Trump, El Salvador, and the Deportation of Abrego Garcia
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The Supreme Court rules that the judiciary may tell the White House to facilitate the return of a man deported in error to a prison in El Salvador. But the White House is pushing back, including in an Oval Office meeting with the Salvadorian president this week. Welcome, I'm Kyle Peterson with The Wall Street Journal. We're joined today by my colleagues, columnists Kim Strassel and Mary Anastasia O'Grady.

This legal fight is over. Kilmar Armando Abrego Garcia. In court, the administration had previously admitted that it mistakenly deported him to El Salvador despite a court order saying that he faced a threat to his life, violence in El Salvador, and could not be sent back there. The state of the legal appeal now is the United States Supreme Court in a short order on Thursday.

upheld the lower court, the district court's order, saying that the White House would have to facilitate his return to the United States, though with a bit of a caveat. So this is from the Supreme Court. The order properly requires the government to facilitate Abrego Garcia's release from custody in El Salvador. It goes on to say, though, that the intended scope of the term effectuate, which had been used by the lower judge,

is unclear and may exceed the district court's authority. It suggested that the lower court clarify that directive with due regard for the deference owed to the executive branch in the conduct of foreign affairs.

Kim, we now are sitting here taping this on Tuesday afternoon. This district court judge has a hearing scheduled for today, so we'll have to wait and see what she does. But notable, the majority at the Supreme Court seeming to try to find the narrow path between

letting the government deport someone in violation of a court order, saying that it could not do so, and having the judiciary, having lower courts meddling in foreign affairs and telling the president how he has to conduct his business with the leader of another country. Right. This is all coming down to the words effectuate and facilitate, which is an interesting classic

sort of situation sometimes when you end up dealing with the law, although the Trump administration is clearly deciding to take the most expansive view of that. And this is where things have got complicated because essentially you had the lower court saying that you would effectuate it, meaning expected to see Abrego Garcia return to the country. The Supreme Court chose to use the word facilitate and

also called out that sentence that you noted and suggested that that might have gone too far. The White House's response to this has been to say, oh, well, we're going to take a very, very narrow reading of what facilitate actually means. It essentially only means that if the El Salvadoran president and government decide to release this guy, that's entirely up to them. But if they do, don't worry, we'll get an airplane there and bring him back.

We will facilitate it in that regard, but it's up to him. And we had this press conference with Bukele and the president on Monday in which the president, Al Salvador, said, well, not going to do that. We're not releasing him back.

And the White House kind of wiped their hands of it and said, nothing we can do here. I think that this is a little bit unfortunate because what I read in—well, it's a lot unfortunate because what I read in this Supreme Court ruling was that the majority was trying to, as you say, Kyle, essentially send the message both to the district court—

and to the Trump administration, "Hey, folks, can you sort this out? Come to an agreement here. Make this situation right," without requiring us, the courts, to essentially be issuing orders to anybody with exactly how it has to happen. And in that regard, that's very much this Supreme Court, which I think whenever possible is attempting to exercise some judicial deference

And you can see that it was not keen here to be telling the president of the United States exactly and micromanaging how to handle the return of this particular individual. The White House, I think, as a result of somewhat kind of cavalierly thumbing its nose at that respect the Supreme Court was giving it and saying, well, we're not going to do anything. We're going to just leave this as the status quo.

I think that will likely lead to the courts now deciding to double down and getting more involved. We have that clip that Kim mentions. Let's listen to the president of El Salvador, Naib Bukele, asked in the Oval Office about returning this man to the United States. I'm supposed to have been suggesting that I'll smuggle the terrorists into the United States, right?

How can I return him to the United States? If I could smuggle him into the United States, what would I do? Of course, I'm not going to do it. The question is preposterous. How can I smuggle a terrorist into the United States? I don't have the power to return him to the United States.

Mary, maybe some background would be helpful here. Many people are not close watchers of Salvadoran politics as you are. Can you tell us a little bit about Bukele and what he's been up to? Bukele was elected in 2019 in an environment which actually...

is explained a lot by what happened to this Rego Garcia. The gangs had run wild over the country. Two in particular, MS-13 and one called Barrio 18. And I remember being in El Salvador

earlier, like in the early 2000s. And people talked about how they couldn't leave their neighborhoods without paying an extortion fee to the gangs. The gangs had completely taken over most of San Salvador and the rest of the country. So Bukele comes along and he says, I'm going to end this.

