Lawyers for Salvadoran national Kilmar Abrego Garcia are urging a federal judge in Tennessee to cancel an evidentiary hearing on alleged vindictive prosecution and instead dismiss his criminal human smuggling case, arguing the Department of Justice is “stonewalling” efforts to examine who authorized the charges and why.
In a court filing Thursday, defense attorneys said the DOJ has refused to make ranking department officials available to testify about the government’s decision to pursue immigrant-smuggling charges against Abrego Garcia, 30, whose case has become an anomaly among the Trump administration’s more broadly successful immigration enforcement strategy. Defense attorneys argued that without that testimony, prosecutors cannot adequately rebut that the prosecution was pursued for improper motives.
“The government cannot meet its burden,” defense attorneys wrote, urging U.S. District Judge Waverly Crenshaw to dismiss the case outright rather than proceed with the two-day hearing set for next Tuesday and Wednesday. They accused prosecutors of withholding key documents and blocking access to senior officials, including Deputy Attorney General Todd Blanche, whom the defense has subpoenaed.
Blanche notably participated in a televised press conference with Attorney General Pam Bondi on June 6, the day Abrego Garcia was returned from El Salvador following his deportation in March, to announce human smuggling charges against him stemming from a 2022 traffic stop in Tennessee.
Former federal prosecutor Neama Rahmani told the Washington Examiner that motions to dismiss for selective or vindictive prosecution are “rarely, if ever, granted” and suggested the defense’s latest request may likewise struggle to gain traction before the court.
“To argue that the deputy attorney general has to testify or the case must be dismissed — I don’t think any judge, even a liberal judge, is going to go with that,” Rahmani said, noting the “very high bar” for probing top DOJ decision-making.
Rahmani compared the defense request to a hypothetical motion in the Hunter Biden criminal case in Delaware compelling multiple former U.S. attorneys to testify about why charges were pursued.
“Imagine the ancillary proceedings in all these types of cases,” he said. “If you’re putting prosecutors on trial and trying to get into their head as to why they decided to prosecute someone, that’s why these motions are always losers.”
Still, Rahmani acknowledged that if Blanche is somehow forced to testify, it would be “one of those unprecedented interviews.”
Federal prosecutors told the court Thursday that they may seek immediate appellate relief, including mandamus, if Crenshaw compels Blanche or his deputies to testify, a move that could halt next week’s hearing and drag the dispute into a new procedural battle.
Defense attorneys argue that is insufficient because Crenshaw has already found a “realistic likelihood” the indictment resulted from pressure by “senior DOJ and DHS officials,” not local prosecutors.
Abrego Garcia, who is accused by the Trump administration of being an MS-13 gang member, was indicted in June on two counts of transporting illegal immigrants after a 2022 traffic stop and was deported to El Salvador in March.
U.S. District Judge Paula Xinis of Maryland later ordered the government to return him to the United States, citing a 2019 immigration judge’s ruling that granted him limited withholding of removal to El Salvador because of his claim that he could be subject to violence from rival gangs. He now remains in the country under a temporary injunction placed by Xinis, which blocks his removal while retaliation claims are litigated in both Tennessee and Maryland.
DUAL COURT ORDERS SUGGEST ABREGO GARCIA WILL REMAIN IN US AT LEAST UNTIL NOVEMBER
The government is seeking Xinis to lift her order, and a hearing is scheduled before Thanksgiving to determine the request. DOJ lawyers said this week they would have hoped to deport him to Liberia as soon as Friday, but her injunction stands in the way.
A trial in the Tennessee case is scheduled to begin early next year if the charges survive.
