Litigation over Kilmar Abrego Garcia continues to dog the Trump administration, which illegally sent him to El Salvador in March, then said it would never bring him back him to the U.S., then returned him to the U.S. and now has to prove that the criminal case it had waiting for him upon his return isn’t unconstitutionally vindictive. All the while, the administration is working to remove him from the country again, possibly to the West African nation of Liberia, to which he has no apparent ties.
Deportation could moot the criminal proceedings. Whether and when the administration can remove him again is the subject of separate pending litigation in Maryland.
But so long as Abrego remains in the U.S., the Trump Justice Department is stuck having to prove the Tennessee criminal case, which the government seemed to develop in an effort to save face when it finally complied with court orders for his return in June. At the time, Attorney General Pam Bondi said Abrego “has landed in the United States to face justice.” She said, “This is what American justice looks like.”
Now, remarks from Bondi and Homeland Security Secretary Kristi Noem have drawn a rebuke from the judge presiding over the criminal case, in which federal prosecutors allege that Abrego illegally transported undocumented immigrants. He has pleaded not guilty. The rebuke came Monday in one of two rulings issued by U.S. District Judge Waverly Crenshaw in the Middle District of Tennessee. In granting Abrego’s motion to require DOJ and DHS officials to refrain from making “prejudicial extrajudicial statements,” Crenshaw wrote that “government employees have made extrajudicial statements that are troubling, especially where many of them are exaggerated if not simply inaccurate.”
The Barack Obama appointee highlighted statements from Bondi and Noem that he said appeared to violate a court rule prohibiting extrajudicial statements (that is, those made outside of court) that have a “substantial likelihood of materially prejudicing” the defendant’s right to a fair trial. He cited Noem’s statement that Abrego is an “MS-13 gang member, human trafficker, serial domestic abuser, and child predator,” and Bondi’s statement that Abrego played “a significant role in an alien smuggling ring” that “was his full-time job,” and that he “was a smuggler of humans and children and women.”
Crenshaw issued an order accompanying his ruling that puts DOJ and DHS employees “on notice” of the court rule against making such statements. He warned that any violations “may be subject to sanctions.” So unless Bondi, Noem or any other officials make it a point to test the judge’s order, nothing more may come of it.
‘Not an ordinary case’
The judge’s other order Monday gets closer to the substance of the case and how it will proceed, specifically concerning Abrego’s bid to dismiss the charges on the grounds that they’re unconstitutionally vindictive. Ahead of a hearing on the subject set for next week, Crenshaw noted that the defendant has “established a reasonable likelihood that his prosecution was motivated, at least in part, in retaliation for him exercising his constitutional rights in his Maryland immigration case.”
The judge conceded that in an “ordinary case,” the government would be right to shield documents that reveal internal motivations behind prosecutions. But he wrote that this “is not an ordinary case.”
The judge issued an order accompanying that ruling to say that he’ll review certain materials himself before deciding what exactly Abrego can use in his attempt to prove vindictiveness. Crenshaw gave the government until noon Wednesday to give him evidence including, among other things, all documents reflecting government motivations behind the charging decision, as well as documents related to Ben Schrader, the former chief of the criminal division of the Tennessee office that brought the case. (Schrader’s resignation was reportedly prompted by the case being pursued for political reasons.) In a previous filing, the DOJ said Schrader had drafted a memo detailing why he wouldn’t bring the case, but the DOJ has argued that such evidence is “not properly subject to disclosure.” Among the officials whom Abrego wants to subpoena for the upcoming hearing is Deputy Attorney General Todd Blanche, and the government’s attempt to quash the subpoena is being litigated this week. These motions are generally difficult for defendants to win, though, as Crenshaw observed, this isn’t an “ordinary case.” But what “American justice looks like” at the moment is the administration having to justify how it brought it in the first place. 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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