Abrego Garcia Released As Court Tells DOJ This Sure Looks Like Vindictive Prosecution

from the embarrassing-the-government-isn’t-a-crime dept

At long last, El Salvador native Kilmar Abrego Garcia has been released from custody. Abrego Garcia was among the hundred-plus migrants rounded up by ICE and shipped to El Salvador’s infamous torture prison, CECOT. Months of litigation ensued. The Trump administration was ordered (multiple times) to bring him back from El Salvador, with the court finding Garcia’s due process rights (along with most of those sent to CECOT) had been violated.

The government has done everything since then to make Abrego Garcia miserable. Once Garcia was returned to the US, he was immediately jailed as the government dreamed up a bunch of serious crimes to charge him with. According to multiple statements (mainly tweets and such) made by DHS and the administration, Garcia is an MS-13 gang member and human trafficker. Those charges were somehow extracted from a years-old traffic stop where Garcia was released and never charged with anything, much less placed into the deportation pipeline.

Garcia has fought the government every step of the way. And, in return, the government has been vindictively combative. Costa Rica’s government has agreed to allow Garcia to be deported there. But the government wants a head on a spike to intimidate other migrants, so it has given Garcia the option of being prosecuted (while remaining in jail the entire time) or being booted out of an ICE plane in extremely dangerous places like Liberia or Uganda.

If this all looks like a petty group of administration officials trying to punish someone for fighting back, it also looks that way to the court handling the criminal case brought against Abrego Garcia. Not only has the court released Garcia pending his trial, it is now about halfway towards dismissing the case entirely if the government can’t come up with an explanation that doesn’t sound like revenge.

The federal judge overseeing the human smuggling case against Kilmar Abrego Garcia has canceled an upcoming January trial.

In lieu of that proceeding, the court will hold a one-day evidentiary hearing dedicated to ferreting out whether or not the Maryland man was vindictively and selectively prosecuted by the government.

This week, U.S. District Judge Waverly Crenshaw, a Barack Obama appointee, slammed the brakes on the controversial prosecution in a relatively terse four-page order – a decided victory for the father of three and an equally stinging loss for the Trump administration.

In the ruling, the judge said the evidence provided by the defense had turned the case in Abrego Garcia’s favor long ago – at least on the due process issue of whether the prosecution is vindictive.

As the order notes, the court is doing the DOJ a favor here. There’s apparently already enough on the record that supports Abrego Garcia’s vindictive prosecution allegation. But the government will get one chance to rebut this early next year.

According to Abrego, the Government has already shown that it cannot [rebut his allegations], given what Abrego asserts to be troves of evidence in the record indicating that his prosecution is actually vindictive. (See Doc. No. 275 at 11–15). Based on this record, Abrego argues that the Court could rule on his Motion without an evidentiary hearing or the testimony of Blanche, McHenry, and Singh.

Nevertheless, the government asserts it can rebut the presumption, and that the evidence does not show actual vindictiveness. To rebut the presumption, the government intends to rely on the testimony of Supervisory Special Agent John VanWie (“SA VanWie”) of Homeland Security Investigations (“HSI”) Baltimore and Special Agent Rana Saoud (“SA Saoud”) of HSI Nashville, and, perhaps, the testimony of Assistant U.S. Attorney Robert McGuire.

Considering this landscape, and Abrego’s insistence that the current record alone warrants dismissal in his favor, whether the Court needs to hear testimony from Blanche, McHenry, and Singh, is questionable. Still, for the sake of thoroughness and to make sure that all parties are fully heard, the Court finds it prudent to proceed with an evidentiary hearing on Abrego’s Motion In doing so, it will limit the hearing to only the second step of the prosecutorial vindictiveness analysis: whether the government can produce objective, on-the-record explanations for Abrego’s prosecution that rebuts the presumption of vindictiveness. If the government can rebut that showing, the Court will revisit the government’s Motion to Quash…

Apparently the government thinks it can win this battle by bringing some mouths to a document fight. Abrego Garcia has already obtained plenty of damning information (which the Trump administration adds to on nearly a daily basis) that makes it clear this is all about punishing him for daring to object to his deportation to CECOT.

I’m sure everyone called to testify will say things about how this is all an extremely normal way to handle someone who asserted their due process rights. But maybe the government should just give up on this one. If the testimony manages to raise questions about the alleged vindictiveness, it doesn’t let the government off the hook. All it does is open it up to further discovery via Abrego Garcia’s pending subpoenas.

And I’m sure the judge will have something to say about the DHS’s actions over the weekend, where it took to social media to complain about a gag order while simultaneously violating it.

The Department of Homeland Security’s complaint about being under a gag order on Saturday in its case against Kilmar Abrego Garcia, a Maryland man who the Trump administration illegally deported to a notorious prison in El Salvador earlier this year, likely violated the court order.

Tricia McLaughlin, the Assistant Secretary for Public Affairs at the DHS, said that Abrego Garcia being able to make viral TikTok posts was unfair in a rant on X: “American justice ceases to function when its arbiters silence law enforcement and give megaphones to those who oppose our legal system.”

Not only did Trish violate the gag order, but she did so while reposting a still-unproven allegation about Abrego Garcia:

If you can’t read/see what McLaughlin reposted, it’s an X post by MAGA grifter/podcaster Benny Johnson that reads:

MS-13 terrorist Kilmar Abrego Garcia was released by a rogue judge and is now making TikToks.

To be clear, the gag order doesn’t prevent Abrego Garcia from making videos of himself lip-synching to Christian songs. The gag order targets the Trump administration because it has spent the last several months attacking Abrego Garcia on social media and smearing him with unproven allegations. Since this obviously affects Garcia’s right to a fair trial, the judge reasonably ordered the government to knock it off.

And it has responded by reposting a smear and bitching about an “activist judge” — the same judge it will have to answer to late next month. Odds are the government is going to be called to court well ahead of this deadline to explain why it thinks it doesn’t need follow orders handed down by federal judges.

Filed Under: abrego garcia, benny johnson, cecot, dhs, doj, donald trump, ice, kilmar abrego garcia, tricia mclaughlin, trump administration, vindictive prosecution