A federal judge in Tennessee is ordering federal prosecutors to turn over some documents to lawyers for Kilmar Abrego Garcia as they try to show his indictment on human smuggling charges was the product of vindictive prosecution.
U.S. District Judge Waverly Crenshaw’s nine-page ruling — issued under seal Dec. 3, but unsealed at noon Tuesday in U.S. District Court in Nashville — said a “subset” of more than 3,000 government documents he reviewed appear to undercut the government’s defense against vindictive prosecution.
“Specifically, the government’s documents may contradict its prior representations that the decision to prosecute was made locally and that there were no outside influences,” Crenshaw wrote.
The order is a partial victory for Abrego Garcia, the Salvadoran native who lives in Maryland, where he was stopped by immigration agents in March and deported to a notorious prison in El Salvador. His removal came without due process and despite an earlier court order that prohibited immigration officials from deporting Abrego Garcia to his home country, for fear of violence.
A series of court battles ended with the U.S. Supreme Court in April ordering Abrego Garcia be returned to the United States. He was finally brought back to the U.S. in June, where he faced new charges of human smuggling, stemming from a 2022 traffic stop in Tennessee where he was let go without a citation.
Abrego Garcia argues that the smuggling charge was concocted years after the fact to punish him for embarrassing the administration in court, and should be thrown out.
The charges of “conspiracy to unlawfully transport illegal aliens for financial gain” and “unlawful transportation of illegal aliens for financial gain” are tied to a 2022 traffic stop in Putnam County, Tennessee, where he was pulled over for speeding. There were nine passengers in the back of his car.
Abrego Garcia was not arrested. No ticket was issued.
But three years later, as he was winning his case to be returned to the U.S., federal prosecutors were revisiting that traffic stop. A Homeland Security agent told a federal judge earlier this year that he was told on April 28 of this year to investigate the traffic stop.
Abrego Garcia pleaded not guilty to the charges, that his attorneys have claimed were filed as retaliation against their client. They claim senior officials in the Justice Department pushed for the indictment, citing television interviews where Deputy Attorney General Todd Blanche said the investigation began after “a judge in Maryland … questioned” the government and accused it of “doing something wrong,” according to Crenshaw’s order.
The government denies involvement by higher-ups, saying the decision to prosecute Abrego Garcia was made solely by Robert McGuire, the U.S. Attorney for the Middle District of Tennessee.
Crenshaw’s order includes a timeline of events. In it are several communications between McGuire and D.C.-based U.S. Associate Deputy Attorney General Aakash Singh that began on April 27, one day before a federal agent was assigned to investigate the 2022 traffic stop.
In an April 30 exchange, Singh writes that Abrego’s case is “a top priority.” McGuire writes “we want the high command looped in.”
In a May 15 email, McGuire writes about the pending indictment.
“Ultimately, I would hope to have ODAG [Office of the Deputy Attorney General] eyes on it as we move towards a decision about whether this matter is going to ultimately be charged,” he wrote, according to Crenshaw’s order.
McGuire adds: “While ultimately, the office’s decision to charge will land on me. I think it makes sense to get the benefit of all of your brains and talent in this process and as we consider this case. I have not received specific direction from ODAG other than I have heard anecdotally that the DAG and PDAG would like Garcia charged sooner rather than later.”
Singh is updated about the indictment over the next week, according to Crenshaw’s timeline.
“These documents show that McGuire did not act alone and to the extent McGuire had input on the decision to prosecute, he shared it with Singh and others,” Crenshaw wrote.
Abrego’s attorneys successfully made a case before Crenshaw that prosecutors had acted vindictively. They sought the release of documents through discovery. Federal prosecutors balked and withheld those documents, citing privilege.
Crenshaw, in his now-unsealed order, said allowing the privilege assertion to trump due process protections would undermine rulings by other federal courts.
“The Court recognizes the government’s assertion of privileges, but Abrego’s due process right to a non-vindictive prosecution outweighs the blanket evidentiary privileges asserted by the government,” Crenshaw wrote. “If the work product, attorney-client, and deliberative process privileges asserted by the government precluded all discovery in the context of a vindictiveness motion, defendants would never be able to answer the question ‘what motivated the government’s prosecution?’”
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