Kilmar Abrego Garcia asked the US District Court for the Middle District of Tennessee on Thursday to dismiss the human smuggling charges against him.  He accused the Department of Justice (DOJ) of vindictive prosecution, saying that the Trump Administration is pursuing the case because it was ordered to return him to the United States.

Abrego Garcia is a citizen of El Salvador.  He entered the US illegally to escape the gang Barrio 18, which had threatened to kill his family.  In March 2019, he requested asylum under the Convention Against Torture.  In October 2019, he was granted “withholding of removal” status, which prevented him from being returned to El Salvador while his case proceeded.  During that time, he was supervised by Immigration and Customs Enforcement (ICE).

However, last year, ICE agents arrested him without a warrant.  He was deported to El Salvador, which the DOJ admitted was a mistake.  His case eventually reached the US Supreme Court, which ordered the administration to return him to the US.

Soon after his return, DOJ charged Abrego Garcia with human trafficking in connection with a traffic stop in 2022.  He was pulled over for speeding while driving a van that transported nine other people in Tennessee.  He was not arrested at the time and only received a warning for speeding.

In a court order issued, but sealed, in December, US District Judge Waverly Crenshaw wrote that there was a “realistic likelihood of vindictiveness” in DOJ’s prosecution of Abrego Garcia for human trafficking.  Judge Crenshaw wrote that, in a television interview, including Deputy Attorney General Todd Blanche said that the government started its investigation after “a judge in Maryland . . . questioned” the government’s decision, found that it “had no right to deport him,” and “accus[ed] [the government] of doing something wrong.”  The order also says, “some of the documents suggest not only that [Robert] McGuire, was not a solitary decision-maker, but he in fact reported to others in DOJ and the decision to prosecute Abrego may have been a joint decision.” McGuire was the acting U.S. attorney at the time.

“I knew we were maybe going to be in a courtroom like this,” McGuire told Judge Crenshaw about his decision to bring the human smuggling charges against Abrego. “I wanted to be the person in this chair, and not any of my colleagues.”  McGuire said that he was solely responsible for the decision to charge Abrego Garcia with human trafficking.

Vindictive prosecution happens when the government prosecutes a person in retaliation for exercising a legal right.  The allegation is difficult to prove because of the presumption of regularity, which is the courts’ presumption that prosecutors act in good faith and follow proper procedures.  United States v. Goodwin, a landmark case, held that a defendant must show that the charges were only brought as punishment for the exercise of rights and “could not be justified as a proper exercise of prosecutorial discretion.”