcia finds himself trapped in a notorious prison not because of any crime he committed or punishment leveled by a judge, but because it would be politically inconvenient for the United States to own up to its error and make it right. And that’s a situation that should make any American who believes in the rule of law and due process furious. To reverse this egregious injustice, it’s going to take both the federal judiciary and the American public standing up to a bully.

FILED UNDER: El Salvador, Trump administration