A running theme of the Trump administration’s legal efforts is not only pressing aggressive claims, but also resisting, misleading and – as one federal judge put it last week – “outright lying” in service of President Donald Trump’s agenda.
The latest instance comes in the case of Kilmar Abrego Garcia, whose legal ordeal has provided a lot of material when it comes to shady government conduct.
Abrego became a famous target of the administration’s bumbling malevolence after the government illegally sent him to a Salvadoran megaprison earlier this year and swore he’d never be back in the U.S. — and then finally achieved his court-ordered return after developing a criminal case to have waiting for him. While theoretically pressing that case toward trial, the administration is moving to quickly deport Abrego, as he seeks to dismiss the criminal charges on the grounds that they’re unlawfully vindictive and selective. He has pleaded not guilty to the charges of unlawfully transporting undocumented immigrants.
The latest action on Abrego’s criminal docket shows his lawyers bringing the government’s misdirection in his immigration litigation to the attention of the judge overseeing his criminal case in Tennessee.
That litigation features arguments over where the government can deport Abrego, because he’s a Salvadoran native and an immigration judge previously ruled that he can’t be sent back there, citing his fear of persecution (hence why it was illegal to send him there earlier this year). That raises the question of which “third country” he can be sent to.
The government previously said that, if he would have agreed to stay in custody and plead guilty in his criminal case, then he could be deported to Costa Rica, which, like El Salvador, is a Spanish-speaking country in Central America. Abrego declined to stay in custody, and the government has since floated several remote African options for his deportation – Uganda, Eswatini, Ghana and now Liberia. The government more recently said that Costa Rica wouldn’t accept him without further negotiations.
But Abrego’s lawyers wrote to the Tennessee judge in his criminal case that the government’s representations about Costa Rica in his immigration litigation “were revealed to be flatly false” on Friday night. They cited a report in The Washington Post quoting Costa Rica’s minister of public security as saying that his country would accept him without further negotiations.
So, what does that have to do with Abrego’s pending motion to dismiss his criminal charges on the grounds of vindictive and selective prosecution?
His lawyers argue that the government’s “shocking (yet, sadly, now predictable) conduct” provides three reasons.
First, they wrote, “the government’s misrepresentations are unmistakable proof of continued vindictiveness.” Second, they wrote, “the government’s recent conduct emphasizes the importance of meaningful discovery and testimony on vindictive and selective prosecution that goes up to the highest levels of the Department of Justice and the Department of Homeland Security.” And third, they wrote, “given the Department of Justice’s brazen attempts to mislead the courts and defy court orders, documentation of how the Department of Justice has collected, reviewed, and produced discovery material in response to this Court’s orders is necessary to ensure that the government has made ‘a good faith effort to comply’ with the Court’s discovery order.” The DOJ has not yet responded to the filing, which Abrego’s lawyers lodged on Sunday. How this latest revelation affects Abrego’s criminal case, if at all, remains to be seen. Indeed, his potential removal could moot the criminal proceedings entirely – and that may be just as well, as far as the administration is concerned. The criminal case always seemed to be more of a political tool. That’s not unusual in this administration, where Abrego isn’t the only high-profile defendant to raise what were previously rare claims of vindictive and selective prosecution. James Comey and Letitia James, for example, have done the same in Virginia, though they just got their cases dismissed on other grounds, due to what a federal judge found to be the unlawful appointment of their Trump-installed prosecutor, Lindsey Halligan. Abrego may also be unlikely to see a criminal trial – like the prosecutions of the former FBI director and New York’s attorney general, it’s more a question of how much further damage Trump government lawyers do along the way. 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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