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Kilmar Abrego Garcia is a true victim of weaponization
The regime refuses to leave him alone *because* he's an everyday person.
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The Department of Justice used to be insulated from the whims of the president. It also used to be staffed with experienced, non-political career attorneys. And those attorneys used to enjoy a level of deference from the federal courts, a default presumption that is pretty much gone now.
Perhaps no case traces this fall better than that of Kilmar Abrego Garcia. Last week, US District Judge Waverly Crenshaw Jr. granted Abrego Garcia’s motion to dismiss his criminal indictment based on vindictive prosecution. It’s incredibly difficult to win these motions, but the administration’s treatment of Abrego Garcia has been so flagrantly unethical and cruel that he managed to prevail.
To understand why Judge Crenshaw tossed the charges, we need to go back to 2025 and revisit the DOJ’s abysmal behavior in Abrego Garcia’s separate immigration case. Indeed, Crenshaw’s decision shows that the DOJ landed on the genius idea of ginning up charges against Abrego Garcia as soon as it became clear their antics in his habeas case would not work.
“Vindictive” doesn’t do it justice
Last March, the administration deported Abrego Garcia to El Salvador’s horrific Terrorism Confinement Center (CECOT) despite a withholding of removal order barring him from being sent back to his home country, as he’d shown a credible fear that he would be persecuted there. He filed a habeas petition challenging his detention, and then the government played a bunch of stupid games, like admitting he was removed in error but then refusing to bring him back.
This went all the way up to the Supreme Court and back down again, but by April 17 of last year, the administration was running out of road after the Fourth Circuit Court of Appeals denied its request to pretty please stay the lower court order requiring Abrego Garcia’s return.
Now, thanks to Judge Crenshaw’s decision dismissing the indictment, we know that plans to indict Abrego Garcia began that same day.
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That extremely non-coincidental timing matters. Winning a vindictive prosecution motion requires a defendant to show that the government prosecuted them in retaliation for exercising their legal rights. It’s what is typically called a “but-for” test: But for Abrego Garcia filing his habeas petition demanding that the government bring him back to America, the DOJ would not have prosecuted him.
Getting to this point took a lot of time and a lot of fights with the government. A vindictive prosecution claim has to proceed in stages. Defendants can allege both actual and presumptive vindictiveness, as Abrego did here. The former, however, requires direct evidence of retaliation. Unless you have a prosecutor saying something like “we opened this prosecution to punish you for a constitutionally-protected right,” you are out of luck.
Most often, defendants prevail by showing presumptive vindictiveness, which is established by indirect evidence. A defendant has to show that the prosecutor had a stake in deterring them from exercising their rights and that the prosecutor’s conduct was unreasonable.
Here’s the catch: the defendant has to make that showing before obtaining any discovery materials from the government related to the decision to bring charges. But thanks to the cavalcade of bad behavior in broad daylight from the DOJ, Judge Crenshaw ruled last October that Abrego Garcia had met that burden.