WASHINGTON — The words of President Donald Trump and members of his administration undermined the government’s contention during a court hearing on Wednesday that the men deported from the country under the Alien Enemies Act and delivered to El Salvador were not in the constructive custody of the United States.
In a hearing on Wednesday evening, Chief U.S. District Court Judge James Boasberg questioned a Justice Department attorney over whether Trump was telling the truth when he said that he could secure the release of Abrego Garcia from the CECOT facility in El Salvador.
Boasberg used the president’s own words, as well as statements from Press Secretary Karoline Levitt and Homeland Security Secretary Kristi Noem, to chip away at the government’s contention that those incarcerated at CECOT in El Salvador were not in the constructive custody of the United States.
Constructive custody refers to the legal notion that individuals can be held at the behest of the government even if they’re not held in their physical custody.
Trump said last week that he “could” have Garcia returned to the United States with a phone call, while Levitt said the United States was paying El Salvador “approximately $6 million” to keep the men, and Noem said that CECOT was “one of the tools in our tool kit” that the United States could use.
“Is the President not telling the truth, or could he secure the release of Mr. Abrego Garcia?” Boasberg asked Deputy Assistant Attorney General Abhishek Kambli, who was representing the government on Wednesday.
“Was the president telling the truth,” when he said he could pick up the phone and secure the release of Garcia or not, Boasberg asked.
“That goes towards the president’s belief about influence he has,” Kambli responded, saying that “influence does not equate to constructive custody.”
Under questioning from Boasberg, Kambli said that a “grant” dated March 22 that was described as for law enforcement needs related to the 238 alleged Tren de Aragua members recently deported to El Salvador. Kambli confirmed “grants were made” that “can be used for detention of these individuals.”
Boasberg said the plaintiffs had “a lot of facts in your favor” in arguing that the United States had what’s called “constructive custody” of the men — something the Trump administration has argued in and out of court they do not have. Boasberg questioned Kambli on whether the government would concede that transferring individuals to CECOT without due process would mean that the government had violated the rights of the deportees.
“I don’t know if I would put it in those terms,” Kambli replied.
Boasberg has ordered the Trump administration to provide sworn declarations from administration officials regarding the issue of who exactly has custody of these individuals at CECOT.
Boasberg has ordered lawyers from the American Civil Liberties Union and Democracy Forward who brought the lawsuit to review that information, and to decide, by Monday, whether or not to request discovery — and if so, exactly what questions, depositions, and documents they are requesting. After that, Boasberg will decide exactly what to order the government to produce, if necessary.
The Supreme Court last month lifted Boasberg’s order which temporarily blocked the administration from sending members of Tren de Aragua to El Salvador under the Alien Enemies Act, but the Supreme Court didn’t reach a decision on the merits of Trump’s invocation of the act. Last week, a Trump-appointed judge became the first to strike down the administration’s use of the act, which had previously only been deployed during the War of 1812, World War I and World War II.
While the Trump administration proclaimed that they won the Supreme Court argument, Boasberg questioned Kambli about the decision, noting that the court had not reached the merits of the administration’s invocation of the Alien Enemies Act. Boasberg asked whether Kambli acknowledged that the Supreme Court didn’t reach the arguments about the administration’s use of the act itself, and Kambli conceded that the court “did not analyze that precise issue.”
“I assume that’s a yes,” Boasberg replied.
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