By Devan Cole, CNN
Nashville (CNN) — Nine months after Kilmar Abrego Garcia, the Salvadoran national who was illegally deported by the Trump administration, became a defendant in one of the government’s marquee criminal cases, prosecutors are on the defensive in court as they try to convince a federal judge that the case wasn’t vindictively pursued.
The high-stakes hearing at a federal court in Nashville is the latest flashpoint in a sprawling web of court cases Abrego Garcia has found himself in since his hasty deportation last March to a notorious mega prison in El Salvador and the administration’s initial reluctance to bring him back came to symbolize President Donald Trump’s slapdash and contentious approach to immigration enforcement.
That the proceeding before US District Judge Waverly Crenshaw is happening at all is a remarkable turn of events in a criminal case that Deputy Attorney General Todd Blanche once described as “strong.” The department has for months tried to avoid being put in the awkward position of having to defend its prosecution of Abrego Garcia but amid the legal wrangling, it’s been forced to turn over some internal communications that further undermined the case.
Three officials, including Robert McGuire, a top-ranking federal prosecutor who secured the pair of human smuggling charges last year, will answer questions under oath on Thursday about the government’s decision making in the run-up to Abrego Garcia’s indictment.
Also in the hot seat are two agents from the Department of Homeland Security’s investigatory arm, who are set to testify about the agency’s decision to reopen a criminal probe into Abrego Garcia last year after several courts – including the Supreme Court – ordered the government to work to bring him back from El Salvador.
The integrity of the case has come under serious doubt by Crenshaw in recent months as he’s assessed Abrego Garcia’s claim that he’s being prosecuted in retaliation for successfully challenging his wrongful deportation, concluding that the Maryland father of three has shown evidence of a “realistic likelihood” that he’s the target of a vindictive prosecution. That conclusion could lead him to soon throw out the case – unless the trio of witnesses can convince him otherwise.
Requests by criminal defendants for judges to toss out charges based on their claim that they’re being vindictively prosecuted face extremely high hurdles in court and are overwhelmingly unsuccessful because of how difficult it can be to connect prosecutors’ decisions to a retaliatory motive.
But a pair of blockbuster rulings by Crenshaw last year revealed the shaky ground the case was on. The appointee of former President Barack Obama said that the burden was now on the government to fend off a presumption that officials only reopened a years-old probe into Abrego Garcia, and subsequently asked a grand jury to approve charges, to punish him for filing a lawsuit over his deportation.
“The government had a significant stake in retaliating against Abrego’s success in the Maryland lawsuit and deterring any future efforts in that lawsuit,” Crenshaw wrote in the first ruling, issued in October.
In that decision, the judge carefully laid out key moments leading up to Abrego Garcia’s indictment that appeared to support his claim that officials only reopened their investigation into him in response to his winning streak in the deportation case. He specifically called out public statements made by Blanche on the day Abrego Garcia was arrested that “directly linked the Maryland lawsuit to the investigation of criminal behavior by Abrego.”
“At minimum, this suggests the (administration’s) frustration with Abrego, and that his case was not a run-of-the-mill prosecution,” he wrote. “Even assuming the individual motive of Acting US Attorney McGuire was pure, others’ motives, like fruit from a poisonous tree, may taint this prosecution.”
In a ruling issued in December, Crenshaw brushed aside claims by McGuire that he was the sole decision maker as his office weighed charges against Abrego Garcia, with the judge saying instead that a trove of internal documents “suggest” the prosecutor worked with department officials in Washington, DC, “who may or may not have acted with an improper motivation.”
Among those officials is Associate Deputy Attorney General Aakash Singh, who works under Blanche and communicated directly with McGuire last spring about the investigation into Abrego Garcia as the US Attorney’s Office in Nashville was considering bringing a case.
That neither Singh nor Blanche are testifying at the hearing could prove consequential since the judge has already signaled dissatisfaction with the representations made by McGuire about the charging decisions.
But if Crenshaw decides that the testimony provided Thursday is enough to refute his preliminary finding from last year, it’ll set up another round of court proceedings in which he’ll have to resolve a request from Abrego Garcia’s lawyers for him to summon Blanche and Singh to Nashville to testify at yet another hearing.
McGuire, who now serves as an assistant US attorney in the office he once temporarily helmed, has previously argued that even if others in the administration “have alleged ill will” toward Abrego Garcia, “there is nothing before the court to establish that such alleged ill will actually motivated the prosecution.”
He said in a sworn statement last September that he “never received any direction” from officials at DOJ headquarters “that was unethical or inappropriate” and that choosing to charge Abrego Garcia “was the correct legal decision.” Those assertions and others will be under the microscope Thursday as he takes the witness stand.
Rare hearing
Legal experts said that Crenshaw’s earlier rulings have put the government on notice that the case is quickly unraveling.
“It is exceedingly rare that, as here, the evidence triggers the presumption of a vindictive prosecution that the government must rebut. This puts the government’s counsel on their heels,” said retired federal Judge John Jones.
“The government’s witnesses are going to have to try to explain away a determination to prosecute Abrego Garcia that came from Main Justice and only after he was released,” Jones added. “From the defense’s standpoint, this is a lawyer’s dream.”
Abrego Garcia has been on pre-trial release in Maryland and is simultaneously fighting off efforts by the administration to re-deport him, this time to a country other than El Salvador.
His initial deportation to that country, which he is from, violated a 2019 court order that expressly prohibited officials from sending him back there because he feared gang violence there.
After a federal judge in Maryland said the government needed to work to “facilitate” his return, officials resisted complying with her order for months, but eventually partnered with El Salvador to return him in early June. He was arrested on the human smuggling charges when he returned to American soil.
Abrego Garcia has pleaded not guilty to the pair of charges, which stem from a 2022 traffic stop that was the subject of a federal investigation that closed days before he was deported last March.
Prosecutors elected to not bring charges following the stop, but in the indictment secured last year, they alleged that the nine Hispanic male passengers who were in the car with Abrego Garcia were being smuggled as part of a yearslong international smuggling ring that he was involved in.
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