But of course, you can end that kind of environment by simply turning the country into a police state, which is what he did. He arrested just huge swaths of people, accusing them of being gang members. The Congress, which he controls, it's a unicameral legislature. They passed a law that said,

then you could convict any number of people in a single trial. And there have been trials up to 900 people go into a trial to decide whether they're gang members and if they should go to prison. So he's convicted huge numbers of people. At least 8,000 people have had to be basically freed because their cases were so preposterous and so incredibly absurd. Everyone knew they weren't gang members and he had to let them out. But that was after like a year in these terrible prisons.

So this is how he's made his name, because now when you go to San Salvador, you know, there's no crime on the streets. But if you have a tattoo or you look like a suspect, you can be swept up, thrown into the prison and kept there indefinitely. You know, we saw his intellectual dishonesty yesterday when he started accusing this guy of being a terrorist and

Nobody in the press seems to be capable of dismantling his absurd statements, and the administration doesn't want to do it either. So whether he needs to facilitate the return of this guy or not, I mean, I think it's just really pretty disgusting that the U.S. has become an ally of this guy who's such a

an enemy, really, of democratic rule of law, due process, just basic human rights. It's really a terrible situation for Salvadorans. Hang tight. We'll be right back in a moment.

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The facts about Abrego Garcia are one thing that remain in dispute here. The administration suggesting he was a member of a gang. No evidence, according to the judge in the court record, that that was actually the case. No proof of that. Let's listen to Attorney General Pam Bondi in this Oval Office meeting. He was illegally in our country. He had been illegally in our country. And in 2019, he

two courts, an immigration court and an appellate immigration court, ruled that he was a member of MS-13 and he was illegally in our country. Right now, it was a paperwork, it was additional paperwork that needed to be done.

That's up to El Salvador if they want to return him. That's not up to us. The Supreme Court ruled, President, that if El Salvador wants to return him, this is international matters, foreign affairs, if they wanted to return him, we would facilitate it.

meaning provide a plane. Kim, I don't know the exact details of those immigration cases that Attorney General Pam Bondi is referencing. I don't know this guy's ties, the evidence against him, but it also doesn't change the fact that the government was apparently under a court order not to remove him to El Salvador. So even if it did judge him to be a threat, it could have

held him. It could have confined him. It could have put him in a detention facility. It could have deported him somewhere else. What makes this case so odd is that the government seems to have done the exact thing that it was under a court order not to do, which was send him back to El Salvador.

Yeah, I mean, we do have some history and more of it is coming out. And I think it's worth spending two minutes just relating some of it. So if you listen to Abrego Garcia's family, this is a very disturbing story about a family that much to many,

Mary's point about the way that El Salvador was being run for years by gangs had essentially had a decently successful business, was being terrorized by those gangs, demanded either payment or that the sons in the family join up with the gang. The oldest son chose not to do that at all.

ultimately came to the United States, and then the younger son, who is this individual in question, came as well, too, largely to escape the gangs. You fast forward, and there are these immigration cases that were mentioned. Apparently, an immigration judge did rule that Brego Garcia was a member of MS-13, but it's weird. The information that this was based on looks to be a bit hearsay. It came from another organization.

person who's unnamed. There hasn't necessarily been any hard or concrete evidence that it's true. And I think an important aspect of this case as well, too, is that there's been no convictions. They have not provided any hard evidence of illegal activity or crimes. I think that that's important in noting. I mean, in theory, if the case they have here is so strong, they would put that out. They haven't put any of that out.

So we do know a little bit about the history, but it's still pretty murky. I think the bigger point, as you note, Kyle, is at the end of all of this and some of these court hearings and findings and discussion, a judge, an immigration judge, nonetheless ruled and issued what was called a withholding of removal under the argument that he could not be returned because he would be at real threat

of death or harm if he went back to El Salvador. And that order was in place, and the administration has acknowledged that he should not have been removed in that regard. So, to now say, well, administrative error, this happened, and that's been one of their arguments,

But now we hold no ability to make El Salvador return this. That's just nonsense as well, too. I mean, the president of the United States not only has a lot of, you just saw them in the Oval Office, a lot of ability to make some demands. You know, in theory, we're also paying these people to house some of this. Like, so simply, you know, make some demands and get them back and then let this get sorted in a United States.

court of law, which is where it was destined to be or it should have been handled in the first place. That payment is another piece that I think complicates the administration's argument that this is a question of foreign policy. Let's listen to one more clip. This is Secretary of State Marco Rubio, also in this Oval Office meeting.

