Kilmar Abrego Garcia is a true victim of weaponization
The regime refuses to leave him alone *because* he's an everyday person.
This edition of PN is made possible by paid subscribers. Become one đ
The Department of Justice used to be insulated from the whims of the president. It also used to be staffed with experienced, non-political career attorneys. And those attorneys used to enjoy a level of deference from the federal courts, a default presumption that is pretty much gone now.
Perhaps no case traces this fall better than that of Kilmar Abrego Garcia. Last week, US District Judge Waverly Crenshaw Jr. granted Abrego Garciaâs motion to dismiss his criminal indictment based on vindictive prosecution. Itâs incredibly difficult to win these motions, but the administrationâs treatment of Abrego Garcia has been so flagrantly unethical and cruel that he managed to prevail.
To understand why Judge Crenshaw tossed the charges, we need to go back to 2025 and revisit the DOJâs abysmal behavior in Abrego Garciaâs separate immigration case. Indeed, Crenshawâs decision shows that the DOJ landed on the genius idea of ginning up charges against Abrego Garcia as soon as it became clear their antics in his habeas case would not work.
âVindictiveâ doesnât do it justice
Last March, the administration deported Abrego Garcia to El Salvadorâs horrific Terrorism Confinement Center (CECOT) despite a withholding of removal order barring him from being sent back to his home country, as heâd shown a credible fear that he would be persecuted there. He filed a habeas petition challenging his detention, and then the government played a bunch of stupid games, like admitting he was removed in error but then refusing to bring him back.
This went all the way up to the Supreme Court and back down again, but by April 17 of last year, the administration was running out of road after the Fourth Circuit Court of Appeals denied its request to pretty please stay the lower court order requiring Abrego Garciaâs return.
Now, thanks to Judge Crenshawâs decision dismissing the indictment, we know that plans to indict Abrego Garcia began that same day.
That extremely non-coincidental timing matters. Winning a vindictive prosecution motion requires a defendant to show that the government prosecuted them in retaliation for exercising their legal rights. Itâs what is typically called a âbut-forâ test: But for Abrego Garcia filing his habeas petition demanding that the government bring him back to America, the DOJ would not have prosecuted him.
Getting to this point took a lot of time and a lot of fights with the government. A vindictive prosecution claim has to proceed in stages. Defendants can allege both actual and presumptive vindictiveness, as Abrego did here. The former, however, requires direct evidence of retaliation. Unless you have a prosecutor saying something like âwe opened this prosecution to punish you for a constitutionally-protected right,â you are out of luck.
Most often, defendants prevail by showing presumptive vindictiveness, which is established by indirect evidence. A defendant has to show that the prosecutor had a stake in deterring them from exercising their rights and that the prosecutorâs conduct was unreasonable.
Hereâs the catch: the defendant has to make that showing before obtaining any discovery materials from the government related to the decision to bring charges. But thanks to the cavalcade of bad behavior in broad daylight from the DOJ, Judge Crenshaw ruled last October that Abrego Garcia had met that burden.
Once Crenshaw found that Abrego Garcia had made a preliminary showing of vindictiveness, the burden then shifted to the government, which has to rebut the presumption of vindictiveness to keep the indictment alive. Crenshaw also granted Abrego Garciaâs discovery request, which unlocked the internal communications about his prosecution and hoooooo boy, where to begin.
First, thereâs the timing. Crenshaw even included a helpful little chart so you can see how the government swung into action as soon as it was clear that Abrego Garcia would be returning to the United States. The governmentâs attempt to explain that away was comical. You see, Homeland Security Investigation agents in Tennessee just decided on their own, no pressure from Main Justice, to reopen an investigation into a traffic stop from 2022. And the then-acting US Attorney for the Middle District of Tennessee, Rob McGuire, just independently decided to start drafting a criminal complaint. Total coincidence!
Yeah, not so much. Assistant Attorney General Aakash Singh, one of then-Deputy Attorney General Todd Blancheâs worst minions, directed everything and was in constant contact with HSI personnel and prosecutors in the US attorneyâs office in the Middle District of Tennessee. The then-chief of the criminal division in that office, Ben Schrader, wrote a formal memo advising against prosecuting and quit the day Abrego Garcia was indicted.
