(Photo by Rich Graessle/Icon Sportswire) (Icon Sportswire via AP Images)
Former U.S. Attorney and Fox News contributor Andrew McCarthy took a deep dive this week into the real issues behind the saga of Kilmar Abrego Garcia, the migrant that the Trump administration has acknowledged it deported and imprisoned indefinitely by “error.” The Supreme Court ruled last week that the Trump administration should “facilitate” Garcia’s return to Maryland, but in a Monday Oval Office meeting, top Trump officials made clear they were not interested in doing so.
McCarthy argued in a National Review analysis on Monday night that even after El Salvador’s President Nayib Bukele said he would not “smuggle” a “terrorist” back into the U.S., the Trump administration still had an obligation to bring him back.
“We’ve posted my column, arguing that the Abrego Garcia controversy is not, as the Trump administration would have us believe, a profound constitutional dispute over separation of powers and judicial interference in the executive’s nigh plenary authority over the conduct of foreign relations,” McCarthy wrote, adding:
To the contrary, it’s about the terms of the agreement regarding cooperation in detaining federal prisoners that has been struck between two sovereign nations — the United States, represented by the Trump administration, and El Salvador represented by the administration of President Nayib Bukele. The agreement’s terms are relevant because they affect Kilmar Armando Abrego Garcia, a Salvadoran national who lived illegally in the United States and who has a legitimate claim before a federal court that the Trump administration (a) illegally deported him to El Salvador and (b) is responsible for his being illegally held, pursuant to the agreement, in a notorious Salvadoran prison.
McCarthy went on to argue that the “Trump administration’s separation-of-powers distraction,” regarding the wording of the court’s ruling “hinges on the tedious semantic distinction between whether the administration has been officiously ordered to effectuate, or more indulgently directed to facilitate, Abrego Garcia’s return to the United States for further judicial proceedings.”
McCarthy promised to expand on that point further in a future article, and moved on to tear down President Bukele’s assertion that he was being asked to “smuggle” Garcia back into the U.S.
“Of course, no one has come close to suggesting that El Salvador or its president smuggle the detainee into our country. The idea would be to release the detainee into the custody of American agents, the simple inversion of the manner in which Bukele’s government took custody of Abrego Garcia (and about 260 other detainees) from American agents on March 15,” McCarthy wrote, adding:
That should be no problem since, after all, the Supreme Court unanimously ruled last week that our government, not Bukele’s government, is obliged to facilitate Abrego Garcia’s return to the U.S. for further court proceedings.
McCarthy went on to make a key point that many in the Trump administration, like Stephen Miller and Attorney General Pam Bondi, appeared to gloss over in their comments in the Oval Office on Monday:
Over the course of nearly two decades as a prosecutor, I had cases against any number of serious criminals — gang members and terrorists — as to whom I could state, at the time of their arrests, “No version of this, legally, ends up with them ever being free to walk America’s streets again.” Beating my chest this way, however, would not have made federal law and due process disappear. There would still have been the little matter of proving in court that we had a legal basis to keep the gang members and terrorists in custody and to secure life sentences against them.
The Trump administration has claimed that Garcia is affiliated with the violent MS-13 gang, which Trump declared a terrorist organization in February. “On that point, there has been a good deal of loose talk by the Trump administration that Abrego Garcia is a member of MS-13, but that claim has never even been charged in court, much less proven. There was no indication today that El Salvador has formally accused Abrego Garcia of MS-13 membership,” McCarthy wrote, refuting Bondi’s Oval Office claim that two courts had found Garcia was a gang member. CNN’s Jake Tapper also shot down that claim on Monday night.
McCarthy goes on to argue that Garcia, who came into the U.S. illegally, was never a legal resident of the U.S. and that deporting him was well within the right of the government, had they done so by following the appropriate steps. McCarthy notes that the 2019 judgment granting Garcia protective status in the U.S. needed to be appealed and overturned before Garcia was sent home to El Salvador – although that should not result in his indefinite detainment there.
“In any event, the issue is not whether, ultimately, Abrego Garcia may be deported to El Salvador or some other country, and whether he should be detained in the interim. No sensible person is claiming otherwise,” wrote McCarthy, who added he is as much an “immigration hawk” as is Miller, adding:
The question is what due process is required to get from where we are now — namely, in a situation in which Abrego Garcia has been illegally repatriated and is sitting in a Salvadoran prison pursuant to the Trump administration’s agreement with Bukele’s government — to an outcome in which Abrego Garcia is lawfully deported. (However naively, I am holding out hope that his unlawful deportation is not the aim of law enforcement agencies and a president who is sworn to execute the laws faithfully.)
“The courts, including the Supreme Court, have held that the Trump administration must facilitate Abrego Garcia’s return to the United States for further court proceedings. Nothing Bukele said at the White House on Monday provided a basis to believe there is any legal or factual impediment to the Trump administration’s compliance with the courts’ directive,” concluded McCarthy.
Read the full article here.
