Judge Says DOJ May Be Vindictively Prosecuting Kilmar Abrego Garcia

The case of Kilmar Abrego Garcia—the immigrant whose deportation to a Salvadoran prison in March caused national outrage—has taken a new turn. On Friday, a federal judge found that the Trump administration may be pursing charges against him out of vindictiveness. Now, the judge is allowing evidence gathering and a hearing to determine if the Justice Department’s criminal prosecution of Abrego Garcia should be dismissed as a “selective or vindictive prosecution.”

In March, the Trump administration sent Abrego Garcia, originally from El Salvador, to a notorious Salvadoran prison, despite a judge’s previous order preventing his return to his home country. The government acknowledged it removed him by mistake, but then refused for months to return him to the United States. The government finally returned Abrego Garcia to the United States once it had filed criminal charges against him in Tennessee in connection to a traffic stop there in 2022, in which he was pulled over for speeding and questioned about transporting other immigrants in the vehicle he was driving. He wasn’t charged then, but now, more than years later, the government alleges that he was part of a human smuggling operation, transporting undocumented people within the United States.

Abrego Garcia’s lawyers have argued that the case should be dismissed as a vindictive and selective prosecution. They noted that such dismissals are rarely granted, but argued that this should be one such rare case. Tennessee District Court Judge Waverly Crenshaw Jr., an Obama appointee, agreed that the matter should be explored.

In his opinion, Crenshaw pointed to public statements from several Trump administration officials celebrating Abrego Garcia’s indictment. Most telling, Crenshaw wrote, are the actions of Deputy Attorney General Todd Blanche.

After Abrego Garcia’s removal to El Salvador, he had sued for his release in Maryland. In a TV interview, Blanche later revealed that the Justice Department only launched the criminal investigation into Abrego Garcia after the judge in the Maryland case ruled in the man’s favor. The implication, then, is that the government may have launched criminal charges against Abrego Garcia as retaliation for the civil case where he questioned his deportation—and where the judge “found that it ‘had no right to deport him,’ and ‘accus[ed] [the government] of doing something wrong.’”

“The Fifth Amendment forbids the government from punishing Defendants for exercising their constitutional and statutory rights,” Crenshaw continued. “Consequently, Defendants may challenge the government’s charging decisions for actual or presumptive vindictiveness.”

This order comes at a perilous time for Abrego Garcia. After his return to the United States, he was jailed in Tennessee. At one point, his lawyers asked that he be allowed to remain in jail, because they feared the administration would deport him if released. Since August, the administration has been threatening to remove him to Uganda—a country where he’s never lived. This is part of the government’s effort to deport people to far-away countries, with often dangerous conditions, if they cannot be returned to their country of origin. (This is one of many Trump policies that the Supreme Court has green lit on its shadow docket—usually brief and unexplained opinions made without a hearing.)

Now, Abrego Garcia is fighting his deportation even as the criminal prosecution against him in Tennessee proceeds. This week, an immigration judge in Baltimore denied his asylum request, which he has 30 days to appeal.

Even as his claims of vindictive prosecution move forward, the administration continues to work to remove him: “One thing is certain: This Salvadoran man is not going to be able to remain in our country,” Department of Homeland Security spokeswoman Tricia McLaughlin said in a statement to the Washington Post. Abrego Garcia will “never be loose on American streets.”