Kilmar Abrego Garcia wants Deputy Attorney General Todd Blanche to testify at an upcoming hearing to support Abrego’s claim that his prosecution by the Trump Justice Department is unconstitutionally vindictive. The DOJ said Wednesday that it will move to quash a subpoena for Blanche and other DOJ officials.
Whether Blanche winds up testifying or not, the Abrego hearing next month could be explosive, and it comes as the DOJ seeks to defend the propriety of several high-profile political prosecutions in President Donald Trump’s second term. Former FBI Director James Comey also has filed a motion arguing that his charges are vindictive and selective, as have Rep. LaMonica McIver, D-N.J., and sandwich thrower Sean Dunn in Washington. New York Attorney General Letitia James will likely do the same at some point after she’s arraigned on her indictment Friday.
To be sure, such motions generally are difficult for defendants to win. Even getting judicial permission to gather evidence and hold a hearing to probe the prosecution’s motives is rare. But even if the government ultimately fends off these claims, the unusually blatant political motivation behind these prosecutions means the DOJ and the Trump administration are now effectively on trial to defend themselves before they can hope to get any of these cases to juries (if, in fact, that is their hope).
In Abrego’s case earlier this month, the presiding Tennessee judge preliminarily approved the defendant’s attempt to pursue his rare claim. “In sum, Abrego has carried his burden of demonstrating some evidence that the prosecution against him may be vindictive,” U.S. District Judge Waverly Crenshaw wrote.
The Obama-appointed judge homed in on remarks by Blanche, one of several former Trump personal lawyers who now work at the Justice Department. “Most tellingly,” Crenshaw wrote, the high-ranking DOJ official made comments during a television interview that “linked Abrego’s criminal charges to Abrego’s civil lawsuit in Maryland.” Abrego filed the lawsuit in his attempt to return to the U.S. after the government illegally sent him to El Salvador.
“The Court finds Abrego has sufficiently presented some evidence that the Government had a stake in retaliating against him for exercising his rights in the Maryland suit and deterring him from continuing to exercise those rights,” Crenshaw wrote. He noted that the timeline of the civil lawsuit followed by criminal charges “suggests that Abrego’s prosecution may stem from retaliation by the DOJ and DHS due to Abrego’s successful challenge of his unlawful deportation in Maryland.”
Abrego has pleaded not guilty to the charges of illegally transporting undocumented immigrants. The charges stem from a 2022 traffic stop, which led Crenshaw to observe that the length of time between then and Abrego’s charging in 2025 is “atypical” in his jurisdiction.
On Wednesday, the DOJ signaled its intent to move to quash the Blanche subpoena in an opposition filing to Abrego’s bid to compel discovery. One of the notable aspects of the filing — showing that the hearing could be explosive even without Blanche — is that the government says it assumes Abrego will call Ben Schrader, former chief of the criminal division of the U.S. attorney’s office in Tennessee handling the Abrego case, as a witness.
Schrader’s resignation from the office was reportedly prompted by the Abrego case being pursued for political reasons. In its filing Wednesday, the DOJ said Schrader “drafted a memorandum detailing his reasons that he (Mr. Schrader) would decline to charge the case,” though the DOJ argues that it’s “not properly subject to disclosure.” A theme running throughout the DOJ’s opposition — and through litigation in Trump’s second term more broadly — is what’s known as the presumption of regularity. It’s a notion embedded in the law that the government acts normally and properly. The DOJ invokes that presumption here in seeking to limit the degree to which Abrego can probe official motivations and evidence. Judges have already questioned the government’s entitlement to that presumption in Trump’s second term. Abrego’s case shows how irregular official behavior has been this year, and that’s just in one of several cases raising the rare claim of vindictive and selective prosecution. But whether these defendants can harness that irregularity to get their cases dismissed remains to be seen. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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