I can tell you this, Mr. President. No, the foreign policy of the United States is conducted by the President of the United States, not by a court. And no court in the United States has a right to conduct the foreign policy of the United States. It's that simple.

Mary, as far as I know, the administration has not released any sort of contract or agreement on this prison operation with El Salvador. But here's the top of the Associated Press story in March when this first came out. It says President Donald Trump's administration will pay El Salvador $6 million to imprison for one year about 300 alleged members of the Venezuelan Trenaragua gang.

And so I don't know, again, if there's any sort of contract, but if this is a business deal, we are going to provide funding in order for, in exchange for imprisoning people that we are going to deport, then it looks less like a matter of a negotiation between two countries, one of them being a foreign country. It looks more like a contract. What are the details of this contract?

And if the U.S. wants to make an adjustment to one of those cases, why would it not be able to make that request of El Salvador? You know, Kyle, it's completely absurd to think that the Trump administration cannot get this guy back. I mean, it's crazy. And, you know, there are real questions about why we're even partnering with a country like this. In 2023,

Nayib Bukele gave 60,000 tourist visas to Ecuadorans. Now, for your listeners who don't know the geography, it's very tough to get from Ecuador to Central America, where you could basically walk up to the Mexican border, because there's something called the Gulf of Uduba and the Darien Gap. Crossing the Gulf of Uduba is a huge body of water, and then you have to march through the jungle.

It's much easier if you can fly into San Salvador, get off the plane, meet up with gang members who basically smuggle humans to the border. That's what Nayib Bukele was facilitating all through 2023. 16,000 tourist visas to Ecuadorans,

32,000 people from India. This guy is not a U.S. ally. And I mentioned a lot of his other partnerships with China, with Xi Jinping. He's not a U.S. ally. He's someone who's violating basic human rights. And the State Department has even written about the prison conditions in El Salvador. They have a

report that they filed in 2023 about the lack of due process and the terrible conditions that prisoners go through. And yet the Trump administration insists that this guy is a friend and that they cannot tell him to send this guy back. It just doesn't make sense.

Kim, what's your read on where this litigation may be heading? Again, the district court judge is holding a hearing this afternoon, so we'll have to wait and see what she does. But presumably, both sides are motivated to continue to appeal this up the chain, maybe back to

to the United States Supreme Court, where you have a majority, it seems, that is trying to be careful of the president's prerogatives in the realm of foreign policy. And again, this may be a case where the majority is reluctant to issue an order that President Trump might be

eager and willing to defy. On the other hand, it's also a case involving an alleged gang member who is a non-citizen, who did not have any right to be in the United States in the first place. So maybe a Supreme Court ruling would come with some caveats and some statements about how this law would apply differently with regard to U.S. citizens. Here's why I think the Trump administration's approach is a political mistake.

Like I said, this is an issue in which they've acknowledged that this guy was sent in violation of a court order. We have the greatest legal system in the world, and bringing this guy back and settling his case in that legal system should not be an issue, especially if they believe what they are saying in this context. We don't really know, again, the entire story of this guy. Maybe he is a gang member. Maybe he isn't.

But we have the best situation here to sort that out. And that also provides due process and provides the administration plenty of opportunities to make its argument about why something should happen to this. It would land him in a Salvadoran prison. So doing this shouldn't be any skin off its nose. I appreciate that the administration is

I think is packaging this as part of its broader deterrence message it's attempting to make. Essentially saying, look, if you are here illegally, this could happen to you. So self-deport and don't make us end up doing this to you and send you. You have an opportunity to leave now. You see Homeland Security Secretary Kristi Noem doing that in commercials on a daily basis. I get it. But the problem, again, not only could they solve this by bringing it back, going through and heralding our system of law.

in our system of government, not giving undue aid and comfort to this president that Mary has noted is problematic. But the other problem is the Trump administration has far greater fish in my mind sitting in front of the Supreme Court, things that it is asking it to do, and deliberately provoking a battle on this one, upsetting the majority, getting sideways with the court.

when strategically they have so many other big issues coming up to the court that they need to focus on and would benefit them far more to get a good outcome on from a matter of law. It's just something that this is like one of those mountains that's not worth the climb, especially given that we have a perfectly wonderful legal system that can deal with this through the normal course of order without Supreme Court intervention.