The government also tried to say that it wasnât being vindictive â it had just found brand new evidence of Abrego Garciaâs life of crime. Crenshaw rapped the DOJâs knuckles on that one, pointing out that some of the alleged new evidence dredged up had been available to the government since the traffic stop and that other bits of alleged new evidence were obtained after the decision to prosecute happened.
Thereâs also the part where then-Deputy Attorney General Todd Blanche went on Fox News the day Abrego Garcia was arrested to say that the government began âinvestigatingâ Abrego Garcia only after âa judge in Marylandâ questioned the governmentâs decision to deport him and that he was only returned âto face justiceâ in the criminal case. Way to say the quiet, illegal, vindictive part out loud, Todd.
The government could have put Blanche on the stand to rebut the presumption that this was vindictive, but they didnât. The government could have put Singh on the stand to rebut the presumption that his actions in directing the investigation were vindictive, but they didnât. The government could have put HSI Special Agent John VanWie on the stand to rebut the presumption that he reopened the investigation at the behest of the DOJ, but they didnât.
What Crenshawâs decision really brings home is that Blanche and Singh had control of this prosecution from the start:
Notwithstanding McGuireâs purported belief that he was the sole decisionmaker, this Court cannot ignore the chain of command that McGuire reported to: Singh, Blanche, and then Bondi. Blancheâs statements directly tie Main Justice to the reopening of the investigation in response to Abregoâs successful [habeas] lawsuit. Together with Singhâs oversight of the indictment process, the credible objective evidence shows that, âbut forâ Abregoâs successful lawsuit, the Government âwould not haveâ indicted Abrego.
Honestly it doesnât get much clearer than this: political appointees demanding career investigators and prosecutors figure out something, anything, to hurt Abrego Garcia with because they were furious that he won his habeas case.
Unfortunately, the government can appeal the dismissal and has already said it will. This actually isnât a situation where the government would be pushing the envelope. Thereâs a federal statute that governs which types of lower court rulings in criminal cases are appealable, and the Sixth Circuit Court of Appeals, which covers Tennessee, has case law on it as well.
The lawfare never ends
This probably feels a little counterintuitive and gross. What about double jeopardy, right?
Hereâs the thing. Double jeopardy only comes into play at the trial stage. The government canât put you âin jeopardy of life or limbâ twice for the same offense. But dismissals for vindictive prosecution have nothing to do with whether a defendant is guilty or not. Instead, itâs a constitutional due process challenge. Abrego Garcia wasnât asking the court to find him innocent of the charges. Instead, he was asking the court to find that the charges were brought for an improper reason and therefore his due process rights were violated.
Also unfortunately, this does nothing to protect Abrego Garcia from the administrationâs attempts to remove him to random African countries rather than send him to Costa Rica, which has agreed to take him and is where Abrego Garcia has requested to go. Heâs still fighting that in his habeas case. At the moment, he is protected from removal to anywhere thanks to an order in that immigration matter, but the government is relentless.
The amount of time, money, and resources that the government has expended on this is absurd. The government could have been entirely rid of Abrego Garcia back in August 2025, when he designated Costa Rica as his removal choice. But they want to punish him far more than they want him gone. And if you put yourself in the vile mindset of Blanche and the like, it makes a sick sort of sense.
The Trump regime isnât targeting Abrego Garcia for punishment because they think he is some sort of master criminal. They want to punish him because heâs an everyday guy who somehow managed to force the US government to bring him home. They canât bear the thought of just letting this go and letting him go on with his life in a country of his choice. And whatâs more vindictive than that, really?
Thatâs it for today
Weâll be back this afternoon with the first episode of the rebranded PN Pod (featuring special guest Juliet Jeske), and then tomorrow with a special Saturday edition of the newsletter.
Thanks for reading, and for your support.
He deserves a monetary gift for harassment!
Thanks for laying out how corrupt our government has been in this case. âVindictiveâ and evil and fundamentally unjust. A prime example for history to display as an illustration of the administrationâs SOP.