Kilmar Abrego Garcia is guilty of something, even if the government isn’t quite sure what it is.
At the June 6 press conference announcing his return to the U.S. from El Salvador and his indictment, Attorney General Pam Bondi promised a “major update in an important case.”
She went on to list a series of crimes — everything from the trafficking of women, children, gang members, guns and drugs, to the solicitation of nude photos from a minor and the murder of a rival gang member’s mother.
But the actual indictment charged him only with the unlawful transportation of undocumented aliens based on a single traffic stop in Tennessee from 2022. The average sentence for such a crime is just 15 months.
This was hardly a “major update in an important case,” until you consider what is at stake — namely the legitimacy of the current administration’s aggressive deportation policies.
While campaigning, President Trump promised to prioritize deportation for people without legal status who were a threat to public safety. But Abrego Garcia, who had been living in the United States for over a decade, had no criminal record before he was mistakenly deported to El Salvador this year.
The 29-year-old Salvadoran man was married and working in construction. Meanwhile, the Trump administration has consistently claimed, with little to no evidence, that Abrego Garcia is a dangerous gang member whom they had every right to deport, even if they failed to follow all the steps required to afford him due process and sent him to a country where they were not supposed to.
It is clear their approach to immigration enforcement is either indiscriminate or incompetent; or both.
To prove that is not the case, it has become necessary for the Justice Department to paint Abrego Garcia as an extreme threat to public safety. To that end, prosecutors tried to convince the judge overseeing his case that Abrego Garcia was such a danger that he should be denied bail. In so doing, they revealed just how little evidence they have to support the only charge they have been able to file against him.
The decision by Judge Barbara Holmes denying their motion for pretrial detention began by stating the obvious: Even if she releases Abrego Garcia, he will remain in federal custody because he is facing deportation.
Nevertheless, the Justice Department insisted on having a hearing in which their witnesses would be subject to cross-examination by the defense — a strategy designed to produce quotes for conservative commentators while weakening their case in court.
Holmes then explained the difference between human trafficking and human smuggling, a distinction apparently lost on the Justice Department’s lawyers.
Human trafficking involves exploiting men, women or children for the purposes of forced labor or commercial sexual exploitation. Human smuggling involves the provision of transportation or fraudulent documents to an individual who voluntarily seeks to gain illegal entry into a foreign country.
Both are federal crimes, but they are very different types of offenses. After reminding the Justice Department what Abrego Garcia has been charged with, the judge assessed the credibility of the prosecution’s main witnesses.
The first was the purported domestic leader of a human smuggling organization. He has two prior felony convictions and has been deported five times.
In exchange for accusing Abrego Garcia of being a participant in his organization, he was granted early release from a 30-month federal prison sentence, will not be deported and will be given permission to work in the U.S.
The second cooperating witness was a member of the same human smuggling organization, has also been previously deported and is currently in federal custody due to pending criminal charges. He is closely related to the first cooperating witness.
In exchange for accusing Abrego Garcia of human smuggling, he expects to be released from federal custody.
Admittedly, it is difficult to successfully prosecute high-ranking members of organized crime operations without the cooperation of at least some individuals who worked for them. Prosecutors have traditionally accomplished this by threatening to charge everyone within the organization with a conspiracy to commit all of the alleged crimes committed by the organization, even individuals who played only a small role.
Individuals who cooperate with the prosecution and offer to testify against others are often rewarded with plea bargains that drastically reduce their potential sentences. How lenient the prosecution is toward members of the organization has traditionally been based on an individual’s respective role in the crimes committed by the organization.
For example, someone who played a small part in the criminal enterprise would traditionally be granted leniency in exchange for testimony so that the prosecution could hold the leaders fully accountable for their crimes.
In the Abrego Garcia case, the prosecution is doing the exact opposite. Under their own theory, Abrego Gargia is simply a cog in the machinery of a multinational human smuggling operation. Yet to convict him of a single count of human smuggling and deport him, they are willing to release from custody the leaders of that organization and permit them to remain in the U.S. This is the equivalent of releasing a mob boss and his chief enforcer to convict a low-level lackey.
After failing to convince a judge that he was a threat to public safety, the Justice Department said that it still plans to deport him, but that there was no timeline for when that would happen.
This raised the possibility that it might just decide to deport him while his criminal charges were pending, effectively dismissing the charge they filed against him and letting him go free in another country.
Once again, this is the exact opposite of how you would expect the Justice Department to proceed if it genuinely believed he had been engaged in human trafficking for the better part of a decade.
But perhaps the plan never was for Abrego Garcia to “face justice,” but just a slew of unfounded allegations made by the attorney general at a press conference.
Last week, a Justice Department spokesman tried to offer reassurances that Abrego Garcia would first be tried in criminal court, but while doing so he once again falsely claimed that he had been charged with human trafficking.
The Justice Department’s duplicity or disorganization led the lawyers representing Abrego Garcia to file a petition last Friday asking that he not be released because he feared that he would be deported and never “face justice."
This was a prescient move by the lawyers representing him, since in a hearing on Monday, a Justice Department lawyer announced that they had no intention of waiting until the pending criminal charge was resolved before deporting him.
This statement is at odds with the one made by Bondi at her press conference, that he would only be deported "upon completion of his sentence," which led to the judge to remark that getting answers from this administration is like "nailing Jell-O to a wall."
Prosecutors are supposed to follow the facts wherever they lead. In this case, the prosecution is going where they want and will lead witnesses to where they want to go.
The case against Abrego Garcia is purely political.
John Gross is a clinical associate professor of law at University of Wisconsin Law School and director of the Public Defender Project.
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