I think that one of the problems the Trump administration is up against is it's already been ruled that they denied due process to the 260, mostly Venezuelans, but some Salvadorans that they sent back.

to El Salvador that are, you know, this is part of the $6 million fee that we're paying Bukele to keep them in his prisons. And I think that they're worried that if this guy is, you know, sent back, what will be their argument to say that the other 260 can't be sent back and are entitled to the due process that the court says they were denied? So I think that's part of the reason they're fighting so hard on this one.

Although one difference I just throw in is that there was a standing order already about sending this guy there. And that is a little bit different in terms of that other category of individuals. Yeah, I agree that he has a stronger case than the others. But I do think that due process issue maybe is hovering out there. Hang tight. We'll be right back in a moment. This message comes from Viking, committed to exploring the world in comfort.

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From the opinion pages of The Wall Street Journal, this is Potomac Watch. Welcome back. One final thought on the point about deterrence. The last time we talked about Mr. Albrego Garcia, we got this letter from listener Ken. He says if the objective of the Trump administration is to deter migrants from attempting to enter the country illegally...

The quick and dirty tactics to get the initial batch to El Salvador accomplished that objective. Now the courts will take up the matter over the next year or so. But in the meantime, a 95% reduction in border crossings from some news reports suggests that their tactic work.

And interestingly, Mary, on Monday, the Customs and Border Protection released its latest numbers for Southwest border encounters. And the numbers are pretty remarkable compared to under the Biden administration in March.

It's 11,000 Southwest land border encounters. That compares to about 190,000 in March of 2024, so a year ago. Again, 193,000 in March of 2023. So that is a big change

The difficulty, I think, of crediting that to this El Salvador operation is the March of 2025 number was very similar to the February of 2025 number. President Trump's first in office, that was about 12,000 in February of 2025. So, Mary, I think the message of deterrence had already gotten across and these numbers had already collapsed there.

at the southern border by the time that President Trump in mid-March started citing the Alien Enemies Act and sending people off to El Salvador.

I have a problem with that explanation for why the number has gone down. We said for years, for years during the time Biden basically had an open border policy, that as long as you had a situation where all someone had to do was walk up to the border, put up their hands and say, I claim asylum, they were waved in.

And that was a sign out front that just said anybody who makes it to the border can get in. And it had the predictable results. So once the Trump administration said we're not doing that anymore, the numbers just plummeted. I don't think you need to, you know, abuse an individual like Abrego Garcia in order to get the numbers to go down. You just need to say that once you get to the border, you're not going to be able to come in under those same terms. That's what caused the numbers to drop.

And Kim, I mean, the numbers were dropping even back to the November election when it became clear that President Trump was going to be the next president. I mean, I have the figures here in front of me. Fiscal 2025, this is the beginning of October. Last October is about a little over 100,000. Then November 94. December was in the 80s. January in the 60s. So ever since President Trump won...

and was coming into office, the transition period, those numbers have been going down precipitously. So it seems that the message that Mary is discussing, that we're taking out the welcome sign, that that was well getting across even by January 20 when President Trump took office. Look, Evan, we've talked about this before. Donald Trump had a huge mandate in this electoral win to do something about our broken border. And I think that there has been

generally good public will for the initial steps that were taken and that improvement that we have seen in those border numbers, whatever the cause behind it. The risk has always been, and we've mentioned this, that the administration then doubles down nonetheless and begins to take actions that do not sit well with the

Right.

what I view as an unnecessary fight that threatened to dominate the headlines and give Democrats the rallying cry they've been looking for on this subject to suggest that things have gone too far and are out of control. And I think that there is good reason to let this happen so that he is returned.

Our court system deals with it. And the Trump administration refocuses on some bigger legal questions in front of the Supreme Court. Thank you, Kim and Mary. Thank you all for listening. You can email us at pwpodcast at wsj.com. If you like the show, please hit that subscribe button. And we'll be back tomorrow with another edition of Potomac Watch. Think about a bicycle.

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